What's the difference between a "fact" witness and an "expert" witness?

William Rogel (00:00.558)

Please rise, court is now in session. I strenuously object.A legal podcast brought to you by the Pittsburgh law firm of Flaherty Fardo isnow in session. All those seeking information about the law and legal mattersaffecting the people of Pittsburgh and the Commonwealth of Pennsylvania, half-baked opinions and a dose of self -indulgence are invited to attend andparticipate. I want the truth! You can't handle the truth! The defensestrenuously objects. You would!

All right. Hello and welcome to I strenuously object. Thisis attorney Bill Rogel, partner in the Pittsburgh law firm, Flaherty Fardo, andI am flying solo today to do a little bit of cleanup, I suppose, as much asanything about one of our prior podcast episodes and to answer a question thatwas raised in it. So without a long monologue to introduce us and thus withoutany further ado, we did have a question. So this relates to...

We had done an episode a while back on whether or not youshould continue treating with a doctor if you've been a victim of medicalmalpractice, you go back to the same doctor. And there was a question about oneof the points we made there that was asked that I would like to have theopportunity to answer and expand upon a little bit. So Mike, what was thatquestion? Before I get to that, let me mention that if you'd like to listen tothat previous episode that Bill is referring to, it's titled, Understanding theCertificate of Merit.

and how it can make or break your medical malpractice case.That's one of the three questions that we answered in that episode. And thatcan be found on pghfirm .com's podcast page, in addition to all the podcastapps you're used to. But anyway, the question that we got after that episodewas this. You talked about a doctor being a quote, fact witness. Aren't allwitnesses fact witnesses? What does that even mean?

This is a fair question, and it's one of these legal termsof art where we use things in a way that kind of maps onto the English languagegenerally, but not always, right? So in some level, yeah, sure, every witnessis a fact witness. That's the fact, Jack! That's the fact, Jack! But thedistinction that was being made there is between an expert, right, an expertwitness and a fact witness. So an expert witness, you call and you specificallyhave to...

William Rogel (02:25.934)

tender their credentials to be able to render an opinionabout the case at issue or in the case of doctors, right? The treatment atissue, medical causation, whether someone deviated from the standard of care.You need an expert for these things. And there's a specific legal process forintroducing someone as an expert, getting them qualified in court as an expert,which then allows them to render opinions within this context. Now, I do wantto note there is a little bit of a difference, I would say.

I suspect you could teach an entire course, right? In somesort of journalism school about fact versus opinion and where these lines aredrawn. But for these purposes, we don't necessarily mean exactly the same thingby opinion versus fact as we do in other contexts, right? Well, you know,that's just like your opinion, man. So someone could, and I think in most ofthe rest of the world, we describe opinion versus fact as, you know,

An opinion is something that exists objectively outside thesubjective person who's speaking, right? So whether or not someone is a gooddriver, that term good, that's an opinion. In my opinion, that's a good driveror a bad driver. If on the other hand, I'm saying the car was going 53 miles anhour, that's a fact, right? In the way that we normally talk about this. It'sscience.

On the other hand, unless you were staring at thespeedometer, generally in the legal context, if someone is going to tell youthat the car was going 53 miles an hour, that's going to be what we in the kindof evidentiary world call an opinion, right? Because they're basing that notupon direct observation, but rather they're culling together based upon otherdata, other facts, things that are outside of their personal knowledge to reacha conclusion.

Right? And so you end up needing an expert to do an accidentreconstruction. And that expert uses the data for the speed cars are travelingand how long the tire marks are and how quickly a person can stop whentraveling at a certain speed. And they're able at the end of that to render anopinion, often in the form of a range of how fast the car was going. Now, thething that they're rendering their opinion about is a fact, right? But that iswithin the kind of legal world that we live in more along the lines of anopinion. And the general rule,

William Rogel (04:47.598)

is that witnesses are not supposed to testify about theiropinion, right? You can testify about what you saw, what you heard, what youfirsthand experienced, but you're not supposed to testify about your opinionsor like the conclusions that you reached based upon what it is that you saw orheard or experienced firsthand. Because that's usually the jury's job. You arestepping on the toes of the jury if you go from,

this car was traveling at faster than the speed limit tothis car was traveling in a dangerous and unsafe manner. As a witness, that'snot my job. That's the jury's job to decide if based on what I told them I saw,they believe that the car was traveling in an unsafe manner. So one thing Iwant to talk about in this regard, there's that scene in my cousin Vinnie andwe talked about.

My affection for my cousin Vinny is documented on thispodcast. It was my number one pick in our legal movies draft podcast. Butthere's a scene when Mona Lisa Vito, right, Vinny's fiance and Marisa Tomei'scharacter is on the stand and the kind of key moment when she realizes, basedon the picture that she took, that in fact,

the Buick Skylark that the defendants were driving could nothave made the tire marks in question. The defense is wrong! Because there is noway that these tire marks were made by a 64 Buick Skylark. These marks weremade by a 1963 Pontiac Tempest. Objection, Your Honor. Can we clarify to thecourt whether the witness is stating opinion or fact? This is your opinion?It's a fact. The car that made these two...

equal length tire marks had positraction. You can't makethose marks without positraction, which was not available on the 64 BuickSkylark. She says it's a fact. When you hear her go on to describe how shereached this conclusion, there's some opinion involved, right? Like whether ornot anyone would confuse a Buick Skylark with a Corvette. She may be right, butthis is quintessentially the sort of expert opinion that an expert would bemaking in trial, right?

William Rogel (07:04.782)

I looked at this image, I combined it with my expertise, myknowledge that goes beyond the normal person's knowledge of automotive historyand the way cars work to look at these and reach a conclusion. Within theconfines of what we call an opinion, that's an opinion. And the reason that'simportant, all of the stuff that came before that, right, where they had toargue whether or not she was in fact an expert and she tells you, you know, myfather was a mechanic, my brothers are mechanics. And then she talks about herown...

or all that stuff where they quote unquote voir dire thewitness, you wouldn't need any of that if that were a fact. If you were juststating fact, you don't need to make her a quote unquote expert first, right?Because facts exist outside of that expertise and don't require the expertise.The whole point in the law of making someone an expert is to loosen the rulesto allow them to give you opinion testimony. So that's kind of what I want totalk about a little bit is this distinction between a fact witness,

and an expert who is kind of fundamentally an opinionwitness. So as I mentioned before, generally the law frowns upon allowingwitnesses to give opinion testimony. And generally when you call a non -expert,you want that non -expert, that what we call a lay witness, you want theirtestimony to be limited to what they saw, what they heard, what theyexperienced themselves and have direct firsthand knowledge of. There's a ton ofevidentiary rules, whether it's the rule against hearsay or whatever they arethat basically

stop that witness from delving into what they know or whatthey have inferred based upon knowledge outside of the kind of four corners ofwhat they experienced. There are some places where lay opinion testimony isstill admissible. And in fact, in Pennsylvania, at least there's a specificrule of evidence. It's rule 701 that covers that, right? Rule 701 reads, if awitness is not testifying as an expert,

Testimony in the form of an opinion is limited to one thatis, A, rationally based on the witness's perception, B, helpful to clearlyunderstanding the witness's testimony or to determining a fact at issue, and C,not based on scientific, technical, or other specialized knowledge within thescope of Rule 702, which is the rule that covers expert testimony. So it'sinteresting to note, there are places where, when it's within the competency ofthe witness,

William Rogel (09:30.478)

And because it's a lay witness, that means not like theirprofessional competency, but like their general competency as a human beingwalking around in the world. They're allowed to render an opinion when thatopinion would be helpful. So one of the obvious examples here is estimating thespeed of a car that you see. Generally, the law says, if I witness an accident,I have enough knowledge generally as a lay person to give you a ballparkestimate of how fast I think a car was going.

I'm not sure how good people actually are at this, right?But we've decided over the course of any number of years and cases that this isevidence a person can give, even though to some extent it's an opinion. Theydidn't see that speed, right? Is it enough for them to just say he was goingtoo fast? Well, too fast is interesting, right? Because it depends on what youmean. If you want to say, I think he was going faster than 35 miles an hour and35 miles an hour is the speed limit.

Then in that case, yes, the witness is able to say, look, Ithink it was above that number, at least if it was relatively obvious. Now, toofast imports a certain overall judgment about speed for the conditions or whatis or is not safe. And that's probably lay opinion that is considered nothelpful to the jury. It's the jury's job to decide how fast is too fast. But Ican give evidence that leads to that estimate of speed. If I can't estimatespeed, how can I help the jury understand whether

the car was or wasn't going too fast. So there are timeswhen a lay witness is able to give opinion testimony, but that is theexception, not the rule. And the other important thing with a lay witness,unlike an expert is when they're able to give an opinion, it has to come fromwhat they directly observed. An expert is allowed to consider those thingsinforming an opinion. And when I say an expert, right? Like I said, there's aprocess where you ask the court.

And you will usually have a chunk of time where youestablish the experts credentials and whether or not they have sufficienttraining or experience or knowledge to be helpful to the jury in this regard.And then opposing counsel will have an opportunity to actually interrupt yourdirect questioning, as you saw in my cousin Vinny, right? And do voir dire ofthe witness, where they can now ask their questions about the witness'sexpertise and their knowledge and their background and whether or not they arein fact a witness, at which time the

William Rogel (11:51.246)

court is then asked to make a decision, right? Is thisperson sufficiently qualified to be an expert and offer opinions in this case?When the court says yes, what that does is opens up the expert to rely on morethan what the expert firsthand saw or heard experienced, right? We most oftensee this, though not exclusively, in the case of doctors in medical malpracticecases or any personal injury case where you need a doctor to come in and talkabout the injuries and the outcomes.

and what caused the injuries and what the future prognosisis. And those things aren't coming typically from that doctor's firsthandknowledge. This is usually not someone who treated the plaintiff at issue. Theydon't have direct factual knowledge of anything in the case, but they'reallowed to look at the medical records and the deposition testimony and x -rayimages or MRIs, whatever they're allowed to look at. And this can includethings that would be otherwise inadmissible, things that are hearsay, you know,things that other people said.

things that people who saw or investigated the accident havesubmitted in some sort of evidence or report. Heck, this can include a policereport. And police reports generally are not admissible. If you want theinformation that's in a police report to get into evidence, you usually have tocall the police officer to testify about their actual investigation. But if youhave an accident reconstructionist using statements in a police report and thataccident reconstructionist, the standard here is, are you relying upon thesorts of materials or information?

that generally people in your field of expertise are relyingupon. And if that answer is yes, then you're allowed to form your opinion basedupon even things that are otherwise inadmissible. And so when you have anexpert, that expert's able to take a much broader scope than their ownfirsthand personal experience and consider all of the evidence, eveninadmissible evidence, to reach an opinion about what happened in the case. Sowhen we said fact witness, what we mean is, hey, there's a difference between adoctor who treated you.

in terms of how you have to act during discovery, whetheryou have to submit an expert report. So in Pennsylvania law, if you're going tohave an expert testify at trial, the general rule is you have to submit, havethat expert submit a signed written report that sets forth what their opinionsare and what the basis for those opinions are. In a lot of other jurisdictionsand federal court locally, you're allowed to do discovery about the expert.

William Rogel (14:11.822)

You can ask them questions. You can even do a deposition ofan expert before trial. That simply isn't the thing that Pennsylvania statecourts do. So all the more reason we need to have a written report first so youdon't show up at trial hearing an expert offer an opinion and this is the firsttime you're hearing it and you have no chance to cross examine it or understandits bases and get your own expert to rebut them. Again, talking about my cousinVinny, we saw that here.

Mr. Wilbur, the expert in tires, shows up with no priornotice and no prior written report given to the defendants and then testifiesagainst them in a criminal trial. We compared the tire marks outside theconvenience store with the rear tires of the defendant's car. They're the samemodel and size tire. As much as I like a lot of the realistic touches in mycousin Vinnie, there is a zero percent chance that this evidence gets in.

Right? You can't go to trial without an expert and thenhalfway through the trial decide, oh, I found this guy. He's going to cometestify now. The court's not going to let that in. Once they do, of course,it's pure chaos. And now Vinny's also left finding an expert on short notice.And thank goodness he does. Right. But the rule is your expert has to submitthis written report, covers the opinions, cover the facts they rely upon, giveseveryone the opportunity to know in advance. A fact witness.

And even a fact witness who's going to offer opinions is notrequired to submit a report of that kind. Treating physicians are kind of up inthe air. It's a much bigger question about what they'll say if they end upbeing called in to testify as fact witnesses. And even if they're able to offeropinions, it's just a totally different process. Talking about treatingphysicians, it is worth pointing out that there are rules against thedefendants in a case.

assuming it's the plaintiff's treating physician as aninjury case, are entitled to do discovery with respect to treating physicians,right? They can do a deposition. They can request the medical records,typically do. But they are not allowed to independently contact them. The rules do not allow a defendant in any case, but an adverse party in a medicalmalpractice case or a personal injury case, to call your doctors and ask them,hey, you know,

William Rogel (16:29.87)

If we call you as a witness, what are you going to say? Tellme about this patient. I'm not allowed to do it. There are formal discoverythings that can be done with respect to a treating physician, but there is a separate prohibition against contacting them directly. So anyway, I hope thishelps answer the question. I hope this tells us a little bit more about what Imeant when I said fact witness, which does sound like a weird redundancy in thecontext of a medical malpractice case.

Okay, thank you for joining me on this solo, and hopefullynot too long winded edition of I Strenuously Object. Hopefully you got to learnsomething or enjoyed our time together in some form or fashion. If so, pleasesubscribe, rate and review the podcast. Tell your friends or your enemies tocheck us out. Please keep coming with those questions. It's easy for us, right?It gives me free content. So if you have any questions for our mailing it insegment, any feedback for the podcast whatsoever, email us at iobject .com.

at pghfirm .com. You can see us on Instagram at Istrenuously object podcast. And wherever you're encountering our content,there's probably a comment section or someplace where you can ask yourquestions directly. We will try to look out for them. We'll try to answer themif we can. If you have any other questions or have legal needs of your own,please, please, please visit Flaherty Fardo, our website that's at pghfirm.com. And until next and parting advice.

They named it San Diego. Which of course in German means awhale's vagina. No, there's no way that's correct. I'm sorry, I was trying toimpress you. I don't know what it means. I'll be honest, I don't think anyone knows what it means anymore. Scholars maintain that the translation was losthundreds of years ago.

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