See footnote 1 (4/95)
You have heard testimony from a witness(es) who was (were) called as experts. Generally, witnesses can testify only about the facts and are not permitted to give opinions. However, an exception to this rule exists in the case of an expert witness. An expert witness may give an opinion on a matter in which the witness has (some special knowledge, education, skill, experience or training).See footnote 2 An expert witness may be able to assist you in understanding the evidence in this case or in performing your duties as a fact finder.See footnote 3 But I want to emphasize to you that the determination of the facts in this case rests solely with you as jurors.
In this case, [list experts] were called as experts and testified about certain opinions.
In examining each expert's opinion(s), you may consider the person's reasons for testifying, if any. You may also consider the qualifications of the individual(s) and the believability of the expert, including all the considerations that generally apply when you are deciding whether or not to believe a witness' testimony.See footnote 4
The weight of the expert's opinion depends on the facts on which the expert bases his/her opinion.See footnote 5 You as jurors must also decide whether the facts relied upon by the expert actually exist.
Finally, you are not bound by the testimony of an expert. You may give it whatever weight you deem is appropriate. You may accept or reject all or part of an expert's opinion(s).See footnote 6
A. Optional Charge Concerning Hypothetical Questions See footnote 7
An expert witness was asked to assume that certain facts were true and to give an opinion based on that assumption. This is called a hypothetical question. You must determine if any fact assumed by the witness has not been proved and the effect of that omission, if any, upon the weight of the expert's opinion.
B. Optional Charge In Case Of Conflicting Expert Testimony
It is for you the jury to resolve any conflicts in the testimony of the experts, using the same guidelines in determining credibility that I mentioned earlier. See footnote 8
C. Optional Charge Concerning Fee Paid To Expert
The amount of the expert witness' fee is a matter that you may consider as possibly affecting the believability of an expert. However, there is nothing improper in the expert witness(es) being paid a reasonable fee for (his/her) work and for (his/her) time in attending court.
D. Optional Charge Concerning Statements From Publications
You will recall that statements were read in connection with the direct or cross-examination of (insert name of expert witness). These statements
were contained in a (reference or professional publication, journal, pamphlet or periodical).See footnote 9
However, merely because a publication has been read to you does not mean that you must accept it as binding on any of your decisions. You may give the statement(s) discussed in the publication whatever weight you believe it (they) deserves using your reason, judgment and common sense.
Footnote: 1In the following instances, the Committee has approved specific charges on expert testimony and these charges should be given instead of the general charge on expert testimony:
5.36 Medical Malpractice
5.37C. Legal Malpractice
5.38B. Professional Liability of Architect
10.10C. Condemnation
Footnote: 2 N.J. Rules of Evidence 702. The Committee recommends that a judge select the two most appropriate reasons offered to support the expert testimony in a particular case, because jurors are more likely to recall one or two items rather than an entire list.
Footnote: 3 N.J. Rules of Evidence 702, 703, 704. See also Landrigan v. Celotex Corp., 127 N.J. 404 (1992).
Footnote: 4 State v. Perez, 218 N.J. Super. 478, 486 (App. Div. 1987).
Footnote: 5 Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd, 79 N.J. 547 (1979). See also N.J. Rules of Evidence 703.
Footnote: 6 State v. Spann, 236 N.J. Super. 13, 21 (App Div. 1989).
Footnote: 7N.J. Rules of Evidence 705.
Footnote: 8 Manning v. Public Service Elec. & Gas Co., 58 N.J. Super. 386, 393 (App. Div. 1959).
Footnote: 9 Before any statements contained in a publication can be read into evidence or referred to by an expert, there must be a determination by the judge that the publication is a reliable authority. That foundation may be established in a variety of ways. For example, an expert may establish that an article in a periodical is a reliable authority by testifying that it is one of the sources the expert uses in keeping up to date in the expert's field of expertise. A publication also can be admitted as a reliable authority because the expert or the court has recognized the authoritative stature of the writer or the acceptance of the article itself by the profession. A text may also qualify as reliable authority if it represents the type of material reasonably relied on by experts in the field.
Sources: Federal Rules of Evidence 803 (18); N.J. Rules of Evidence 803(c)(18); Jacober v. St. Peter's Medical Center, 128 N.J. 475 (1992); 11 Moore's Federal Practice, Art VIII (2d ed. 1989); Schnieder v. Revici, 817 F.2d 987 (2d Cir. 1987); Allen v. Safeco Ins. Co. of America, 782 F.2d. 1517, 1519 (11th Cir. 1986); Tart v. McGann, 697 F.2d 75 (2d Cir. 1982); Meschino v. North American Drager, Inc., 841 F.2d 429, 434 (1st Cir. 1988).
Model Civil Jury Charges
