While qualification of an expert witness is an evidentiary matter governed by rules of evidence, disclosure of an expert witness is a procedural matter, governed by rules of procedure. This article seeks to address both matters in the context of restaurant franchise litigation, through an analysis of the case of Jahanshahi v. Centura Development Co., Inc., 816 A. 2d 1179 (Pa. Super. 2003). This cause involved a dispute over negotiations for a lease agreement, in which Jahanshahi, et al. sought to lease a vacant fast food restaurant building to open a franchise restaurant of their own. After a jury verdict and award in favor of Jahanshahi, the parties appeal and cross-appeal, assigning a number of errors to the trial court. Only the issues of qualification and disclosure of expert witness testimony are addressed herein.
With regard to qualification, in its cross-appeal, Appellee Centura assigns error to the trial court’s qualification of Jahanshahi as an expert, because, as Appellees contend, Jahanshahi did not possess the “knowledge, skill, experience, training, or education required under Pennsylvania Rule of Evidence 702. The opinion testimony which Jahanshahi sought to offer concerned profits that had been lost as a result of the cancellation of the lease agreement. Citing to Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183, 185 (1997), the court noted, “In order to qualify as an expert in a given field, a witness must possess, at a minimum, more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. The test is whether the witness has a reasonable pretension to specialized knowledge on the subject matter in question.” (internal quotations omitted). In finding that Jahanshahi did possess specialized knowledge on the subject of lost profits, the ruling of the trial court was affirmed.
Appellee Centura also assigns error to the trial court for the admission of Jahanshahi’s testimony, on the basis that Jahanshahi was not disclosed as an expert witness during the discovery process. Appellees contend that disclosure is required by Pennsylvania Rule of Civil Procedure 4003.5(b), which provides that “[a]n expert witness whose identity is not disclosed in compliance with subdivision (a)(1) of this rule shall not be permitted to testify on behalf of the defaulting party at the trial of the action.” The testimony admitted by the trial court in Jahanshahi, for which appellees assert was in error, was as follows:
“[A]s to his experience working for various restaurants and food industry operators. He testified as to ownership interest in various restaurants including other restaurant franchises. He testified that he consulted with the Kenny Rogers’ corporate people as to how to go about determining whether or not the restaurant would be profitable. He testified of using comparative histories of other restaurants franchises and applying them to the demographic information he had obtained for the area of the proposed restaurant and that the source of that data was considered reliable in the industry.”
In affirming the previous ruling admitting Jahanshahi’s testimony, the court distinguished between opinions acquired or developed in anticipation of litigation as compared with that obtained in the anticipation of opening a restaurant franchise. Relying on Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525, 531-32 (1995), the court found Rule 4003.5 inapplicable, because Jahanshahi’s “opinions were not acquired or developed with an eye toward litigation.”
Although the assignments of error brought forth on appeal/cross-appeal were dependent on the law of the jurisdiction presiding over the matter, the underlying principles of the decision in Jahanshahi can be applied to similar matters in other jurisdictions, not only in litigation concerning restaurant franchises, but also in a variety of other civil disputes. For example, the decision in Jahanshahi was referenced in another Pennsylvania action involving the alleged negligence of a water company in the care and control of a water main. See, Ziegler v. Easton Suburban Water Authority, 43 A.3d 553 (2012). Likewise, the evidentiary principles discussed in Jahanshahi, have been cited by other jurisdictions, having similar rules of evidence and procedure, like in the Missouri case of Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, 155 SW 3d 50 (Mo. 2005).
As seasoned attorneys are likely aware, ascertaining the applicable rules of evidence, as well as rules of procedure concerning discovery, at initial stages of litigation, is always a necessary component to effective representation. By doing so, litigators will be able to appropriately determine when expert testimony is required, which individuals are qualified to provide such testimony, as well as when discovery rules require disclosure.
By: Alicia McKnight, J.D.