Saturday, July 12, 2003

Lay Opinion Vindicated

The Fifth Circuit has issued an opinion subscribing to the view that officers and directors of commercial enterprises may opine on pricing and industry practices without being qualified as experts. See Texas A&M Research Found. v. Magna Transp., No. 02-40264 (5th Cir. July 9, 2003). Unfortunately, the link to the pdf file on the Fifth Circuit's web site isn't working, but if it were, the opinion could be found at:

http://caselaw.lp.findlaw.com/data2/circs/5th/0240264p.pdf

Pending repairs at the Fifth Circuit web site, a WordPerfect version is available at:

ftp://ftp.ca5.uscourts.gov/usca5/OPINIONS/last30/07-09-2003/02-40264.cv0

The Fifth Circuit's pronouncement is arguably dictum, because, as the opinion itself notes, the testimony at issue didn't really state an opinion at all, but merely reported an actual out-of-pocket expense. But dictum or no, the Fifth Circuit is not unique in holding the view that Fed. R. Evid. 701 permits corporate employees to give lay opinion on issues like lost profits and costs. See Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003).
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.