Court properly excluded expert testimony based on inadmissible lab report

Law Reporter, Nov 2003

EVIDENCE

Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058 (9th Cir. 2003).

The Ninth Circuit Court of Appeals held that a court properly excluded expert testimony from a fire investigator who based his conclusions on an inadmissible lab report.

Here, landowners sued a railroad for property damage resulting from a range fire that began on defendant's rightof-way. During the trial, defendant attempted to present expert testimony from a fire investigator who took samples from debris piles along the right-of-way and sent them to a forensic laboratory. The lab report stated that one sample contained gasoline. Based on this report, the expert was prepared to testify that the fire resulted from arson. The court ruled that the expert's testimony was inadmissible under Fed. R. Evid. 703 because it relied on the lab report as substantive evidence to prove the cause of the fire. A ju ry awarded plaintiffs damages.

Defendant appealed, arguing that the court improperly excluded the expert testimony because Rule 703 permits an expert to rely on another's report even if the report itself is not admissible.

Affirming, the Ninth Circuit noted that, when evaluating otherwise inadmissible evidence, an amendment to Rule 703 requires courts to determine whether the probative value of the underlying data substantially outweighs its prejudicial effect. Under this determination, presumptive evidence that is otherwise inadmissible will be kept out of a trial unless the potential prejudice is substantially outweighed by the probative value of the evidence. Focusing on the legislative history of the amendment, the court said Congress intended the change to create a presumption against disclosure to a jury of information used as the basis of an expert's opinion and not admissible for any substantive reason, when the information is offered by the proponent of the expert.

Applying these findings to the instant case, the court noted that the lab report was the only evidence of the presence of gasoline. Defendant's expert, however, used the report not as information on which an expert in his field would have reasonably relied in forming an opinion, but rather as substantive evidence of his conclusion that the fire was caused by arson. The report was otherwise inadmissible hearsay in the absence of foundation testimony by the lab that formulated the report. The prejudice that would result from admitting this report was substantial, whereas its probative value was minimal, the court found. Thus, the trial court was correct in refusing to admit the evidence, the court concluded.

Plaintiffs' Counsel

* Kurt M. Jackson, Great Falls, Mont.