Oregon Law Does Not Permit Experts to Testify in the Form of Legal Conclusions in Product Liability or Negligence Cases

Under Oregon law, witnesses are not allowed to testify as to legal conclusions.  See, e.g., Olson v. Coats, 78 Or App 368, 370 (1986) (excluding testimony by witness that certain road signs complied with statutory requirements).  “Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.” Burkhart v. Washington Metro. Area Transit Auth., 112 F3d 1207 (D.C. Cir. 1997).  Examples of inappropriate testimony in the form of legal conclusions include, but are not limited, to:

  • Defendants were clearly reckless, acted in a reckless manner, or acted in a grossly reckless manner;
  • Plaintiff was negligent; and
  • The helicopter/engine had a known and recognized defect.

Neither plaintiff nor defendant should be permitted to elicit such legal conclusions at trial.  An increasing number of products liability cases have excluded similar expert testimony.  A district court was held to have correctly excluded expert testimony that “the lack of adequate warnings and instructions constituted defects which made the products unreasonably dangerous.”  Strong v. E.I. DuPont de Nemours Co., 667 F2d 682, 685-86 (8th Cir. 1981).  Similarly, in Harris v. Pacific Floor Machine Mfg. Co., 856 F2d 64, 67 (8th Cir. 1988), a district court was held to have properly refused to permit the plaintiff’s expert to opine as to the adequacy of the particular warning on the product.

Likewise, expert testimony that a party was “willful” was excluded in United States v. Baskes, 649 F2d 471, 478 (7th Cir. 1980).  On similar grounds, a federal district court excluded expert testimony that the plaintiff was “negligent.”  The court’s ruling also encompassed “any testimony . . . that contains a variation of the term ‘negligent,’” or any opinions that certain conduct was the “direct, proximate and efficient cause” of an accident.  Hermitage Industries v. Schwerman Trucking Co., 814 F Supp 484, 487-88 (D. S.C. 1993).