In a dramatic departure from the traditional rule that expert opinion testimony must be based on facts either personally known to the expert or admitted in evidence, the Court of Appeals in People v. Sugden, 35 N.Y.2d 453, 460 (1974), declared that an expert “may rely on material, albeit of out-of-court origin, if it is of a kind accepted in the profession as reliable in forming a professional opinion.” By allowing an expert to use reliable material not admitted into evidence, irrespective of whether it constitutes inadmissible hearsay, as a basis for the expert’s opinion, the court was recognizing that an expert should be able to work in the courtroom in much the same way he or she do in their professional lives. With this recognition, the court was clearly seeking to maximize the information experts may rely upon in formulating their opinions, thereby better assisting juries in their fact-finding.
The rule recognized in Sugden is generally referred to as the “professional reliability” rule for expert opinion. Properly viewed, it creates an exception to the traditional common law rule governing the proper factual basis for an expert’s opinion. Despite some references in the Court of Appeals’ decisions suggesting Sugden creates an exception to the hearsay rule, it does not. See John M. Curran, “The ‘Professional Reliability’ Basis For Expert Opinion,” 85 N.Y. ST.B.J. 22 (2013).
Sugden has given rise to a number of questions over the years since it was decided. Among those questions are the following: Does the professional reliability rule apply to all experts and not merely to physicians? What foundation proof must be adduced to invoke the rule? May the out-of-court material be the sole or principal basis for the expert’s opinion? When, if ever, are the contents of the relied upon out-of-court material admissible in evidence? To what extent, if at all, does the Confrontation Clause of the Constitution limit the rule in criminal cases? Other than recognizing the professional reliability rule extends to all experts—See, e.g., Straus v. Strauss, 136 A.D.3d 419 (1st Dep’t 2016) (forensic mental health expert); Diagne v. J.T.S. Trucking, 134 A.D.3d 558 (1st Dep’t 2015) (accident reconstruction expert); A Tech Concrete Co. v. Tilcon N.Y., 60 A.D.3d 603 (2d Dep’t 2009) (geological engineering expert); Tassone v. Mid-Valley Oil Co., 5 A.D.3d 931 (3d Dep’t 2004) (economist)—and that the Confrontation Clause applies when prosecutors elicit expert opinion based upon out-of-court material (People v. Goldstein, 6 N.Y.3d 119 (2005)), there remains much uncertainty as to the answers to the other questions. This uncertainty is the result of post-Sugden decisions from the Court of Appeals which have either given mixed signals as how these questions are to be resolved or avoided answering them when given the opportunity to do so.
This column will address the foundation and sole/principal basis questions; the next column will address the contents question. In doing so, the column will discuss the Fourth Department’s recent decision in Tornatore v. Cohen, 162 A.D.3d 1503 (4th Dep’t 2018), as it thoughtfully answers these two questions, providing guidance to the bench and bar in applying the rule, and does so in a manner which shows all four Appellate Division departments are in agreement as to their resolution. Until such time as the Court of Appeals addresses them, Tornatore’s answers to the two posed questions should be followed.
Plaintiff Tornatore commenced a medical malpractice action seeking to recover damages for injuries he sustained as a result of defendant chiropractor’s negligent chiropractic treatment. As pertinent here, plaintiff at trial called a life care planning expert who testified to several components of plaintiff’s future medical needs. As to how this testimony was derived, the expert explained the professional methodology used by life care planners in developing a person’s life care plan. The methodology included reviewing medical records, understanding the recommendations made by the person’s treatment providers, interviewing the person and conducting research and analysis of costs. In preparing a life care plan for plaintiff, she reviewed legal documents and various medical records of plaintiff’s treatment providers; interviewed plaintiff about his background, work history, injuries, treatments, the recommendations of his treatment providers and his level of independence in light of his injuries; and she discussed and reviewed the elements of the life care plan with plaintiff’s treating physician. All of this factual information the expert obtained and reviewed, was supported by the evidence admitted at trial, except for that information obtained from the treating physician who did not testify at trial. Tornatore, 162 AD3d at 1505.
The defendant moved to strike the expert’s final opinion as to plaintiff’s life care plan on the ground that it was principally based upon the inadmissible hearsay statements of plaintiff’s treating physician, who did not testify. The trial judge, Anthony J. Paris, denied the motion, concluding that plaintiff’s foundation proof was sufficient to invoke the professional reliability rule and that the life care planner’s opinion was not solely based upon the non-testifying physician’s out-of-court statements. The Fourth Department affirmed, finding the challenged opinion was properly admitted pursuant to Sugden’s professional reliability rule. Id. at 1505-1506.
‘Of a Kind’ Foundation Element
The court initially addressed the basic foundation element of the professional reliability rule that the out-of-court material relied upon was of a kind accepted in the profession as reliable in forming a professional opinion. This element essentially requires proof that the out-of-court material is of the type relied upon by those in the expert’s profession. Mroz v. 3M [Appeal No. 2], 151 A.D.3d 1606, 1607 (4th Dep’t 2017). It may be shown through the testimony of the expert who seeks to rely on the out-of-court material or by another qualified expert. Goldstein, 6 N.Y.3d at 125.
The Fourth Department found this element satisfied by the life care planner’s testimony that the information upon which she relied was of the type commonly relied on in her profession. Id. at 1505. The court additionally noted that the outside sources utilized, such as a medical costs database, were professionally accepted. Id. at 1506. In view of the precedent governing the establishment of this element, the court’s conclusion that the “of a kind” foundation element was in fact established is certainly sound.
Reliability Foundation Element
The court next addressed a second foundation element, not discussed in Sugden but recognized by the Court of Appeals in Hambsch v. New York City Transit Auth., 63 N.Y.2d 723, 726 (1984). In Hambsch, the court held that the foundation for invoking the professional reliability rule also requires a factual showing “establishing the reliability of the out-of-court material.” Tornatore, 162 A.D.3d at 1505. Notably, the source of this reliability foundation element was Justice Paul Yesawich’s concurring opinion in Borden v. Brady, 92 A.D.3d 983, 984 (3d Dep’t 1983), cited by the Fourth Department in Tornatore, 162 A.D.3d at 1505.
In Borden, Justice Yesawich would have found error in the admission of the plaintiff’s treating physician’s opinion as to her final medical prognosis for the plaintiff, as the physician had relied upon the report of a neurologist who treated the plaintiff but did not testify. In this regard, Justice Yesawich found “no external circumstances guaranteeing [the report’s] reliability existed.” Borden, 92 A.D.3d at 984. In support of this conclusion, he noted the neurologist’s examination had occurred more than a year after the underlying personal injury action had been commenced; and the report was not obtained to enable the treating physician to render treatment, but rather to reinforce his diagnosis which he would testify to at the trial of plaintiff’s action.
How is the element established? As expressed by Justice Yesawich, proof of reliability must come from some “external circumstance guaranteeing its reliability.” Michael Martin, “Professionally Reliable Material as a Basis for an Expert’s Opinion,” NYLJ, Sept. 16, 2000, p. 3, col. 3. Such proof can come from the expert who is relying on the out-of-court material, e.g., expert’s investigation, see People v. Howard, 134 A.D.3d 1153 (3d Dep’t 2015); reliance by the expert on the out-of-court material in performing a task, e.g., treating physician relying upon requested report in treating patient, see O’Brien v. Mbuga, 49 A.D.3d 937, 938-939 (3d Dep’t 2008); or by independent proof of the out-of-court material’s reliability, e.g., calling witnesses introducing documentary evidence, see Matter of State of New York v. Floyd Y., 22 N.Y.3d 95, 109-110 (2013). Reliability, in short, will not be presumed from the document itself; it must be proven.
The Tornatore court, addressing only the non-testifying treating physician’s hearsay statement to the expert as the other bases for her opinion were from the evidence admitted at trial or not challenged, found reliability present in that material. The basis for this conclusion was that the statements addressed matters that were in the admitted medical records and were consistent with those records. Tornatore, 162 A.D.3d at 1505. Reliance upon this evidence is appropriate as the expert testified that she examined those records, and if she discerned discrepancies between the records and what the treating physician said to her, she would be in a position to reconcile the discrepancies with the physician. Moreover, any discrepancies could be explored upon cross-examination of the expert.
‘Not Sole/Principal Basis’ Limitation
In the absence of controlling Court of Appeals precedent, the Appellate Division departments have added a limitation on the professional reliability rule, which limitation requires a showing that the relied upon out-of-court material does not constitute the sole or principal basis of the expert’s opinion, even if the professional reliability rule’s foundation elements are established. See Michael Martin, et al., New York Evidence Handbook (2d ed) §7.3.3 at pp. 623-624 (collecting cases). Rather, the out-of-court material must merely be “a link in the chain of data upon which he relied.” Brown v. County of Albany, 271 A.D.2d 819, 821 (3d Dep’t 2000). Of note, Justice Yesawich rejected this limitation in Borden, stating that “[r]eliability is the touchstone; once reliability is established, the medical expert may testify about [out-of-court material].” Borden, 92 A.D.3d 984. This limitation, however, can be justified as otherwise the testifying expert would simply be saying “I agree” with an expert who is not called as a witness, and thus the person a party needs to cross-examine could not be cross-examined.
The Tornatore court found that the non-testifying treating physician’s comments were nothing more than a “link” in view of the multitude of sources of the expert’s opinion which were in evidence. Tornatore, 162 A.D.3d 1505-1506. This conclusion is not debatable in view of the numerous sources the expert relied upon, the expert’s testimony that she relied upon all of the sources mentioned in formulating her opinion, and the absence of any proof that what the non-testifying expert said to the expert was nonetheless the linchpin for her opinion.
Hopefully, the Court of Appeals will have the opportunity to revisit Sugden in the near future and endorse the Fourth Department’s approach to and treatment of the professional reliability rule. Based, as it is, upon a careful examination of Sugden and its progeny, and its synthesizing of the decisions of the other Appellate Division department addressing the rule, Tornatore is deserving of a careful reading when presenting the testimony of an expert.
Michael J. Hutter is a Professor of Law at Albany Law School where he teaches, among other courses, Evidence and New York Practice, and is Special Counsel to Powers & Santola. He is currently serving as the Reporter to the OCA Judicial Committee preparing the Guide to NY Evidence.