Although expert opinions must be based in fact, they are still individualized opinions and are occasionally, as the New Jersey Appellate Court stated on July 5, based on an expert’s “gut feeling”.
In a construction claim case involving real estate valuation, expert witness J. Anthony Dowling admitted to basing his opinion on a “feeling of costs”. The testimony in Nevins v. Toll Brothers, Inc. reveals that approximately 90 percent of Dowling’s cost estimations were “gut feelings” without any data tying them to the plaintiff’s specific location or project. You can read a portion of the exchange between defense counsel and Dowling in this blog post on the decision.
Because Dowling is a professional construction cost estimator and has sufficient credentials to serve as an expert witness, the appeals court found his opinion to be valid testimony. The other factor influencing the decision was the precedent of similar testimony admitted in a similar case.
Despite this ruling, other cases suggest there is a trend toward requiring a more factual basis for expert testimony. Numerous cases have addressed the issue of what is, and is not, admissible testimony according to the Federal Rules of Evidence, Daubert and other standards. The common theme is a demand for more detail and more specific analysis related to the facts of the case.
For example, earlier this year the Federal Circuit Court of Appeals reversed a $388 million verdict based on the expert’s method for determining a reasonable royalty rate. In this damages case, the court concluded that the 25-percent rule was “fundamentally flawed” in its lack of a factual groundwork.
“[The expert’s] starting point of a 25 percent royalty had no relation to the facts of the case, and as such, was arbitrary, unreliable, and irrelevant,” Judge Linn wrote in Uniloc USA, Inc. v. Microsoft Corporation. “The use of such a rule fails to pass muster under Daubert and taints the jury’s damages calculation.”
This case addressed the larger issue of methodology while other recent rulings address the type of expert testimony admitted.
In 2010, a product liability case involving a $21 million jury verdict was overturned when the 6th Circuit Court of Appeals determined that the expert’s testimony fell on the wrong side of “the often-elusive line between admissible opinion and inadmissible speculation.”
"Because the 'knowledge' requirement of Rule 702 requires 'more than subjective belief or unsupported speculation,'" Judge Sutton wrote in Tamraz v. Lincoln Electric Company, "the testimony should have been excluded."
Despite these two recent cases demanding experts base opinions on facts, Dowling’s testimony based on “gut feeling” was admitted in Nevins. Although the court acknowledged that Dowling’s expert reports and testimony should not serve as a guide to any future expert, the New Jersey Appellate Court stated that “whether [Dowling’s opinion] is a convincing opinion is a question for the jury.”
Do you think that Dowling's testimony should have been admitted?