68 Temple L. Rev. 699 (1995)
Expert Testimony in Pennsylvania

handle is hein.journals/temple68 and id is 711 raw text is: EXPERT TESTIMONY IN PENNSYLVANIA

Mark . Bernstein*
An expert witness is like a flea collar, said Flash Magruder.
'When your case is a dog, you need something that will chase the
fleas away, something that will keep your case from scratching and
biting itself in front of the jury.'
Recent legislative efforts to enact a Uniform Code of Evidence have cre-
ated heightened interest, awareness, and controversy regarding the Penn-
sylvania law. Pennsylvania's law concerning expert testimony differs
dramatically from the approach used by the Federal Rules of Evidence.
These differences can pose pitfalls to the new practitioner as well as others
primarily familiar with the federal approach usually taught in law school.
In my opinion, the Pennsylvania rules better succeed in providing a jury
with the information necessary to decide cases justly and appropriately. The
Pennsylvania rules more effectively avoid a battle of experts by requiring
the moving party to clearly offer and explicate the factual basis of opinion
testimony. If properly understood and applied, the Pennsylvania rules, in-
cluding the use of the hypothetical question, are not archaic forms but rather
are essential tools assisting the proper fact-finding role of the jury. Despite
some decisions liberalizing the bases for expert opinion evidence, Penn-
sylvania law rejects the federal approach to expert testimony.
This article will explore Pennsylvania law on expert testimony and com-
pare it to the Federal Rules of Evidence. The article will explain Penn-
sylvania law for the practitioner and describe Pennsylvania's more utilitarian
approach to justice in fact-finding. I will explain the benefits of current law
and advocate that no further extensions toward the federal approach should
be approved, whether the law of evidence remains under judicial common
law control or becomes codified legislatively.
I. EXPERT TESTIMONY: TmE PERSONAL OPINION OF A QUALIFIED
INDIVIDUAL IN A FIELD OUTSIDE NORMAL UNDERSTANDING
Expert testimony is the personal, professional opinion of a properly
qualified individual, applying specialized knowledge to the evidence
presented at trial on a subject beyond the common understanding of a jury.
Virtually every civil case on which I preside includes expert testimony on
either factual issues of liability, or medical issues of diagnosis or causation.
Thus, in every case, I explain expert testimony to the jury as follows:
* Judge of the Court of Common Pleas, Philadelphia County; B.A., St. John's College;
J.D., University of Pennsylvania Law School.
1. JAMES W. McELANY, McELHANEY'S TRIAL NOTEBOOK 469 (3d ed. 1994).

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