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How To Effectively Attack & Defend Expert Testimony: Conduit & Hybrid Expert Witnesses – Blog 4 Of 9

How to Effectively Attack & Defend Expert Testimony: Conduit & Hybrid Expert Witnesses – Blog 4 of 9

Post Series: How to Effectively Attack & Defend Expert Testimony

In determining whether to proffer or object to a particular expert, the trial attorney should pay close consideration to whether the expert is serving as a mere conduit for another person’s testimony.  An expert may not act simply as a well-credentialed conduit that does not provide any independent expert opinion. Smithson v. V.M.S. Realty, Inc., 536 So. 2d 260, 262 (Fla. 2d DCA 1988).  To be sure, Florida Statute §90.704 allows the expert to use facts or data from other sources, including hearsay, if the facts or data are of the type reasonably relied upon by experts in the subject area to support the opinion expressed, even if such information may not otherwise be admissible into evidence.  However, where the expert is merely repeating or presenting what others more experienced in the subject matter have told the expert, the expert merely serves as a conduit for another’s opinion and such testimony is inadmissible.  See Linn v. Fossum, 946 So. 2d 1032, 1038 (Fla. 2006); Rosario v. State, 175 So. 3d 843 (Fla. 5th DCA, 2015).

The trial attorney should also determine whether there will be hybrid fact/expert witnesses at trial.  A hybrid expert is a witness who may have firsthand factual knowledge of events involved in the case, but by education, training, skill or experience may also have opinions relevant to the case that could assist the trier of fact.  Downey v. Bobs Disc. Furniture Holdings, 633 F.3d 1, 5 (1st Cir. 2011).  Hybrid expert witnesses are particularly common in construction cases.

For example, design professionals involved in a construction project not only can testify as to facts involved in a construction dispute at trial, they may also serve as hybrid expert witnesses.  Similarly, the general contractor or specialty subcontractors involved in a construction project may testify as to factual events, but can also serve as hybrid expert witnesses and provide opinions.  Federal courts have held hybrid expert witnesses to the same Daubert Standard as specially retained experts.  See Downey, 633 F.3d at 5  (although hybrid experts are treated as expert witness they are exempt from the strict disclosure rules that require a report because they are not retained or specially employed to provide expert testimony); Sullivan v. Glock, 175 F.R.D. 497 (D. Md. 1997) (Hybrid Experts are not required to file detailed expert reports as they are not specifically retained to be experts, but must be disclosed like any other expert).

In the writer’s experience, Florida circuit courts have followed Federal precedent and required hybrid expert witnesses to meet Daubert muster.  Accordingly, in preparing to try a construction case, it is important that the trial attorney prepare any fact witnesses who may also offer expert opinions to withstand a Daubert challenge.

Failure to disclose that a fact witness with expert credentials may provide opinion testimony at trial could result in exclusion of such testimony.  In Federal court, hybrid experts are required to be disclosed as are any other experts, but they are not required to provide a written report. Downey, 175 F.R.D. at 5; Sullivan, 175 F.R.D. at 501-02.  While Rule 26 expressly addresses the disclosure requirement, the Florida Rules of Civil Procedure are less clear on the subject.  Nevertheless, the trial attorney should adequately disclose that a hybrid witness may provide expert testimony.  In the writer’s experience, the circuit courts have required timely disclosure of at least the general area of potential expert opinions that a hybrid witness may provide at trial.  This allows such witnesses to be fully deposed and avoid surprise at trial.

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