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22 U.C. Davis L. Rev. 93 (1988-1989)
The Use and Misuse of Expert Testimony in Summary Judgment

handle is hein.journals/davlr22 and id is 103 raw text is: The Use and Misuse of Expert Testimony in Summary Judgment Edward Brunet* INTRODUCTION At first glance, the increasing use of expert testimony in the sum- mary judgment process' seems illogical and impossible. After all, sum- mary judgments are only proper when no factual disputes exist,2 and the stock-in-trade of the expert witness is venturing opinions on issues of fact. The very presence of an expert implies that issues of fact exist. Instinctively, bilateral expert participation in summary judgment affi- davits should doom a motion for summary judgment by creating con- flicting evidence on issues of material fact. Such participation should make the use of the expert affidavit an expensive rarity. Moreover, the 'opinion nature of standard expert testimony seems strangely out of place either supporting or opposing a motion for summary judgment. Summary judgment focuses on the existence or nonexistence of particu- lar facts. Accordingly, a well-crafted affidavit supporting or opposing * Professor of Law, Lewis and Clark Law School. B.A., Northwestern Univ.; J.D., Univ. of Illinois; LL.M., Univ. of Virginia. I have profited from the helpful comments of Professors John Kennedy and Ron Lansing and the research assistance of Ms. Pamela J. Stendahl. See, e.g., Moeller v. Ionetics, Inc., 794 F.2d 653 (Fed. Cir. 1986) (stating that trial court abused discretion by disallowing expert affidavit); Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1986) (finding that trial court erred by excluding opinion affidavit); Bieghler v. Kleppe, 633 F.2d 531 (9th Cir. 1980) (denying summary judg- ment based on expert affidavit); Kendall v. State, 692 P.2d 953 (Alaska 1984) (af- firming summary judgment for defendants when plaintiff failed to present expert evi- dence of negligence claims to rebut defendants' motion supported by expert evidence); Montana Deaconess Hosp. v. Gratton, 169 Mont. 185, 545 P.2d 670 (1976) (imposing duty on plaintiff to present expert evidence of negligence to defeat defendant's motion for summary judgment); Tiedemann v. Radiation Therapy Consultants, 299 Or. 239, 701 P.2d 440 (1985) (finding summary judgment for defendant proper when plaintiff fails to file expert response following defendant's motion for summary judgment sup- ported by expert affidavit). 2 See FED. R. Civ. P. 56(c) (allowing summary judgment only when no genuine issue as to any material fact exists).