 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Gannett Co.5/3/2000
ord prepared a chart comparing Dr. Kanaga's net income with the "Average OB/GYN" practitioners on a national level. This chart, later introduced into evidence, is attached as an Exhibit to this opinion. Stapleford observed that "Dr. Kanaga's earnings went up, net and gross, at a rate that was almost double the rate of the average OB/GYN in the country over the time period 1982 through 1991 ... net earnings, 64 percent above and gross earnings, 37 percent above." Extrapolating from that data, Stapleford calculated the total income loss from 1992 to assumed retirement ages of 60, 62 and 65. Future losses were discounted to present value at the rate of six percent. In making his calculations of past and future earnings losses, Stapleford assumed that the newspaper article was the "cause of the decline" and that the past rate of decline would not dissipate through the remaining years of Dr. Kanaga's work life. In short, his projections of future wage loss assumed that Dr. Kanaga's earnings pattern would never recover from the effect of the libel.
Defendants twice filed motions in limine with respect to Stapleford's proposed testimony. Both motions were denied. Just prior to his testimony, the defendants renewed their objection to Stapleford's use of assumptions that were unsupported by the evidence. They also objected on the basis of hearsay to the use of dollar figures that were not in evidence. These objections were asserted post-trial in motions for a new trial and preserved for appeal. The Superior Court consistently ruled that the information upon which Stapleford relied was "the kind of information [upon] which experts in this field do rely" under D.R.E. 703 and permitted the testimony exemplified by the earnings chart. On appeal, Gannett renews those objections directed to Stapleford's trial testimony. It argues that the jury's undifferented damages for income loss attributable to the libel was based on a "before/after" calculation of income premised on unoffered and unadmitted income data. Dr. Kanaga, while conceding that the Schedule Cs were never actually admitted into evidence, claims they were nevertheless clearly admissible and would have been admitted if offered. She also asserts that the defendants were not prejudiced by this technical deficiency because they had ample opportunity, both during discovery and at trial, to review, cross-examine and rebut the earnings data relied upon by Stapleford.
The admissibility of the underlying data relied upon by Stapleford turns on an interpretation of D.R.E. 703. Under that Rule:
he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
To what extent an expert witness may rely on material facts not directly in evidence but assumed is an issue unresolved under D.R.E. 703. Further, there is a split of authority in the interpretation of Federal Rule of Evidence 703, which is identical to D.R.E 703. A majority of courts facing the issue take the position that while the "inadmissible data" relied upon by the experts in forming their opinion is admissible to explain their reasoning, that information is not admissible as substantive evidence to prove the truth of the matters therein. See, e.g., United States v. 0.59 Acres of Land, 9th Cir., 109 F.3d 1493, 1496-97 (1997); State v. Recor, Vt. Super., 549 A.2d 1382, 1388 (1988) (interpreting an identical Vermont Rule of Evidence). Rose Hall, Ltd. v. Chase Manhattan Overseas Banking Corp., D.Del., 576
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Delaware Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|