By Michael Hoenig - New York Law Journal -
August 11, 2011
We revisit a topic
discussed in our column nearly nine years ago.1 That
article posed a simple question: May a jury reject opinion
testimony of a well-qualified expert that is not contradicted or
impeached or discredited by the facts? We discussed seeming
conflicts in the case law and between then-recent decisions and
pattern jury instructions that routinely tell jurors they are
the sole judges of the facts and of witness credibility.
Nearly a decade later there
still seems to be some froth and fog enveloping this subject.
Because expert testimony is at the heart of products liability
litigation and medical experts routinely opine on critical
issues of damages, the tension created when jurors arbitrarily
disbelieve uncontradicted, unimpeached expert opinions gnaws at
vital elements of the justice system. If jurors truly are
empowered to reject all uncontradicted expert testimony solely
on purported "credibility" grounds—let's say, for example, the
jurors simply don't like the expert, or don't like the way he or
she dresses and, therefore, are "suspicious," or they dislike
his or her accent or speech pattern—then, how can courts be
given free rein to grant summary judgment motions based on the
affidavits of experts? After all, the affiant-expert may be
disbelieved by the jury if forced to testify to a jury.
Similarly, if juries have
unbounded discretion to discount uncontradicted, unimpeached
expert testimony that is harmonious with case facts, then how
can judges grant motions for new trials because the verdict was
against the weight of the evidence? After all, what the clear
weight of the evidence seems to be to a judge supplants the
purportedly unfettered right of the jury to make a "credibility"
assessment, i.e., to say, "we heard what the expert said but we
simply don't believe him." Yet, despite pattern jury
instructions about jurors having sole power to evaluate
believability of witnesses, summary judgment and post-trial
motion practice do not grind to a halt. The justice system
credits uncontradicted, unimpeached evidence offered by the
written or spoken word. This demonstrates that juror empowerment
to disbelieve such proof is limited. But, then, where is the
line to be drawn?
Clearly, jury instructions
routinely extol supremacy of jurors in judging the facts. In New
York's Pattern Jury Instruction (PJI) 1:37, for example, the
judge would tell them: "You are the sole, exclusive judges of
the facts. In that field you are supreme and neither I nor
anyone else may invade your province. As the sole judges of the
facts, you must decide which of the witnesses you believed, what
portion of their testimony you accepted, and what weight to give
Jurors are also told in PJI
1:41 that, in deciding how much weight to give to particular
testimony, they may consider the interest of the witness in the
outcome of the case, bias or prejudice of a witness, age,
appearance, the manner in which the witness gives testimony on
the stand, the witness' opportunity to observe the facts about
which he testifies, and, "the probability or improbability of
the witness' testimony when considered in the light of all other
evidence in the case." Indeed, the PJI committee comment
arrestingly declares: "The jury need not accept testimony
offered by a party simply because the opposing party offered no
What does this mean? Can
jurors freely disbelieve or disregard unrebutted or unimpeached
testimony simply because they are allowed to apply their own
tests of reliability based on their own personal experiences?
Can they simply reject an expert's testimony in a complex case,
for example, when that expert is superbly qualified and his or
her testimony on key points is not contradicted or impeached?
New York's PJI 1:90, a general instruction on expert witnesses,
is partially illuminating. PJI 1:90 would have the judge include
in the charge the following statement: "You may also reject the
opinion if, after careful consideration of all the evidence in
the case, expert and other, you disagree with the opinion." This
seems empowering. Can the jury simply "disagree" with the
The comment to PJI 1:90
copiously addresses many issues regarding expert testimony, but
is lean on our question. The comment says, "The weight to be
accorded expert testimony is a matter for the trier of fact."3
Later the comment says, "The jury is not required to accept the
entirety of an expert's testimony, even where it is
uncontradicted."4 The PJI comment then offers a "but
see" cite to
Calderon v. Irani,5 an Appellate Division,
Third Department case in which P sued D, a gynecologist, for
malpractice in causing the spread of cervical cancer by
misdiagnosis. P's expert, a gynecologic oncologist, testified
that P had an 80 percent chance of long-term survival had the
cancer been diagnosed earlier. This causation testimony was
undisputed. Nevertheless, the jury returned a defense verdict
finding that there was malpractice but that the deviation was
not a substantial factor in causing the injuries.
D appealed the grant of a
new trial contending that the jury was free to disregard the
expert's testimony in its entirety. The Appellate Division
rejected that argument. Referring to the language of PJI 1:90,
the Third Department reasoned that a jury's rejection of an
expert's opinion "cannot be made arbitrarily, but must be based
on conflicting foundational facts or opinion found in the
record." The court also noted its prior rulings that "a jury's
determination not to accept expert testimony and opinion must be
supported by other testimony or by the cross-examination of the
The court rejected D's
claim of "many discrepancies" because they either related to the
expert's opinion on failure to timely diagnose the condition, an
issue on which P prevailed, or because the extent to which the
expert was discredited on cross was "greatly overstate[d]." The
court concluded: "Absent any reasonable justification for the
jury's rejection" of the expert's causation testimony, the trial
court was correct in setting aside the verdict.7
Thus, a jury's rejection of undisputed expert testimony must
have a reasonable justification.
Older case law seems to
honor uncontradicted testimony when pitted against the claim of
unlimited jury discretion to disbelieve it. In
Chesapeake & Ohio Ry. Co.,8 the U.S.
Supreme Court in 1931 discussed the power of a jury arbitrarily
to disregard established facts. The Court recognized the
"general rule" that the question of credibility of witnesses is
one for the jury alone; "but this does not mean that the jury is
at liberty, under the guise of passing upon the credibility of a
witness to disregard his testimony, when from no reasonable
point of view is it open to doubt."
the Court found that the uncontradicted witness' testimony
disclosed "no lack of candor." It was "not shaken by
cross-examination…indeed…there was no cross-examination. Its
accuracy was not controverted by proof or circumstance directly
or inferentially; and, it is difficult to see why, if
inaccurate, it readily could not have been shown to be so. The
witness was not impeached; and there is nothing in the record
which reflects unfavorably upon his credibility." That the
witness was an employee of the party was not considered a valid
basis to reject the uncontradicted testimony.
The Court cited a slew of
older decisions generally acknowledging the role of the jury in
making credibility assessments but noted that, in many if not
most of them, there were circumstances tending to cast suspicion
upon the testimony or upon the witness, apart from the mere fact
that he was interested in the litigation. One of the cases cited
was Hull v. Litauer,9 in which the New
York Court of Appeals, after acknowledging the general rule
about jury assessment of credibility, stated: "Where, however,
the evidence of a party is not contradicted by direct evidence,
nor by any legitimate inferences from the evidence, and it is
not opposed to the probabilities; nor, in its nature,
surprising, or suspicious, there is no reason for denying it to
Quintana-Ruiz v. Hyundai Motor Corp.,11
the plaintiff mother sued an auto manufacturer alleging
defective design when her daughter was injured upon deployment
of an airbag. The jury found in favor of plaintiff and awarded
damages. Defendant appealed. The U.S. Court of Appeals for the
First Circuit discussed whether the jury could reject, on the
ground of "bias," the well-qualified defense experts' powerful
testimony on design of airbags. The only bias asserted was that
the defendant manufacturer paid the experts' consulting fees and
that both defense experts primarily, although not exclusively,
work for the defense side in such cases.12 The panel
said: "A jury is not 'at liberty, under the guise of passing on
the credibility of a witness, to disregard his testimony, when
from no reasonable point of view is it open to doubt.'"13
Generally, said the court, "a jury may not reject testimony that
is uncontradicted and unimpeached (directly, circumstantially,
or inferentially) unless credibility is at issue…. Juries, for
instance, may reject uncontradicted, unimpeached testimony when
it is improbable, inherently contradictory, riddled with
omissions, or delivered in a manner giving rise to doubts." But,
the panel added, "[t]here must otherwise be some affirmative
evidence in the record to put the witness' credibility in
The First Circuit further
observed that the "general rule" that a jury verdict cannot be
based solely on the jury's rejection of the other side's
uncontradicted testimony "applies with particular force to
expert testimony on matters outside of lay competence." While
juries may decide what weight to give expert testimony, they are
not "at liberty to disregard arbitrarily the unequivocal,
uncontradicted and unimpeached testimony of an expert witness
where…the testimony bears on technical questions…beyond the
competence of lay determination."15
The court further held that
the mere fact that defendant paid the experts' fees "cannot
alone establish bias to overcome plausible and uncontradicted
evidence that the design benefits outweighed any risks." Thus,
the defendant proffered reliable expert testimony and "the jury
could not simply disregard such testimony."
The First Circuit adhered to this approach in a later tobacco
products liability case,
Cruz-Vargas v. R.J. Reynolds Tobacco Co.,16
where a heavy smoker died due to hypertension which plaintiffs
attributed to his habit. A jury returned a plaintiffs' verdict.
The trial court, however, granted defendant's motion for
judgment as a matter of law. One issue was whether there was
common knowledge in Puerto Rico about the health hazards and
habit forming nature of cigarettes. A defense expert in
Caribbean social history, using competent methodology, had
testified that the average consumer was aware of the health
risks. The appellate court said that since the expert's
testimony was neither improbable nor contradicted, it "must be
permitted to stand." The cross-examination brought to light no
contradictions undermining the expert's testimony or information
suggesting it was wrong.
Plaintiffs contended, however, that the jury was instructed
to give the expert opinion "such weight as you think it
deserves." The court noted that such language is not a carte
blanche for a total rejection of expert testimony. "[T]he jury
could not reject the substantive, uncontradicted and unimpeached
evidence upon which [Luis] Martinez' opinion was based." While
the instruction permitted the jury, "in the event of conflicting
evidence," to reject the expert's resolution of the conflict,
"it did not allow the jury to reject the only evidence presented
on the issue for no apparent reason."17 Accordingly,
judgment for defendant as a matter of law was upheld.
According to a law review case note published in 2006,18
the U.S. Court of Appeals for the Seventh Circuit, along with
the Fourth and Sixth circuits, have taken a strong position that
uncontradicted and unimpeached testimony is conclusive and the
jury cannot disregard it simply because the jurors disbelieve
interested witnesses.19 The case note posits that two
other decisional "camps" exist, one in which the jury may, but
is not required to, accept as true uncontradicted
testimony—including in this "camp" the U.S. Court of Appeals for
the Second Circuit—and the remaining "camp," which the author
refers to as the "middle ground on this issue," namely, that
juries are required to accept the uncontradicted testimony of
interested witnesses, unless the witness' credibility is in
doubt or where circumstantial evidence exists to support a
disbelief of the witness' testimony.20
Such general categorizations present problems, however, and
can mislead. In
Powers v. Bayliner Marine Corp.,21 the
products claim against a boat manufacturer alleged that defects
caused the sailboat to capsize resulting in fatalities and
injuries. An expert testified for plaintiff on the allegedly
deficient boat design. The defense pointed to the bad weather
and abundant negligent behavior as a sole proximate cause of the
event. The jury was specifically instructed that it was not
required to accept testimony even if was uncontradicted and the
witness was not impeached. Indeed, the jury was charged that it
could decide based on the "witness' bearing and demeanor or
because of the inherent improbability of his or her testimony or
for other reasons you find sufficient, that such testimony is
not worthy of belief." The jury found no defect.
On appeal plaintiff argued that the jury's rejection of its
expert's testimony regarding the sailboat's design merited
judgment as a matter of law or a new trial. The Sixth Circuit
panel, in a 2-1 vote, affirmed judgment for defendant. In the
course of analyzing the record, however, the court said, "[T]he
jury could have rejected [the expert's] testimony even if
uncontradicted," citing a number of cases for that proposition
including one from the Seventh Circuit. Yet, the case note
article referred to above had placed both the Sixth and Seventh
circuits within the most stringent "camp" that held juries may
not reject uncontradicted testimony. This demonstrates the need
for care in making sweeping generalizations on this thorny
question. The majority of the panel in Powers
nevertheless affirmed the judgment for the sailboat maker
because the expert's testimony was found not to be
Venerable and recent case law suggests that uncontradicted,
unimpeached, unrebutted expert testimony cannot simply be
ignored despite the talismanic charge that the jury is the sole
judge of a witness' credibility or the weight to be given to his
or her testimony. The real question is whether the record,
cross-examination, case facts, proofs and reasonable inferences
genuinely offer conflicting foundational facts or opinion or
real justification to reject the uncontested expert's testimony.
Obviously, there is much room here for incisive advocacy.
The jury's rejection of an expert's unrebutted opinion cannot
be made arbitrarily. The broad instructions given to juries may
inform and empower them but they do not create a legal standard
by which arbitrariness, instinct and whim can rule the jury
room. Similarly, such jury charges ought not be an escape hatch
through which judges avoid making the hard decisions in
post-trial motions or appeals.
Michael Hoenig is a
member of Herzfeld & Rubin.
"Jury Rejection of Uncontradicted Expert Testimony," New York
Law Journal, Sept. 18, 2002, p. 3.
2. 1A New York
Pattern Jury Instructions, Civil, PJI 1:41, comment, p. 57 (3d
3. Id., PJI,
1:90, comment, at 146-147..
4. Id. at 147
Preston v. Young, 239 AD2d 729, 657 NYS2d 499;
Mechanick v. Conradi, 139 AD2d 857, 527 NYS2d 586;
Halvorsen v. Ford Motor Co., 132 AD2d 57, 522 NYS2d
5. 745 NYS2d
610 (3d Dept. 2002).
Calderon, 296 A.D. 2d 778, 745 NYS2d at 612 (citing
Prescott v. LeBlanc, 247 AD2d 802, 803, 669 NYS2d
Baker v. Shepard, 276 AD2d 873, 875, 715 NYS2d 83;
Kalfus v. Margolies, 88 AD2d 528, 450 NYS2d 189).
Calderon, 745 NYS2d at 612.
8. 283 U.S.
209, 216-218 (1931).
9. 162 N.Y.
569, quoted in Chesapeake, 283 U.S. at 217-219.
10. Quoted in
Chesapeake, 283 U.S. at 218.
11. 303 F.3d
62, 2002 U.S. App. LEXIS 17716 (1st Cir. Aug. 27, 2002).
Quintana-Ruiz, 2002 U.S. App. LEXIS, at *33 to *44.
13. Id., 2002
U.S. App. LEXIS at *35 (citing Chesapeake & O. Ry. Co. v.
Martin, 283 U.S. 209, 216 (1931);
Sonnentheil v. Christian Moerlein Brewing Co., 172
U.S. 401, 408 (1899);
Chicago, Rock Island & Pac. Ry. Co. v. Howell, 401
F.2d 752, 754 (10th Cir. 1968)) ("The fundamental rule which
makes the jury the sole judge of the weight and credibility of
testimony is subject to the caveat that testimony concerning a
simple fact, capable of contradiction, not incredible, and
standing uncontradicted, unimpeached, or in no way discredited
by cross-examination must be permitted to stand").
Quintana-Ruiz, 2002 U.S. App. LEXIS at *37.
15. Id., LEXIS
at *40 (citing
Webster v. Offshore Food Service Inc., 434 F.2d 1191,
1193 (5th Cir. 1970);
Bearman v. Prudential Ins. Co., 186 F.2d 662, 665
(10th Cir. 1951)).
16. 348 F.3d
271 (1st Cir. 2003).
Cruz-Vargas, 348 F.3d at 278.
18. L. Perrone,
"Judicial Takeover: Should Juries Be Required to Accept as True
the Uncontradicted and Unimpeached Testimony of an Interested
Party or Witness?," 7 Florida Coastal L. Rev. 761 (Summer 2006).
19. Id. at
Stratienko v. Cordis Corp., 429 F.3d 592, 596 (6th
Sarkes Tarzian Inc. v. U.S. Trust Co. of Fla. Sav. Bank,
397 F.3d 577, 585 (7th Cir. 2005);
Anderson v. Russell, 247 F.3d 125, 129-30 (4th Cir.
Perrone, 7 Florida Coastal L. Rev. at 762-769. The Second
Circuit case cited is Book v. Dettenrieder, 14 F.
App'x 40, 43 (2d Cir. 2001) (unpublished opinion). In Book,
however, plaintiff's testimony was contradicted by "an ample
evidentiary basis for the jury refusal to believe Book's
testimony on her pain-and-suffering for a wrist fracture." This
consisted of plaintiff's statements to her doctor and her
resumption of training and competition as an elite bicycle
21. 83 F.3d 789 (6th Cir. 1996).
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