X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In motor vehicle negligence actions, plaintiffs frequently claim injuries purportedly demonstrated by X-ray or MRI films. CPLR � 4532(a) provides a convenient way of putting films in evidence, thereby avoiding problems with foundational testimony at trial. Alternatively, written reports interpreting these films may be admissible as business or hospital records under CPLR � 4518(a) or (c). But what happens when the films are not in evidence, and the reports are not admissible as business or hospital records? Instead, plaintiff offers an expert opinion based on hearsay written reports of another physician who is not testifying. To what extent are such expert opinions admissible? This article discusses the case law on this issue, including an important development, Wagman v. Bradshaw. [FOOTNOTE 1] PROFESSIONAL RELIABILITY EXCEPTION At one time, expert opinions could only rest on facts that were in evidence or personally known and testified to by the expert. [FOOTNOTE 2] Since the adverse party had no opportunity to cross-examine the hearsay declarant, the opinion deprived the jury of its role in determining the facts. It is now well established that opinion evidence also may rest on out-of-court material that is either derived from a trial witness subject to full cross-examination or “of a kind accepted in the profession as reliable in forming a professional opinion.” [FOOTNOTE 3] This rule first appeared in the landmark case of People v. Sugden. [FOOTNOTE 4] In Sugden, the Court of Appeals held that a psychiatrist may base his opinion, in part, on a prior out-of-court written statement of a trial witness who testified subject to full cross-examination. Having the statement and full opportunity to cross-examine the writer obviated all of “the evils of hearsay.” In dictum, the court provided the second half of the modern rule, known as the “professional reliability” exception. Left unexplained was whether experts could base their opinions only in part on reliable hearsay, as with prior statements of trial witnesses. In Borden v. Brady, [FOOTNOTE 5] the Appellate Division answered this query. The hearsay report of plaintiff’s neurologist “formed the principal basis” for the testifying expert’s opinion, rendering it inadmissible. Logically speaking, allowing substantial reliance would be equivalent to admitting the hearsay report itself. Justice Paul J. Yesawich Jr., in a concurring opinion, explained that the underlying rationale in allowing expert reliance on hearsay is that reports of treating physicians “enjoy a singular trustworthiness.” (The Legislature does not seem to share this enthusiastic view, since there is no CPLR hearsay exception for all such medical reports.) Since the report was not prepared for treatment, there was no external circumstance guaranteeing its reliability. Finally, Justice Yesawich wrote that it appeared the defendant was not aware of the report. This foreclosed meaningful cross-examination and kept the defendant from retaining his own expert. In Hambsch v. NYCTA, [FOOTNOTE 6] the Court of Appeals addressed the professional reliability exception in a motor vehicle negligence case, wherein plaintiff claimed vertebral misalignment. Based entirely on a hearsay conversation with a radiologist two days before the trial, the physician testified that the condition was caused by a fracture. The non-testifying radiologist held that opinion “because of an unknown study that he did not participate in.” The defendant objected to the testifying physician’s opinion. Since the plaintiff presented no evidence establishing the reliability of the hearsay material, “there was no basis for finding that the [misalignment] was the result of a fracture,” and the expert’s opinion was inadmissible. Nothing in Hambsch established the general medical acceptance of the hearsay. But the authority that Hambsch cited, including the Borden concurrence and the criminal cases of People v. Miller [FOOTNOTE 7] and People v. Branton, [FOOTNOTE 8] suggests the court would also require evidence that the particular hearsay in the case was reliable. In the above criminal cases, to prove defendants possessed illegal drugs, the prosecution’s experts performed laboratory tests, comparing the seized drugs to “known” samples. The general acceptance of the laboratory tests was unquestioned, but the Appellate Division still required proof that the samples themselves were reliable. After Hambsch, the cases in the Appellate Division diverged on the key issues of principal basis, reliability, and harmless error. In Serra v. City of New York, [FOOTNOTE 9]the court decided that admitting the hearsay MRI report into evidence was harmless error. Since the physician had sent the plaintiff for an MRI test to confirm his diagnosis, and because such a report was data of the kind ordinarily accepted by experts in the field, the court held that the physician’s testimony concerning the MRI results was admissible. The court followed suit in several later decisions. [FOOTNOTE 10] Serra is disturbing in two respects. First, it held that the hearsay was not the principal basis for the expert’s opinion. Yet, as Justice Marcy S. Friedman wrote recently, the idea of an independent basis is “often little more than a fiction.” [FOOTNOTE 11] Indeed, the experts in these cases rendered specific opinions only after reviewing the reports. Second, Serra merely looked at whether professionals generally accept the type of test at issue, reducing the reliability doctrine to a rubber stamp. BEST EVIDENCE RULE At this point, it is helpful to examine the best evidence rule. The Court of Appeals in Schozer v. William Penn Life Ins. Co. applied the rule to X-ray films, treating them as writings. [FOOTNOTE 12] In general, the proponent must produce the film to prove its contents. If it is unavailable, he “has the heavy burden of establishing” that the report “is a reliable and accurate portrayal” of the film. The more important the document to resolving the ultimate issue, the greater the evidentiary foundation needed to establish loss, guarding against mistakes in copying, fraud, perjury, and inaccuracies. Dissenting Justice Richard D. Simons wrote that, unlike the terms of a written contract, a physician’s report or testimony regarding an X-ray is not a “copy” but “an expert opinion interpreting the X-ray on the basis of the witness’ experience and training.” An expert’s report, in Justice Simons’s view, cannot supply a factual basis for the expert’s self-serving and unverifiable reading of the X-ray, which only facilitates fraud. He also questioned how a court could ensure the accuracy of the facts when there is nothing before the court enabling an opponent to challenge them by using his own expert. Applying these principles here, the Serra line of case law vitiates the rule’s purpose, since they do not require unavailability. Nor is there any burden of establishing that the report portrayed the films reliably and accurately. In Schwartz v. Gerson, [FOOTNOTE 13] the testifying expert relied upon a hearsay report, which was then admitted into evidence and read to the jury during summation. The Appellate Division ordered a new trial, finding that the report was an opinion on the crucial issues of the severity and causation of the injuries. Moreover, this usage went beyond the limited purpose contemplated by the professional reliability exception. In Sigue v. Chemical Bank, [FOOTNOTE 14] the court held that the expert’s testimony based on an arthrogram [FOOTNOTE 15] report was not admissible. The hearsay report was not addressed to the testifying expert, bringing into question its reliability. It also formed the principal basis for the expert’s opinion on the crucial issues of the existence and severity of the injuries. In Brown v. County of Albany, [FOOTNOTE 16] the plaintiff’s medical expert admittedly had no personal knowledge regarding causation. Instead, the hearsay report of another physician, who did not testify, was “the sole source of [the expert's] opinion” on that issue. The expert’s testimony was properly precluded on that issue because there was no evidence offered to establish the reliability of the report, which “appear[ed] to have consisted of a history taken from plaintiff regarding the event.” ‘WAGMAN V. BRADSHAW’ Recently, in Wagman v. Bradshaw, [FOOTNOTE 17]the Appellate Division issued a comprehensive opinion on these matters. The trial court had permitted a chiropractor to testify about the contents of an inadmissible MRI report under the guise of the professional reliability exception. The films were not in evidence. First, the Appellate Division recognized that, generally, films must be in evidence before an expert may interpret them. Otherwise, the adverse party would be unable to cross-examine the basis for the opinion or offer opposing evidence. Citing Schozer, the Appellate Division explained that the best evidence rule prohibited admitting the MRI report, unless the films are unavailable and the report accurately and reliably portrays them. Since plaintiff did not claim unavailability, the report was inadmissible. Second, the expert may not testify as to the express contents of the inadmissible MRI report because that would violate the hearsay rule. The chiropractor did not limit his opinion to stating that it was based, in part, on the report. Rather, it was impermissibly offered for the truth of the contents of the latter. This was prejudicial error, requiring a new trial. Wagman emphasized that if the written report is inadmissible, logic dictates that testimony as to its contents should also be precluded. Wagman further noted that the legislature created CPLR � 4532(a) for convenience but that it only allowed the films into evidence. Hence, reports would still be patently inadmissible hearsay. Wagman cautioned that “[v]enerable rules of evidence should not be casually discarded to accommodate convenience and speed in the gathering and presentation of facts or evidence.” Third, Wagman held that there must be evidence establishing reliability. Instead of mere evidence of general acceptance by professionals, however, Wagman contemplates providing detailed information regarding the circumstances under which the particular report was prepared. Factors cited by the court were whether the testifying expert ever saw the films, the radiologist’s qualifications, the circumstances under which the report was prepared, and whether the report merely stated a conclusion or offered a detailed interpretation. This last factor seems to recognize the inherent problems with many of these reports in that they are not detailed and offer little more than conclusory statements. Since plaintiff offered no such proof, the chiropractor impermissibly relied on the report. CONCLUSION Admitting expert opinions that are principally based on hearsay prevents effective cross-examination, thwarts the adverse party’s ability to offer contrary expert opinions, and usurps the jury’s role. In reaffirming these principles and in requiring particularized evidence of reliability, Wagman eliminates laxity and requires fairness. Evidentiary rules upon which the entire judicial system rests cannot be sacrificed for speed and convenience. Michael D. Jaffe is a partner at Jaffe & Nohavicka. Richard W. Shin is an associate at the firm.

::::FOOTNOTES::::

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.