The Plaintiff brought a defamation action against a Defendant for publication of numerous defamatory statements. One of the Plaintiff’s experts was the executive director of another charity.
Defendant filed a motion in limine challenging whether that charity’s executive director should be allowed to testify—either as a lay or expert witness—about why donors did not donate, as such testimony would be based on inadmissible hearsay. The Defendant further maintained that the charity’s executive director should not be allowed to testify as an expert on the issue of Plaintiff’s loss of donations due to the alleged defamation. Finally, Defendant contended that the executive director’s likely testimony did not meet the necessary standards for scientific reliability.
In the expert designation, the executive director stated he was “to offer opinion testimony in this matter regarding Plaintiffs’ damages.” He conducted a statistical analysis of the Plaintiff’s fundraising and compared this with the fundraising results of other Haiti-nonprofits. In addition, the executive director prepared a report that concluded that the attacks by Defendant caused precipitous declines in overall revenues.
Chief Judge John A. Woodcock, Jr. of the District Court for the District of Maine wrote in his opinion that “a judge exercising the gatekeeper role must evaluate whether the challenged expert testimony is based on reliable scientific principles and methodologies in order to ensure that expert opinions are not ‘connected to existing data only by the ipse dixit of the expert.’” However, “[w]hen the ‘adequacy of the foundation for the expert testimony is at issue, the law favors vigorous cross-examination over exclusion.’”
In applying Federal Rule of Evidence 702, the judge noted that, with little coursework in his field of expertise, the executive director’s formal education did not demonstrate that he qualified as an expert in financial or statistical analysis. Judge Woodcock next addressed whether the executive director qualified as an expert based on his knowledge, skill, experience, training, or education. The judge wrote, quoting the First Circuit, that “experts come in various shapes and sizes; there is no mechanical checklist for measuring whether an expert is qualified to offer opinion evidence in a particular field.”
The evidence on the record of the executive director’s on-the-job training in the field of statistical and financial analysis was, as the judge put it, “thin.” Judge Woodcock could not determine whether the executive director had ever performed this type of analysis previously, under what circumstances, whether his prior analyses were ever peer-tested, and the purposes for his earlier analyses.
The judge observed that most of the executive director’s analysis is a matter of common sense, but that he was not prepared to exclude or include the executive director as a financial and statistical expert. Rather, prior to his testimony, Judge Woodcock required the Plaintiffs to present evidence out of the hearing of the jury as to the executive director’s work or experience qualifications that allowed him to present the type of statistical and financial analysis that he proffered.
Nonetheless, assuming the Plaintiffs were able to demonstrate that their executive director expert witness was in deed an expert witness, Judge Woodcock did not have an issue with his testifying on the core findings in his statistical and financial analysis. The primary area of disagreement, the judge said, focused on the extent to which the executive director should be allowed to opine as to the causes for the fall-off in donations. The Defendant’s quarrels with the executive director’s testimony should be explored on cross-examination, the presentation of contrary evidence, and instructions on burden of proof over exclusion.
The executive director’s testimony about what individual donors told him as to their motivations behind reducing or stopping their contributions would be hearsay. But experts may be allowed to “rely on those kinds of facts or data in forming an opinion … [that] need not be admissible for the opinion to be admitted.” Further, the judge explained that the proponent of the opinion is allowed to disclose the facts or data underlying the opinion “only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”
Why people do and do not donate is often complicated, and the judge stated that he was not convinced that even as an expert the executive director should be allowed to simplify those motivations.
Given this analysis and explanation, Judge Woodcock was unclear as to how much of the executive director’s proposed testimony would meet the standards for admissibility under Federal Rule of Evidence 703, and whether the Plaintiffs intended to present evidence at trial from donors that were deterred from making donations to the charity because of the Defendant’s alleged defamation—instead of the donor’s individual circumstances, their investigation into the allegations, their dissatisfaction with the Charity’s response, or any other reasons.
Judge Woodcock held that the record was not clear and detailed enough to allow him to definitively conclude as to the admissibility of the executive director’s expert testimony as designated. As such, the Court dismissed the Defendant’s Motion in Limine to exclude the expert opinion.