Traditionally, an expert witness’ opinion was required to be based on facts either personally known to the witness or found in the record. In People v. Sugden, 35 N.Y.2d 453 (1974), the Court of Appeals expanded the permissible bases to include information obtained from persons available for cross-examination, and in Hambsch v. New York City Transit Auth., 63 N.Y.2d 723 (1984), the Court built on Sugden and detailed requirements for basing expert opinions on unadmitted material of a kind accepted as reliable in the expert’s profession. This last basis has caused the most difficulty, so this month’s column focuses on two cases illustrating some of the important considerations.
In a 2008 automobile personal injury case from the Third Department, O’Brien v. Mbugua, 49 A.D.3d 937 (3d Dept. 2008), the plaintiff offered expert testimony from a neurologist regarding her injuries. During his testimony the witness was permitted to communicate the results of a report from a radiologist who did an MRI he (the neurologist) had ordered and to explain the significance of those results in his diagnosis. The radiologist did not testify, the neurologist had not examined the MRI films, and the MRI films were not entered into evidence. On appeal of a judgment for the plaintiff, the court found no error in admitting the expert’s testimony.
