Common Sense and FRE 702: Neither Common nor Sensical?

By Maggie Tamburro
Who would have imagined a pair of high heels, a ceramic tile floor, an Australian safety expert, and an outspoken appellate judge could cross paths, offering lessons about expert testimony along the way?

So it seems that life - and law – is full of surprises.

In a case where unrelated orbits intersect and learned minds differ, a recent dissenting opinion by one 11th Circuit U.S. Court of Appeals judge reveals how essential common sense is when determining admissibility of expert testimony.

Filed June 7, the dissenting opinion written by Judge Gerald Bard Tjoflat of the 11th Circuit criticized the 11th Circuit’s majority order not to reconsider (aka rehear en banc) a decision it made which granted plaintiff a new trial, allowing admission of her expert’s testimony.

Experts and attorneys are wise to take notice. Although a dissent is not binding precedent, Judge Tjoflat, with roughly forty years of experience on the federal bench, reveals important lessons about expert testimony, Federal Rule of Evidence 702, common sense, and juries.

Slippery when Wet?

The case, Rosenfeld v. Oceania Cruises, Inc., concerned a plaintiff - Ms. Lydia Rosenfeld - who fractured her shoulder when she slipped and fell on a ceramic tile floor in the buffet dining room of an ocean liner while cruising from Athens to Istanbul. In this negligence case, Ms. Rosenfeld claimed she slipped because the floor of the dining room was wet.

Meanwhile, defendant, owner of the cruise ship, claimed the floor was dry, and that the real cause of plaintiff’s fall was because she was running in a pair of high heels.

In order to prove her case, in the district court Ms. Rosenthal proffered the deposition testimony of an Australian floor safety expert, who had performed various friction tests with regard to the slip resistance of the flooring.

The expert had performed “standardized and internationally accepted friction testing on the floor in both a ‘saturated’ condition and a ‘dry’ condition” and then applied “the resulting friction-coefficient values to the minimum Australian standards for slip-resistance in food applications.”

The expert’s testimony certainly seemed to be the “product of reliable principles and methods” as required by Federal Rule of Evidence 702. But in the end, despite extensive scientific methodology and testing, apparently all the expert could conclude was that a tile floor could be slippery when wet.

Finding that the expert would not “provide helpful analysis,” the district court excluded the expert’s testimony on a pretrial order, and then again at trial.

The jury returned a verdict for the defendant.

On appeal, the 11th Circuit found that the district court abused its discretion in excluding the expert’s testimony, reversed the lower court’s ruling, and remanded the case, ordering a new trial for the plaintiff that allowed her to submit her expert’s testimony.

He Said, She Said

This brings us to the dissent.

The dissent concluded that the only true fact at issue was whether the floor was wet, and expert testimony couldn’t help the jurors with that determination.

So, reasoned the dissent, the real question for the jury was which witnesses were telling the truth.

Common Sense (and Sensibility)

Turning to examine Federal Rule of Evidence 702, the dissent concluded that the appellate panel, inter alia, erroneously applied section (a) in granting plaintiff a new trial and allowing her expert’s testimony.

Federal Rule of Evidence 702 states, in relevant part, that a witness qualified as an expert may testify if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;” (emphasis added by dissent).

The dissent also referred to the rule’s Advisory Committee Notes, which underscore the requirement of a common sense inquiry in stating:
'There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.’”

According to the dissent, matters of common sense, such as whether or not flooring is wet, do not require the use of expert testimony. Since determination of this fact is well within the experience of an average juror, the dissent concluded that the lower court reasonably acted within its discretion when it excluded the expert’s testimony.

Probative verses Prejudicial Value?

The dissent went a step further, also noting that in cases where an expert is allowed to improperly testify as to matters that do not assist the trier of fact or require specialized knowledge or skill, the effect is especially harmful stating,
[W]hen jurors need no assistance to understand the fact at issue, the expert’s testimony may lend undue credence to one party’s view of the facts because that testimony bears the imprimatur of an expert.”

Thus, said the dissent, cases such as this one illustrate the obvious: "[T]he more an expert’s testimony relates to common knowledge, the less its exclusion can be said to have prejudiced its proponent’s case. Indeed, such was the case here.”

A Little Common Sense Goes a Long Way

As the dissent makes clear, learned minds can differ about application of Federal Rule of Evidence 702. However, Judge Tjoflat’s dissent provides a stark reminder for attorneys and experts regarding the vital role common sense plays in admissibility of expert testimony, and the inherent dangers of using expert testimony to improperly bolster an issue well within the understanding of a jury.

In the expert arena, where much attention is devoted to reliability and methodology (i.e. Daubert and its progeny), the dissent drives home an important principle: Expert testimony must also pass a common sense test to be admissible.

Does it assist the trier of fact to understand the evidence or determine a fact at issue? If the answer is no, the most scientific and reliable methods will never pass muster, and may act to unfairly prejudice a party’s case.

Judge Tjoflat’s dissenting opinion is Rosenfeld v. Oceania Cruises, Inc., No. 10-12651 (11th Cir., June 7, 2012).

Your turn to weigh in: Do you think the expert’s testimony in this case should have been excluded? Should the 11th Circuit majority have reversed the lower court and allowed the expert testimony?
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Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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