Expert Opinion Testimony in Rhode Island

At the RI Bar Association meeting today, I went to a forum on opinion and expert testimony in RI state and federal courts.  Superior Court Judge Daniel Procaccini noted that a recent Rhode Island Supreme Court decision on an appeal of the termination of parental rights – In re Alexis L. – succinctly outlined state law regarding expert opinion (in this case, the qualifications of a domestic violence advocate as an expert):

Rule 702 of the Rhode Island Rules of Evidence provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion.” “The disjunctive conjunction [in Rule 702], which we must assume the drafters of the rule chose deliberately, suggests that an expert may be qualified on any of the five bases listed.” Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 176 (5th Cir. 1990) (interpreting Federal Rule of Evidence 702), overruled on other grounds, Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994). Furthermore, a proffered expert’s qualifications need not be exceptionally remarkable. See State v. Arroyo, 844 A.2d 163, 168 (R.I. 2004) (“somewhat limited” qualifications adequate); New England Telephone and Telegraph Co. v. Clark, 624 A.2d 298, 303 (R.I. 1993) (qualifications “need not be superlative or extraordinary”). Rhode Island law and practice concerning expert testimony “makes helpfulness to the trier of fact the crucial issue.” Rule 702, Advisory Committee’s Note.

Two additional cases noted by Judge Procaccini as important cases outlining Rhode Island law on expert opinion testimony were Neri v. Nationwide Mut. Fire Ins. Co., 719 A.2d 1150 and Owens v. Silvia, 838 A.2d 881.

Here’s Neri:

Rule 33(c) serves to prevent trial by ambush. The purpose of the rule “is to enable litigants to prepare for trial free from the elements of surprise and concealment so that judgments can rest upon the merits of the case rather than the skill and maneuvering of counsel.” Gormley v. Vartian, 121 R.I. 770, 775, 403 A.2d 256, 259 (1979). Because plaintiffs failed to notify defendant as required by Rule 33(c), Nationwide’s counsel was confronted with [**7] the surprise announcement that Neri would testify as his own causation expert. Additionally, because the trial justice denied its request for a voir dire outside the presence of the jury, defendant was forced to conduct voir dire in front of the jury, bereft of either notice or the opportunity to have prepared an informed inquiry.

Our standard of review here is whether the alleged Rule 33(c) violation prejudiced defendant, recognizing that HN7Go to the description of this Headnote.”forbidding a party to call a witness is a drastic sanction that should be imposed only if it is apparent that the violation has or will result in prejudice to the party asserting the violation.” Gormley, 121 R.I. at 775, 403 A.2d at 259. The plaintiffs have maintained that, even assuming a Rule 33(c) violation, Nationwide was not prejudiced because Nationwide’s counsel had deposed Neri and knew that Neri believed ice and snow accumulation had caused the trusses to fail. HN8Go to the description of this Headnote.There is quite a difference, however, between deposing a party who has made a claim for a loss and deposing an expert who is prepared to propound a theory on the cause of that loss. The cause of the damage was a critical issue in this case: if the damage resulted from a latent [**8] defect, the loss would be excluded under the insurance policy. But here defendant had neither the opportunity to depose Neri in his capacity as an expert, nor sufficient time to prepare for his cross-examination as a causation expert. Therefore, Nationwide was prejudiced by the failure of plaintiffs’ counsel to give notice of [*1153] his intention to call Neri as an expert witness on the critical issue of causation.

And here’s Owens, a medical malpractice case:

A trial justice’s ruling on the admissibility of an expert witness’s proffered testimony “will be sustained provided the discretion has been soundly and judicially exercised, that is, if it has been exercised in the light of reason applied to all the facts and with a view to the rights of all the parties to the action, * * * and not arbitrarily or willfully, but with just regard to what is right and equitable under the circumstances and the law.” Morra v. Harrop, 791 A.2d 472, 476-77 (R.I. 2002) (quoting DeBartolo v. DiBattista, 117 R.I. 349, 353, 367 A.2d 701, 703 (1976)). “The purpose of expert testimony is to aid in the search for the truth. It need not be conclusive and has no special status in the evidentiary framework of a trial.” Morra, 791 A.2d at 477. “[A] jury is free to accept [**13] or to reject expert testimony in whole or in part or to accord it what probative value the jury deems appropriate.” Id.


In determining whether the information upon which the expert proposes to testify is truly scientific knowledge pursuant to Rule 702, the trial justice must determine “whether the reasoning or methodology underlying the testimony is scientifically valid and * * * whether the reasoning or methodology properly can be applied to the facts in issue.” DiPetrillo, 729 A.2d at 687 (quoting Daubert, 509 U.S. at 592-93). Many courts have interpreted Daubert to liberalize the admission of expert testimony by providing a mechanism by which parties can admit new or novel scientific theories into evidence that may have previously been deemed inadmissible. David L. Faigman et al., Modern Scientific Evidence, § 1-3.4 at 26 n.74 (2002) (collecting cases). “The Daubert analysis does not establish a heightened threshold for the admission of expert evidence, but rather focuses on the court’s ‘gatekeeper’ role as a check on ‘subjective belief’ and ‘unsupported speculation.'” Ambrosini v. Labarraque, 322 U.S. App. D.C. 19, 101 F.3d 129, 134 (D.C. Cir. 1996). But HN12Go to the description of this Headnote.when the scientific foundation for an expert’s theory is so common and well understood [**20] that the proponent of the testimony can lay the foundation while qualifying the witness as an expert, the court may take judicial notice of the reliability of the knowledge or theory that undergirds the expert’s proposed testimony. DiPetrillo, 729 A.2d at 688. In such a case, a preliminary hearing may not even be necessary to establish the admissibility of the evidence. Id.

It was a great panel featuring Procaccini along with US District Court Chief Judge Mary Lisi and US District Court Judge William Smith among others.

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