Tuesday, September 13, 2011

Judge Terrence Nealon of Lackawanna County Addresses Competency of Expert Opinions and Propriety of Hypothetical Questions

It's not often that I post a write-up of a criminal court opinion but, on occasion, those opinions can contain nuggets of law useful in the civil litigation context.

For example, on pages 21-27 of Lackawanna County Judge Terrence R. Nealon's September 9, 2011 Opinion in the vile first degree murder case of Commonwealth v. Blakey, No. 2008 - Criminal - 982 (C.P. Lacka. Sept. 9, 2011, Nealon, J.), there is a discussion of the degree of certainty required for expert opinions and the evidentiary support needed to present hypothetical questions to experts at trial.

The issues centered around the prosecution's calling of a medical witness to testify on the cause of death.  That doctor noted in his testimony that his opinion was to a reasonable degree of medical certainty but, at one point, couched his opinion in terms of "most probably."

In his Opinion, Judge Nealon provides a nice recitation of the law pertaining to the certainty required of expert opinions and reconfirmed the notions that expert opinions should be reviewed in their entirety and that experts are not required to use "magic words" to render the opinion competent and admissible.

More specifically, Judge Nealon held that the fact "that an expert may have used less definitive language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty.”  Vicari, 936 A.2d at 510 (quoting Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super. 2004), app. denied, 584 Pa. 698, 882 A.2d 1004 (2005))."

In terms of the use of hypothetical questions to experts during trial testimony, Judge Nealon noted that the propriety of such questions remains within the discretion of the court.  He also reviewed the types of underlying facts that are acceptable within these types of questions.

Anyone desiring a copy of Judge Nealon's Opinion in the case of Commonwealth v. Blakey can contact me at dancummins@comcast.net.

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