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Hiring the Right Expert in your Breath-Test Case

By: April Campbell

If you’ve ever considered hiring an expert in a breath-test case, you probably should read the newest decision on the subject.  City of Columbus v. Swanson, 2020-Ohio-357 (Feb. 4, 2020). Basically, the trial court excluded the breath-test expert from testifying during Swanson’s trial because he was too confusing, and the Tenth District saw no reason to disagree. Ouch. 

But in looking at why the trial court excluded the expert; it should be noted that the expert’s opinion did smell like bad science. Deviating from the expert’s own standard calculation, he chose to utilize an unspecified pharmacokinetic calculation to reach an opinion. He then found no need to disclose in his report what data he used to reach his result. That coupled with the fact that the expert could only say either (1) that Swanson’s reflux was to blame for her bad test result, or that (2) Swanson plain old lied about how much she drank, put the expert in the not-so-wonderful witness category anyway.  

Even so, excluding a witness from testifying is a big deal. Someone’s constitutional right to a complete defense is at stake, after all. And frankly, it is unsettling to have new case law out there on excluding defense experts for other trial courts to cling to. 

Still, this decision does contain helpful fodder for us expert-hiring advocates. For one, quality matters. Hire an expert whose work is trusted in the community. For another, make sure the expert explains what evidence was used to reach the opinion in the report, even if that means asking the expert to supplement the report. 

Finally, be prepared to argue so that your expert is actually allowed to testify at trial. Show how broad Evid.R. 702 is by pointing the trial court to its commentary. Provide case law on the right to a complete defense. And explain why excluding your expert denies your client this right. 

If you need advice in finding the right expert for your client, become active with the OACDL listserve. Lawyers talk, even about experts. Join the discussion.  

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