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The full case caption appears at the end of this opinion.Reinhart Institutional Foods (Reinhart) appeals the district court’s admission ofhearsay through the expert testimony of a vocational rehabilitation counselor. Becausewe feel the decision to admit the evidence is supported by Federal Rule of Evidence703, we affirm. I. Facts and Background Tina Brennan sued for personal injury arising from an electric shock she receivedfrom a coffee maker while working as a waitress. She brought suit against Reinhart,as Reinhart had supplied the coffee machine to her employer and a Reinhart employeeinstalled it. She allegedly developed fibromyalgia from the resulting shock. During thecourse of the trial, the district court [FOOTNOTE 1]allowed Brennan’s vocational rehabilitationcounselor, Rick Ostrander, to mention hearsay statements by Brennan’s physicians inexpressing his opinion as to her probable loss of employability and earning capacitydue to her injuries. During the course of Ostrander’s testimony, he stated Dr. P. James Eckhoff, Jr.,a rheumatologist, had earlier reported Brennan “as having a permanent partialimpairment of eleven percent of the whole person.” (Tr. at 323.) Ostrander also notedthat Brennan had been treated by Dr. Myung J. Cho, a specialist in physical medicineand rehabilitation, and she was independently evaluated by Dr. Chris Tountas.Reinhart objected to Ostrander’s statements as referring to hearsay that was not inevidence and not subject to cross-examination. The district court overruled theobjection on the grounds that an expert can rely on matters not in evidence in formingan opinion. Ostrander then explained that Dr. Eckhoff’s and Dr. Cho’s reports thatBrennan suffered a permanent partial impairment of eleven percent were “significantto [him] as a vocational rehabilitation specialist because [they] indicate[ ] a medicalopinion of a permanent condition; one that is not likely to get substantially better orworse in the future.” (Tr. at 324.) Additionally, Ostrander referred in his opinion toa functional capacities evaluation administered to Brennan by an occupational therapist.Reinhart objected on the same grounds, and, again, the district court overruled theobjection. The jury found for Brennan, and she received a jury verdict of $256,000. II. Discussion The gravamen of this appeal is that the reports indicating a permanent partialimpairment of eleven percent and the results of Brennan’s functional capacitiesassessment were not otherwise mentioned during the trial. Dr. Eckhoff and Dr. PatriciaMalters, a physician of internal medicine who still treated Brennan at the time of trial,did not appear at trial but gave testimony by deposition. Although testimony was givenregarding Brennan’s permanent disability by these experts, it does not appear eithertestified as to the eleven percent evaluation. Ostrander also referred to Dr. Cho’smedical report; however, Dr. Cho did not testify by deposition or otherwise. Thus, itis argued that the district court abused its discretion because it allowed the admissionof hearsay medical opinions presented solely through the testimony of Ostrander, thevocational counselor. The sole issue on appeal involves the proper application of Federal Rule ofEvidence 703. It reads: The facts or data in the particular case upon which an expert basesan opinion or inference may be those perceived by or made known to theexpert at or before the hearing. If of a type reasonably relied upon byexperts in the particular field in forming opinions or inferences upon thesubject, the facts or data need not be admissible in evidence. We have visited this problem on prior occasions. We have explained that “an expertmay rely on otherwise inadmissible hearsay evidence in forming his opinion if the factsand data upon which he relies are of a type reasonably relied upon by experts in hisfield.” Arkwright Mutual Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir.1997) (citing Fed. R. Evid. 703; South Cent. Petroleum, Inc. v. Long Bros. Oil Co., 974F.2d 1015, 1019 (8th Cir. 1992)). We have also noted that “[o]nce expert testimonyhas been admitted, the rules of evidence then place ‘the full burden of exploration offacts and assumptions underlying the testimony of an expert witness squarely on theshoulders of opposing counsel’s cross-examination.’” Ratliff v. Schiber Truck Co.,150 F.3d 949, 955 (8th Cir. 1998) (quoting Newell Puerto Rico, Ltd. v. RubbermaidInc., 20 F.3d 15, 20 (1st Cir. 1994)). It is, therefore, the “burden of opposing counselto explore and expose any weaknesses in the underpinnings of the expert’s opinion.”Ratliff at 955 (citing Newell Puerto Rico, 20 F.3d at 21). Reinhart relies on authoritystating it to be error to allow into evidence hearsay statements and medical reports assubstantive evidence to prove the fact asserted. See, e.g., Boone v. Moore, 980 F.2d539 (8th Cir. 1992). In facing this apparent contradiction between Fed. R. Evid. 703 and theinadmissibility of hearsay reports, this court has reconciled the issue by allowing anexpert to testify about facts and data outside of the record for the limited purpose ofexposing the factual basis of the expert’s opinion. Effective cross-examination can thenhighlight the weaknesses in the expert’s opinion. Obviously, it is helpful when trialcourts instruct juries as to the limited applicability of the hearsay evidence by informingthe jury that the hearsay is inadmissible as substantive evidence to prove the truth ofthe fact asserted. See South Cent. Petroleum, 974 F.2d at 1019. In the present case,upon overruling Reinhart’s hearsay objection, the district court explained it wasoverruled “because an expert can rely upon matters that are not in evidence in formingan opinion.” (Tr. at 323.) This statement is certainly sufficient under the standard setforth in South Central Petroleum to make the jury aware of the rule. Moreover, ourperusal of the record shows that counsel conducted a thorough cross-examination ofOstrander concerning the opinions of the various doctors. [FOOTNOTE 2] The reports at issue from Dr. Eckhoff were available to Reinhart during Ostrander’stestimony and certainly could have been utilized to rebut or impeach if necessary.Furthermore, Ostrander testified that the eleven percent evaluation of the experts wasmeaningless to him and did not enter into his evaluation of vocational loss. Wemention these factors as evidence that defense counsel had available in the examinationof Ostrander. On appeal, defense counsel points out that Brennan argued from the hearsayevaluations during closing argument. We take note there was no objection to thisargument and our reading of the record discloses that the challenged argument was inconjunction with Ostrander’s opinion relating to Brennan’s earning capacity. III. Conclusion A trial judge is in a unique position to judge the alleged prejudicial effect of thiskind of testimony. Judge Piersol wrote a thorough opinion in denying Reinhart’smotion for a new trial, reconciling Fed. R. Evid. 703 and the rule against hearsay.Based on this court’s prior cases and the record we have reviewed, we cannot say thathe abused his discretion in admitting Ostrander’s testimony.Judgment affirmed. A true copy. :::FOOTNOTES::: FN1 The Honorable Lawrence L. Piersol, Chief Judge, United States District Courtfor the District of South Dakota, presiding. FN2For example, during cross-examination defense counsel questioned Ostranderabout Dr. Eckhoff’s impairment rating: Q. Now, you haven’t made any differentiation in your analysis betweenher carpal tunnel syndrome and her fibromyalgia condition, have you?A. That’s correct. The.Q. But the medical testimony before this jury from all of the physicianswho testified on it, I guess so far we’ve had Doctor Malters, DoctorEckhoff, both of them have said that the carpal tunnel syndrome is notrelated to the electric shock incident, have they not? A. That’s my understanding and because of that I took a look at its impacton my evaluation and it was negligible impact. They’ve identified a mildcarpal tunnel. The functional assessment only restricts her from high-speedassembly. Out of the 48 occupational titles that I looked at onlytwo would have been potentially excluded by the carpal tunnel alone, soit has a negligible impact. That’s why I didn’t differentiate that. Q. Well, there isn’t any testimony from Doctor Malters of any permanentimpairment, is there? A. No. Q. And there isn’t any testimony from Doctor Eckhoff of any permanentimpairment either, is there? A. Well, it’s in his report. Q. There hasn’t been any testimony. You read the deposition? A. Right. It wasn’t in his deposition; that’s correct. Q. All right. The report or not the report but rather the testimony ofDoctor Tountas certainly isn’t finding any permanent disability or anypermaanent [sic] impairment or anatomical impairment, is there? A. That’s correct. Q. In fact, his opinions are just the opposite; that he can’t find an injurythat he identifies with the electrical incident at all. A. That’s correct. Q. Okay. And none of the physicians are finding any burn injury or anytissue damage or anything of that sort? A. That’s true. (Tr. at 351-52.) Dr. Eckhoff’s deposition, used at trial, was somewhat more equivocal as toBrennan’s permanent injury. He did testify however: Q. Is the condition of fibromyalgia curable? A. I don’t ever speak to patients of cure. I speak to them of management.Cure implies to me that you perform whatever treatment is recommended,that the condition goes away and does not return.Fibromyalgia tends to fluctuate in severity of symptoms over time.With good management, patients tend to function well. They still havepain; they have less pain. They have more good days and less bad days.Certain variety of stimuli will expect – will be expected to aggravate theirsymptoms. Q. So would it be accurate to say that a person with fibromyalgia has apermanent condition? A. I think that oversimplifies the state. They have a condition whichwould be expected to fluctuate in symptoms over time. It may not gocompletely away. They may have it, as you say, permanently.However, this will – one must remember that this will fluctuatefrom higher to lower levels of severity, or perhaps be asymptomatic atdifferent times. (Dep. at 20-21.)
Brennan v. Reinhart Institutional Foods United States Court of Appeals for the Eighth Circuit No. 99-1944 Tina Brennan, Plaintiff-Appellee, v. Reinhart Institutional Foods; Defendant-Appellant, Bunn-O-Matic, Inc., Defendant. Appeal From: United States District Court for the District of South Dakota Submitted: February 16, 2000 Filed: April 26, 2000 Before: McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.
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