Expert witness may testify only as to the matters disclosed in expert report

Recently, the District Court for the Middle District of Florida (Jacksonville Division) ruled that an expert witness may testify only as to the matters disclosed in his expert report. This observation was made in Leslie Woodruff v. R.J. Reynolds Tobacco Company and Philip Morris USA, Inc. (2015 U.S. Dist. LEXIS 14470). In this case, Leslie Woodruff, the plaintiff, alleged that George Woodruff, whose estate the plaintiff represents, succumbed to bladder cancer caused by smoking. He sued the tobacco manufacturing companies R.J. Reynolds Tobacco Co. And Philip Morris USA, Inc., accusing them of certain business malpractices which resulted in increased health dangers to consumers of their products.

The defendants argued that Dr. Neil Grunberg, one of the plaintiff’s expert witnesses, cannot testify about smoking cessation aids because, inter alia, because he failed to disclose this opinion in his expert report. The Court granted their motion for excluding Dr. Grunberg’s testimony to this extent.

Another trend emerging from the observations of the Court was that expert evidence apparently irrelevant to the facts of the case may be admitted in certain situations. Firstly, the court allowed speculative opinions by Dr. Steinberg, an expert witness for the defendants. Dr. Steinberg in his testimony had commented about the possibility and likelihood of exposure of Mr. George Woodruff, who worked as a tool-and-die maker, to certain carcinogenic substances such as petroleum based products, nitrosamines and aromatic hydrocarbons, and about the likelihood of certain metabolic, genetic and environmental factors contributing to his ailment. The plaintiffs contended this opinion to be “baseless and prejudicial”. However, the Court, reading from the opinion of the 11th Circuit in Aycock v. R.J. Reynolds Tobacco Co. (769 F.3d 1063), noted that while a defendant may offer evidence for a potential alternative cause for a disease or injury, he does not have to prove the alternative-cause theories with certainty or probability. The Court denied the plaintiff’s motion on this point stating that the expert opinion provided enough support for the argument of the defendants for an alternative cause than the one alleged by the plaintiff.

On the other hand, the Court denied the defendant’s motion to exclude the opinion of Dr. Burns, another expert witness for the plaintiff, that changes in cigarette design have increased the risk of developing lung cancer. The defendant argued that this opinion was irrelevant by virtue of the fact that Mr. Woodruff suffered by bladder cancer, not lung cancer. The Court, however, was persuaded by the plaintiff’s submission that such opinion would only be introduced only for the purpose of rebutting any evidence offered by the defendants to show that cigarettes have become safer over the years. The court also allowed the plaintiff to introduce the expert opinion of Dr. Robert Proctor that the defendants have failed to admit certain facts as to the addictive nature and health effects of cigarettes, as such opinion would be relevant with respect to the defendants’ statute-of-repose defence and the determination of punitive damages.

Further, the Court denied the defendants’ motion to exclude Dr. Grunberg’s opinion alleging that he lacked the requisite expertise to offer expert opinion on vertain issues. The Court took note of the prior observations made in Kerrivan v. R.J. Reynolds and Dover v. R.J. Reynolds, concluding that the fact that the fact that Dr. Grunberg is not a medical doctor does incapacitate him to testify as an expert witness, as he has the necessary qualification and experience to opine on the medical cause of Mr. Woodruff’s smoking related disease and on the minimum effective dose of nicotine.

ofnenicotine causing addiction.