Indiana Appellate Comments

By:  Curtis T. Jones                                                                                          

The Indiana Court of Appeals' published opinion in Franciose v. Jones provides, among other topics, an excellent discussion of Indiana law regarding expert witnesses, and the importance of a timely objection at trial concerning expert witnesses.

In Francoise, the Indiana Court of Appeals discusses the merits of presenting an expert witness in a plaintiff's case-in-chief for preemptive rebuttal purposes.  The Court also discusses the factors a court should consider when deciding to admit an expert witness's scientific testimony.  These factors were first discussed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and then applied to Indiana Evidence Rule 702(b) in Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995), reh'g denied.

The defendant's appeal to reverse the court's decision to allow evidence from the plaintiff's expert witnesses at trial, however, was lost in the defendant's failure to timely object to these expert witnesses.  The Court provides the following practitioner's point:
 

"In all cases . . . it is wise for a party to inform the trial court before trial that it wishes to raise an objection to the reliability of the expert witness's scientific methodology.  Where a party waits until trial to raise a challenge requiring a Steward analysis, that party places a significant burden upon the trial court . . . [and] runs the risk of lodging an ambiguous objection in the heat of trial."
 

Thus, this case serves as a good reminder for litigants at trial to "alert the trial court before trial that it objects to an expert's testimony under Indiana Evidence Rule 702(b)."