A Sea of Confusion: Expert Legal Testimony Adrift in Florida
When addressing issues of domestic law, the general rule is that an expert’s dispositive legal testimony is inadmissible because it invades 1) the province of the court to instruct the jury concerning legal standards, and 2) the competence of the jury to apply the facts to the instructed law.1 However, there are exceptions — albeit ill-defined exceptions — to the recognized rule. This article focuses upon the ongoing confusion with regard to the nature and extent of permissible expert legal testimony.
Sections 90.403, 90.702, and 90.703 of the Florida Evidence Code, along with relevant precedent, form the basis for the rule. In addition, the Florida Supreme Court has recognized that “[t]he Federal Rules of Evidence may provide persuasive authority for interpreting the counterpart provisions of the Florida Evidence Code.”2 For this reason, Fed. R. Evid. 403, 702, and 704(a), their commentary, and germane federal case law provide additional insight.
The admissibility of expert legal opinions is ripe for clarification. While ostensibly applying the same rules, Florida appellate decisions often provide divergent guidance. Therefore, trial courts and practitioners are often left guessing as to the admissibility of expert testimony involving legal issues. One prospective solution is to read §§90.403, 90.702, and 90.703 in pari materia,3 and thereby permit explanatory expert testimony concerning legal issues when it will “assist the trier of fact in understanding the evidence or in determining a fact in issue,”4 and when it does not, merely tell the fact-finder which result to reach.
The trial court exercises broad authority concerning whether to admit expert testimony, and, on appeal, its decision will be reviewed for abuse of discretion.5 However, this deferential standard does not support a blanket refusal to permit expert legal testimony when it 1) is consistent with the applicable law; 2) assists the fact-finder in understanding the issues to be decided; 3) is phrased in such a manner that it does not merely tell the fact-finder how to resolve the issue; and 4) is not unfairly prejudicial, needlessly cumulative, or otherwise confusing or misleading.6 Some Florida decisions have essentially applied this suggested standard, but have not provided comprehensive reasoning. Accordingly, in an appropriate case, the Florida Supreme Court should resolve the issue by recognizing that this framework follows from §§90.403, 90.702, and 90.703, and hold that this standard must be followed.
Abrogation of the “Ultimate Issue” Rule
The common law of evidence recognized the so-called “ultimate issue” rule, which prevented witnesses from expressing opinions concerning the ultimate issues involved in a case.7 The rule’s purported basis was that such testimony would usurp the jury’s fact-finding function.8 However, the rule was exceedingly difficult to apply, and there was no clear standard to separate “ultimate” and “nonultimate” issues. When possible, courts avoided applying the rule.9
In 1975, the Federal Rules of Evidence were promulgated, and Rule 704 abrogated the “ultimate issue” rule in federal courts.10 The Florida Legislature followed suit in 1976 with its codification of the Florida Evidence Code,11 which the Florida Supreme Court subsequently approved in 1979 “to the extent that [the code’s sections] are procedural.”12 In particular, §90.703 of the code had the same effect as federal Rule 704(a): “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.”13
Nevertheless, Rule 704(a) and §90.703 do not permit all opinion testimony concerning dispositive issues. For example, the relevant commentary to §90.703 — which is highly similar to that accompanying Rule 704(a) — provides:
The abolition of the “ultimate issue” exclusionary rule does not admit all opinion testimony.. . . Section 90.702 limits expert opinion testimony to circumstances where the trier of fact will be assisted by such testimony in understanding the evidence or determining a fact in issue . Section 90.403 provides for exclusion of evidence for waste of time .
These sections. . . afford ample assurance that the admission of opinions which would merely tell the jury what result to reach will be excluded . In addition, an opinion phrased in terms of inadequately explored legal criteria where there was not a sufficient foundation to show expertise in determining the legal effect of the facts could be excluded. The question, “Did T have capacity to make a will?” could be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed.14
In a relatively straightforward manner, this commentary explains that §90.703 has abrogated the common law “ultimate issue” rule, but (in combination with related code sections) still prohibits expert testimony that 1) merely tells the fact-finder how to decide an issue; 2) consists of inadequately explored legal criteria; or 3) wastes time.15 The commentary also supports the following conversely stated principles. First, expert testimony addressing legal issues that does not simply tell the fact-finder how to decide an issue, but, instead, supplies probative information to help “understand the evidence or [to] determin[e] a fact in issue” may be permitted under §§90.702 and 90.703. Second, expert testimony may also be permitted when it is based upon adequately explored legal criteria in which a sufficient foundation supports the witness’ expertise to determine the potential legal effect of the facts. Of course, potential admissibility always assumes that the proffered testimony does not waste time, is not unfairly prejudicial, does not simply tell the fact-finder to reach a particular result, and is not needlessly cumulative or confusing.16
Conflicting Florida Precedent
Despite the commentary’s relative clarity, Florida precedent provides conflicting, difficult-to-resolve guidance regarding the admissibility of this type of expert testimony. One line of decisions provides that experts may not testify concerning legal issues,17 while, in contrast, another line essentially applies the rule-based framework suggested above.18 Still another line of cases recognizes both approaches, but fails to reconcile the conflict.19
The incongruous nature of these Florida decisions is especially apparent when attempting to determine whether an expert may address the meaning of legal terms. For example, in more recent decisions, the Second District Court of Appeal has taken a hard line stance against this type of testimony: “Expert testimony is not admissible concerning a question of law. Statutory construction is a legal determination to be made by the trial judge, with the assistance of counsels’ legal arguments, not by way of ‘expert opinion.’”20 In opposition to this explanation, the First District has recognized:
[S]ection [90.703] has been interpreted by the Florida courts to mean that the test of admissibility is not whether the opinion is on the ultimate issue in the case but whether it can qualify under the standard stated in [s]ection 90.702 [i.e., whether the expert testimony “will assist the trier of fact in understanding the evidence or in determining a fact in issue”]. . . .
Of course, there are instances when expert testimony on an ultimate issue will be rejected, such as where the question calls for an answer which tells the jury how to decide the issue and does not aid the jury in ascertaining the true facts.. . .
Many courts have interpreted [s]ection 90.703 or its equivalent[,] Federal Rule 704[(a),] as permitting witnesses to testify as to the substantive law relevant to the case, to draw legal conclusions and to suggest to the trier of fact the proper decision to reach.21
Through later decisions, the First District has further emphasized that legal experts may not simply instruct the fact-finder on how to decide a particular issue.22
The conflict is not restricted to the First and Second districts. In Bookhardt v. State, 710 So. 2d 700, 701-02 (Fla. 5th DCA 1998), the Fifth District upheld the trial court’s admission of expert legal testimony concerning the definition of the term “security” as used in F.S. Ch. 517:
The term “security” as used in Chapter 517 has a specialized legal meaning and testimony from an expert in the field of securities law would be helpful to a lay person in understanding the term. See §90.703, Fla. Stat. See generally McMullen v. State , [714 So. 2d 368 (Fla. 1998)]. Expert opinion testimony is not objectionable merely because it includes an ultimate issue to be decided by the trier of fact. §90.703, Fla. Stat. The expert testimony did not relate to an issue on which the expert lacked actual knowledge, compare Gamble v. State , 644 So. 2d 1376 (Fla. 5th DCA 1994), Fluellen v. State , 703 So. 2d 511 (Fla. 3d DCA 1997), and the trial court instructed the jury that it could believe or disbelieve any or all of the expert’s testimony.
Nonetheless, other districts have stated that it is impermissible for a trial court to allow expert testimony concerning the meaning of statutory terms. For example, the Third District has held that “[i]t is improper for a trial court to rely on expert testimony to determine the meaning of terms in a legislative enactment.”23
Doctrinal conflict also exists regarding the interpretation of insurance policy provisions. The First District has held:
The purpose of an expert witness is to aid the trier of fact in the quest for truth in those areas which are not of common knowledge. Obscure connotations of an insurance policy can be greatly illuminated by knowledge of custom and usage in the industry as well as the expert’s knowledge of terms which take on a different hue in the specialized field than in the field of general knowledge.
We feel that had the expert testimony been allowed in the present case, the jury would have been better informed as to the meaning of the policy terms and the usual method of handling claims under such policies; and, therefore, better equipped to properly resolve the issues of fact. Of course, there would have been no obligation on the part of the jury to accept the testimony of the expert as proof of the ultimate facts of the case.24
Conversely, in a decision applying Florida law, the 11th Circuit Court of Appeals held that a trial court abused its discretion by permitting expert legal testimony with regard to the scope of an insurer’s duty to defend. In the process, the appellate court reasoned:
Some lower Florida courts have stated that courts may admit expert testimony on the meaning of an insurance contract. Red Carpet Corp. of Panama City Beach v. Calvert Fire Ins. Co. , 393 So. 2d 1160, 1161 (Fla. 1st DCA 1981); Aetna Ins. Co. v. Loxahatchee Marina, Inc. , 236 So. 2d 12, 14 (Fla. 4th DCA 1970). These cases, however, appear inconsistent with the Florida Supreme Court cases holding that interpretation of an insurance contract is a question of law to be decided by the judge. See Jones [ v. Utica Mut. Ins. Co. , 463 So. 2d 1153, 1157 (Fla. 1985)]; Smith v. State Farm Mut. Auto. Ins. Co. , 231 So. 2d 193, 194 (Fla. 1970).25
Finally, uncertainty also exists regarding expert legal testimony and regulatory schemes. In Noa v. United Gas Pipeline Co., 305 So. 2d 182 (Fla. 1974), the Florida Supreme Court reversed a First District decision and upheld the admissibility of expert testimony addressing whether an object fell under a regulatory definition. The Supreme Court reached this holding by characterizing the relevant questions as “factual” in nature, but, in reality, the issue was one of mixed law and fact. Specifically, the expert testified that a particular gas line fell within a regulatory definition promulgated by the Florida Public Service Commission under a gas safety law previously passed by the legislature:
These were factual questions which a “highly qualified” expert engineer in gas line distribution technology could properly testify about. They were not readily answerable by the trial judge referring to the cold language of the regulations. The trial judge could properly allow an expert’s testimony to elucidate a clearer understanding of the safety regulations and their practical application for the benefit of the jury in resolving this factual issue of the case.26
Since the regulatory terms were technical in nature — and the gas line expert’s testimony resolved their meaning — his testimony was admissible because it assisted the court and the jury in understanding the evidence presented by the parties. Although this decision predates the evidence code, its result conforms to the requirements of §§90.403, 90.702, and 90.703.
If expert testimony regarding legal issues were per se impermissible, as some district courts of appeal have held,27 Then the Florida Supreme Court’s Noa decision would have been impossible. Further, later decisions that have attempted to characterize Noa as solely involving factual issues are inconsistent with the actual content of the gas line expert’s testimony; that is, he provided legal interpretation and direct testimony with regard to whether a regulatory definition was satisfied.28 The First District’s explanation of Noa in Krispy Kreme Doughnut Co. v. Cornett, 312 So. 2d 771, 774 (Fla. 1st DCA 1975), is more accurate and conforms to the analysis provided by the evidence code: “As we view. . . Noa, . . . [the Supreme Court] merely held that the trial court may permit expert testimony to aid in the interpretation of an administrative rule that is so technical in nature that the judge and jury cannot understand it without expert technical assistance.” In other words, the highly technical nature of the regulatory terms permitted the introduction of expert testimony because the expert’s regulation-based explanation assisted “the trier of fact in understanding the evidence or in determining a fact in issue.”29 The Florida Supreme Court’s later decision in Town of Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla. 1984), also supports the “helpfulness” approach. There, the court essentially held that a testifying expert may apply pertinent law to relevant facts when doing so assists the fact-finder and when the expert’s opinion is not couched in conclusory legal terms or merely tell the fact-finder how to resolve the matter.30
This overview of Florida’s hodgepodge approach to the issue highlights the need for a cogent framework to guide advocates and trial courts in determining the admissibility of expert legal testimony. As it stands, relevant Florida case law has been set adrift in a sea of contradictory doctrine. Hence, Professor Ehrhardt is simply being kind when he states that “[t]he distinctions drawn by the courts as to when this type of opinion testimony is admissible are often not clear.”31
Similar to the broader “ultimate issue” rule, the notion that all expert testimony touching upon legal issues is per se inadmissible is a vestige of a bygone common law era. Such a rule is inconsistent with the basic parameters established by §§90.403, 90.702, and 90.703, and is likewise inconsistent with a large number of Florida appellate decisions, including at least two opinions from the Florida Supreme Court. Common law rules that conflict with the evidence code cannot stand: “[The Code] shall replace and supersede existing statutory or common law in conflict with its provisions.”32 Consequently, Florida courts should apply the admissibility framework provided by the evidence code, which is the very guidance supplied by the commentary to §90.703.
Section 90.403 provides that otherwise relevant evidence is inadmissible if it 1) is unfairly prejudicial; 2) confuses the issues; 3) misleads the jury; or 4) wastes time by presenting needlessly cumulative evidence. Next, in relevant part, §90.702 provides that expert testimony is admissible if it “will assist the trier of fact in understanding the evidence or in determining a fact in issue. . . [and] can be applied to evidence at trial.” (Emphasis supplied.) Finally, §90.703 abrogates the “ultimate issue” rule, so that expert testimony may address “ultimate issue[s] to be decided by the trier of fact.”
Thus, the primary admissibility directive is that the proposed expert testimony must assist the fact-finder — be it a court or jury — “in understanding the evidence or in determining a fact in issue.” Expert legal testimony that simply addresses a point of law by definitively telling the fact-finder how to decide the issue is unhelpful, may be unfairly prejudicial when measured against its probative value, may confuse the fact-finder by misstating the law, or may waste time by simply duplicating the substance of what the court will provide in jury instructions or the law that the court will consider during a bench trial. However, as stated in the commentary to §90.703, not all expert legal testimony suffers from these defects. First, expert testimony addressing legal issues that does not simply tell the fact-finder how to decide an issue, but, rather, is helpful in understanding the evidence or in determining a fact in issue may be permitted under §§90.702 and 90.703. Second, expert legal testimony may also be permitted when it is based upon adequately explored legal criteria, and a sufficient foundation supports the witness’ expertise to determine the potential legal effect of the facts.
This is what the shared commentary to Federal Rule 704(a) and §90.703 intended by distinguishing between 1) a question asking an expert witness to simply direct the fact-finder how to decide the issue of testamentary capacity (“Did T have capacity to make a will?”), and 2) a question posed to an expert — following adequate exploration of pertinent legal criteria — that suggests to the fact-finder how the issue of testamentary intent might be resolved (“Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?”). Each of these questions is based upon an expert’s description of legal terms, but one is impermissible because it directs the fact-finder how to decide the issue without adequately explaining the relevant legal concepts, while the other is permissible because it is preceded by adequate background and simply suggests how the issue might be resolved. Several Florida and federal decisions recognize the significance of this subtle distinction and its corresponding effect on whether the proffered expert legal testimony is admissible.33 Similarly, Judge Padovano’s civil practice treatise approximates this distinction through an alternative hypothetical:
[T]he courts have found it difficult to distinguish an opinion that provides a factual predicate for a legal conclusion and an opinion that provides the legal conclusion itself. There is a difference. A lawyer can use expert testimony by an engineer as the factual basis for a legal argument that a building was not constructed in accordance with the building code. But the engineer cannot give direct testimony that the building was constructed in violation of the code because that would be a [pure] conclusion of law. . . . 34
Under the Florida Evidence Code, the proper analytical framework may be stated as follows: Expert legal testimony may be admitted when it a) is consistent with the applicable law; b) assists the fact-finder in understanding the issues to be decided; c) is phrased in such a manner that it does not merely tell the fact-finder how to resolve the issue; and d) is not unfairly prejudicial, needlessly cumulative, or otherwise confusing or misleading. The jury or a court presiding over a bench trial is always charged with, and capable of, rejecting expert testimony that it finds unpersuasive or unbelievable.35
This is not to suggest that expert legal testimony should frequently find its way into evidence; it should not. However, the underlying reason for this result is not that such testimony is per se inadmissible; rather, the true basis for excluding most expert legal testimony is that it is unhelpful, needlessly cumulative, and otherwise confusing or misleading.36 If the basic law is not highly technical or complex, or if the presiding court believes that it possesses the requisite information and materials to adequately charge the jury or to conduct a bench trial, then the court may act within its broad discretion and refuse to admit the proffered expert legal testimony. That being said, statements that claim expert legal testimony is always inadmissible (which have made their way into some Florida decisions) do not comport with the evidence code and better-reasoned Florida precedent.
Stated more broadly, future appellate decisions should apply the evidence code rather than adhere to remnants of the common law “ultimate issue” rule.
1 See Charles W. Ehrhardt, Florida Evidence §703.1 at 728-39 (2010 ed.);
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence §7:12 at 878-79 (3d ed. 2007).
2 Yisrael v. State, 993 So. 2d 952, 957 n.7 (Fla. 2008) (citing Sikes v. Seaboard Coast Line R.R., 429 So. 2d 1216, 1221 (Fla. 1st D.C.A. 1983); Charles W. Ehrhardt, A Look at Florida’s Proposed Code of Evidence, 2
Fla. St. U. L. Rev. 681, 682-83 (1974)).
3 See, e.g., E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009) (“The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” (quoting Fla. Dep’t of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005))).
4 Fla. Stat. §90.702 (2010); see also Fla. Stat. §90.703 (2010), Law Revision Council cmt.
5 See, e.g., Town of Palm Beach v. Palm Beach County, 460 So. 2d 879, 882 (Fla. 1984); Orpe v. Carnival Corp., 909 So. 2d 929, 930 (Fla. 3d D.C.A. 2005); see also Fla. Stat. §90.105(1) (2010).
6 See Fla. Stat. §§90.403, 90.702, and 90.703 (2010); see also Mueller & Kirkpatrick §7:12 at 878, 880-81 (“In some areas. . . courts admit expert testimony that is largely legal in content, finding the helpfulness standard satisfied.. . . Elaborate and carefully supported testimony having mixed legal and factual content is. . . often admissible.”).
7 See Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence Manual §13.04 at 13-32, 13-33 (2009);
Ehrhardt, §703.1 at 728-29;
Fla. Stat. §90.703 (2010), Law Revision Council cmt.;
Fed. R. Evid. 704, Advisory Comm. Notes.
8 See id.
9 See id.
10 See Fed. R. Evid. 704, Pub. L. No. 93-595, §1, 88 Stat. 1937 (Jan. 2, 1975) (prior to 1984 amendment). The 1984 amendment, which is not relevant for our purposes, reinstated a portion of the ultimate issue rule in federal court regarding “the mental state or condition of a defendant in a criminal case.”
Fed. R. Evid. 704(b).
11 See Laws of Fla. Ch. 76-237, §1.
12 In re Fla. Evid. Code, 372 So. 2d 1369, 1369 (Fla. 1979).
13 Compare Fla. Stat. §90.703 (Supp. 1976), with Fed. R. Evid. 704(a) (“[T]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”).
14 Fla. Stat. §90.703 (2010), Law Revision Council cmt. (emphasis supplied); see also Fed. R. Evid. 704, Advisory Comm. Notes (substantially similar in relevant part).
15 A prime example of expert legal testimony that would violate each of these prohibitions is that which merely tracks legal terminology and then provides the fact-finder with a definitive conclusion. See, e.g., Anderson v. Suiters, 499 F.3d 1228, 1237-38 (10th Cir. 2007) (upholding the trial court’s exclusion of expert legal testimony that merely concluded a matter was not “newsworthy” within a First Amendment context); United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002) (explaining that conclusory expert legal testimony which merely tracks “the language of the legal principle at issue or the applicable statute” is generally excluded as unhelpful and improper, but “[i]n many circumstances, a problematic question can be more carefully phrased to elicit similar information yet avoid a response that constitutes a mere legal conclusion”).
16 See Fla. Stat. §§90.403, 90.702, and 90.703 (2010).
17 See Briggs v. Jupiter Hills Lighthouse Marina, 9 So. 3d 29 (Fla. 4th D.C.A. 2009); Hann v. Balogh, 920 So. 2d 1250 (Fla. 2d D.C.A. 2006); In re Estate of Williams, 771 So. 2d 7 (Fla. 2d D.C.A. 2000); Lee County v. Barnett Banks, Inc., 711 So. 2d 34 (Fla. 2d D.C.A. 1997); Edward J. Seibert, P.A. v. Bayport Beach & Tennis Club Ass’n, Inc., 573 So. 2d 889 (Fla. 2d D.C.A. 1990); Lindsay v. Allstate Ins. Co., 561 So. 2d 427 (Fla. 3d D.C.A. 1990); Consol. Mut. Ins. Co. v. Ramy, 238 So. 2d 431 (Fla. 3d D.C.A. 1970).
18 See Palm Beach, 460 So. 2d 879; Noa v. United Gas Pipeline Co., 305 So. 2d 182 (Fla. 1974); Orpe, 909 So. 2d 929; Bookhardt v. State, 710 So. 2d 700 (Fla. 5th D.C.A. 1998); CSX Transp., Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th D.C.A. 1991); In re Estate of Lenahan, 511 So. 2d 365 (Fla. 1st D.C.A. 1987); 3-M Corp. v. Brown, 475 So. 2d 994 (Fla. 1st D.C.A. 1985); Red Carpet Corp. of Panama City Beach v. Calvert Fire Ins. Co., 393 So. 2d 1160 (Fla. 1st D.C.A. 1981); Aetna Ins. Co. v. Loxahatchee Marina, Inc., 236 So. 2d 12 (Fla. 4th D.C.A. 1970).
19 See Volusia County v. Kemp, 764 So. 2d 770 (Fla. 5th D.C.A. 2000); Rossi v. Brown, 581 So. 2d 615 (Fla. 5th D.C.A. 1991).
20 Barnett Banks, 711 So. 2d at 34 (citing Seibert, 573 So. 2d 889, review denied, 583 So. 2d 1034 (Fla. 1991)); Devin v. City of Hollywood, 351 So. 2d 1022 (Fla. 4th D.C.A. 1976)). See also Williams, 771 So. 2d at 8 (“[O]pinion testimony as to the legal interpretation of Florida law is not a proper subject of expert testimony.” (citing Barnett Banks, 711 So. 2d at 34)); Hann, 920 So. 2d at 1251-52 (“This court has repeatedly held that ‘opinion testimony as to the legal interpretation of Florida law is not a proper subject of expert testimony.’ Construction of language in a deed ‘is a legal determination to be made by the trial judge, with the assistance of counsels’ legal arguments, not by way of ‘expert opinion.’” (citing Williams, 771 So. 2d at 8; quoting Barnett Banks, 711 So. 2d at 34)).
21 Lenahan, 511 So. 2d at 370-71 (internal citations omitted) (citing Brown, 475 So. 2d 994; Palm Beach, 460 So. 2d 879; Guy v. Kight, 431 So. 2d 653 (Fla. 5th D.C.A. 1983); Red Carpet, 393 So. 2d 1160; Warwick, Paul & Warwick v. Dotter, 190 So. 2d 596 (Fla. 4th D.C.A. 1966); Bauman v. Centex Corp., 611 F.2d 1115 (5th Cir. 1980);
Charles W. Ehrhardt,
Florida Evidence §90.703 (2d ed. 1984)).
22 See Lindsey v. Bill Arflin Bonding Agency, Inc., 645 So. 2d 565, 568 (Fla. 1st D.C.A. 1994) (“While expert testimony may be relevant and helpful to the court where a statute or ordinance contains words of art or scientific and technical terms, even then such testimony cannot dictate the court’s construction of the enactment.” (citing T.J.R. Holding Co. v. Alachua County, 617 So. 2d 798, 799-800 (Fla. 1st D.C.A. 1993))); Fed. Ins. Co. v. Norris, 543 So. 2d 776, 777 (Fla. 1st D.C.A. 1989) (“To the extent that [the expert’s insurance-coverage] opinion had the effect of advising the jury how to decide the case, rather than assisting it in determining what had occurred, the testimony should not have been admitted.”) (citing Palm Beach, 460 So. 2d 879; Brown, 475 So. 2d 994).
23 Lindsay, 561 So. 2d at 428 (citing Devin, 351 So. 2d 1022).
24 Red Carpet, 393 So. 2d at 1161 (quoting Loxahatchee, 236 So. 2d at 14).
25 Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990).
26 Noa, 305 So. 2d at 185.
27 See notes 17 and 20 and accompanying text.
28 See Seibert, 573 So. 2d at 891-92 (attempting to restrict Noa to instances where an expert testifies “concerning disputed facts which would determine the requirements of” a regulatory scheme).
29 Fla. Stat. §90.702 (2010); see also Fla. Stat. §90.703 (2010).
30 Palm Beach, 460 So. 2d at 882 (citing Gifford v. Galaxie Homes, Inc., 223 So. 2d 108, 111 (Fla. 2d D.C.A. 1969)).
31 Ehrhardt, §703.1 at 737.
32 Fla. Stat. §90.102 (2010).
33 See, e.g., Palm Beach, 460 So. 2d at 882; Barile, 286 F.3d at 760.
34 Philip J. Padovano, Florida Civil Practice §19:10 (2009 ed.).
35 See, e.g., Bookhardt, 710 So. 2d at 701-02.
36 See Mueller & Kirkpatrick, §7:20 at 935-36 (“When expert testimony goes directly to the application of governing law to the facts of the case, it is usually excluded if it seems unhelpful, because it amounts to a kind of gratuitous advice telling the [fact-finder] how to decide the case, but in some settings it is admitted if the issue presents technicalities that the proffered expertise illuminates….”);
Ehrhardt, §703.1 at 729 (“Witnesses will be prevented from expressing their conclusions when the opinion only tells the [fact-finder] how to decide the case and does not help the [fact-finder] determine what occurred.”); Barile, 286 F.3d at 760 and note 7 (“Expert testimony that merely states a legal conclusion is less likely to assist the [fact-finder] in its determination.. . . We note, however, that ‘in some circumstances, opinion testimony that arguably states a legal conclusion is helpful to the [fact-finder], and thus, admissible.’” (quoting
Weinstein’s Federal Evidence §704.04[a] (2d ed. 2001))).
Nancy C. Ciampa is a board certified appellate attorney and shareholder with Carlton Fields, P.A., in Miami. Ms. Ciampa focuses her practice on complex civil appeals and trial support and graduated summa cum laude from the Shepard Broad Law Center at Nova Southeastern University.
David L. Luck is an associate with Carlton Fields and practices with Ms. Ciampa. Mr. Luck was previously a law clerk to Justice R. Fred Lewis of the Florida Supreme Court and graduated summa cum laude from the University of Miami School of Law.
This column is submitted on behalf of the Trial Lawyers Section, Clifford C. Higby, chair, and D. Matthew Allen, editor.