NCJ Number
118373
Journal
U.C. Davis Law Review Volume: 22 Issue: 1 Dated: (Fall 1988) Pages: 93-138
Date Published
1988
Length
46 pages
Annotation
Despite the logic that expert opinion seems the opposite of personal knowledge, the use of the expert witness in motions for summary judgment is growing.
Abstract
Summary judgment focuses on the existence or nonexistence of particular facts, and must be "made on personal knowledge." Unguided by any clear Supreme Court precedent, lower courts are increasingly encountering affidavits of expert witnesses supporting and opposing motions for summary judgment. Some decisions have summarily rejected slim expert affidavits containing almost exclusively opinion. These holdings seem compatible with the "personal knowledge" requirement. At the same time, increasing numbers of medical malpractice defendants move for summary judgment supported by expert affidavits. When a plaintiff does not counter expert affidavits filed by moving defendants, some courts grant a motion for summary judgment with minimal or no real analysis of the expert affidavit. The decisions rejecting and favoring expert participation are reviewed, along with expert testimony in the pretrial process. There is an attempt to reconcile two contradictory ideas: Modern policies encourage the use of experts in adjudication, but the focus of summary judgment seems directed toward objective facts and away from subjective opinion. The conclusion proposes that courts scrutinize expert affidavits rigorously to ensure that the proffered expert input is really helpful to the trier of fact. 222 footnotes.