5th Circuit Upholds Testimony from Grief Expert
A Fifth Circuit panel has upheld the admissibility of testimony from a "grief expert." See Vogler v. Blackmore, No. 02-41527 (5th Cir. Nov. 25, 2003) (Reavley, Jones, & Clement, JJ.).
The claims in Vogler arose from a vehicular accident in which a woman and her three-year-old child were fatally injured. In the family's wrongful death action against the driver, the district court admitted expert testimony on plaintiffs' behalf from thanatologist Dr. Phyllis Silverman. Because the expert had not interviewed or evaluated the plaintiffs themselves, the trial court limited her testimony to general theories of grief and recovery.
Holding that no proper challenge had been raised to the witness's qualifications or to the reliability of her testimony, the Fifth Circuit panel focused on the question whether the testimony was helpful to the trier of fact. Defendants argued that the average juror would not require expert testimony to understand the grief experienced by a family member on the death of a loved one, and raised the danger that expert evidence on that subject would serve as a surrogate for testimony from the family members themselves. While acknowledging these points, the Fifth Circuit concluded that the trial court did not abuse its discretion in admitting the testimony after weighing its probative value against its potential prejudicial effect.
The panel went on to hold that even if the testimony should have been excluded, any error was harmless, because other evidence amply supported the jury's damage award. "It is highly unlikely," wrote the panel, "that Dr. Silverman's testimony aided in the jury's resolution of the case or in its awards to [plaintiffs]." Whatever one may think of the appellate outcome, this is an odd sentence to find in a decision upholding the admissibility of expert testimony.
The claims in Vogler arose from a vehicular accident in which a woman and her three-year-old child were fatally injured. In the family's wrongful death action against the driver, the district court admitted expert testimony on plaintiffs' behalf from thanatologist Dr. Phyllis Silverman. Because the expert had not interviewed or evaluated the plaintiffs themselves, the trial court limited her testimony to general theories of grief and recovery.
Holding that no proper challenge had been raised to the witness's qualifications or to the reliability of her testimony, the Fifth Circuit panel focused on the question whether the testimony was helpful to the trier of fact. Defendants argued that the average juror would not require expert testimony to understand the grief experienced by a family member on the death of a loved one, and raised the danger that expert evidence on that subject would serve as a surrogate for testimony from the family members themselves. While acknowledging these points, the Fifth Circuit concluded that the trial court did not abuse its discretion in admitting the testimony after weighing its probative value against its potential prejudicial effect.
The panel went on to hold that even if the testimony should have been excluded, any error was harmless, because other evidence amply supported the jury's damage award. "It is highly unlikely," wrote the panel, "that Dr. Silverman's testimony aided in the jury's resolution of the case or in its awards to [plaintiffs]." Whatever one may think of the appellate outcome, this is an odd sentence to find in a decision upholding the admissibility of expert testimony.
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