Experts get asked about what other experts – not in court, not offering testimony – did or concluded. Illustrative is the following exchange, one examined and ruled upon by the New Jersey Superior Court this year:
Q: And, Doctor, from your own review of the [CT] scan, you saw the bulge at L4-5. Correct?
A: Yes.
Q: Was that consistent with what the radiologist saw in the report?
A: Yes.
James v. Ruiz, 440 N.J. Super. 45, 55, 111 A.3d 123, 128, 2015 N.J. Super. LEXIS 46, *7-8 (App.Div. 2015). How the Court ruled will be explained later – but the fact that it had to address such testimony makes clear the need for lawyers to understand the limits imposed by evidentiary rules. And that understanding affects not just courtroom testimony but reporting.
Federal Rule of Evidence 703 addresses this, tolerating reliance but limiting repetition. It provides that [a]n expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
Unless in a state such as Pennsylvania which permits repetition of the otherwise inadmissible data as background, see Pa.R.Evid. 703, great care must be taken.
First, the third party information must be of the type experts in the field rely on. That determination is not the expert’s ipsi dixit but an assessment by the Judge. “[T]he district court must make a factual inquiry and finding as to what data experts in the field find reliable.” In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 277 (3d Cir. Pa. 1983). A slightly different articulation, made by an evidence scholar [and federal judge], is that Rule 703 “implicitly requires that the information be viewed as reliable by some independent, objective standard beyond the opinion of the individual witness.” 3 J. WEINSTEIN & M. BERGER, § 703 [03] at 703-25. Thus, the proponent of the expert must be prepared to defend these third party sources as typically relied upon in the field and, possibly, as reliable.
As to Rule 703 and “prejudicial effect,” the concern is grounded in the ban on hearsay. The feared prejudice is that the finder of fact will accept as true what the third parties said.
Although Dr. Lobel may have relied on Pilz’s statement as part of the basis of his expert opinion pursuant to Rule 703 of the Federal Rules of Evidence, the statement itself would still be inadmissible. Otherwise inadmissible evidence cannot be admitted under Rule 703 unless its probative value in helping the finder of fact evaluate the expert opinion substantially outweighs its prejudicial effect. Fed. R. Evid. 703. Rule 703 was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witness on whose statements or opinions the expert purports to base his opinion.
Curtis v. Hartford Life & Accident Ins. Co., 2014 U.S. Dist. LEXIS 116646, 46-47 (N.D. Ill. Aug. 20, 2014)(internal quotations and citation omitted).
What an expert may not do in court must also be considered when writing the report. Whether third party information was relied upon to help generate the opinion, or was used to confirm the testifying expert’s conclusion, the fact of consulting other sources must be acknowledged and the role of the source(s) identified. However, the content of what third party sources stated or wrote should be excised from a report, especially one that will be submitted to the trier of fact. For example, the report might state that
“Rule 703 was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witness on whose statements or opinions the expert purports to base his opinion.”
This conclusion, that there was a breach of duty, is based on my own analysis as reported above. After reaching this conclusion, and before preparing my final draft of the report, I then consulted with three other experts in this field.
What the report may not state is the following:
This conclusion, that there was a breach of duty, is based on my own analysis as reported above. After reaching this conclusion, and before preparing my final draft of the report, I then consulted with three other experts in this field and they all agreed with me.
The expert may chose to prepare an appendix, to be provided to opposing counsel but not to the Court, that contains what each consulting expert stated or wrote. Opposing counsel then must face the conundrum – the more the testifying expert is challenged in testimony, the more she may be permitted to repeat what the consulting experts said or wrote in order to explain why she reached her opinion and/or to show how thorough her research and preparation were.
The same ‘tightrope’ must be walked in testimony. If the statements or writings relied on by the testifying expert meet a hearsay exception then the contents may be admitted, on direct examination, for their truth. A wide range of sources meet this threshold: Statements Made for Diagnosis or Treatment, 803(4); Records of a Regularly Conducted Activity, 803(6); Market Reports and Similar Commercial Publications, 803(17); Statements in Learned Treatises, Periodicals, or Pamphlets, 803(18); and Public Records (803(8).
Where the statements meet no hearsay exception, they should not be disclosed on direct examination unless it is clear to the trier of fact that the purpose for disclosure is not to argue the truth of the statements but to demonstrate what information the testifying expert relied upon. As explained by one court, which permitted disclosure, “[w]hile, normally the Report itself would be inadmissible under Federal Rule of Evidence 703 as hearsay, the Court finds it is admissible to explain the basis of Mr Davison’s opinion, not as substantive evidence. In re Moyer, 421 B.R. 587, 596-597 (Bankr. S.D. Ga. 2007). The task for the proponent is to demonstrate that “[t]he information [the expert] relied upon in formulating his…opinion was highly and directly relevant to the jury’s task of evaluating that opinion.” United States v. Leeson, 453 F.3d 631, 638 (4th Cir. 2006). As well, in a bench trial the latitude may be greater (and the reasonableness of asking the trier of fact to hear this information not for its truth but to explain what the expert did is also greater).
Where this cannot be accomplished, the expert should confine her testimony on direct to statements such as
“I also spoke with several other experts, explaining the facts and seeking their input, before I reached my conclusion”
Or
“After I reached my initial conclusion, I shared the data and my concerns with three other experts. After hearing what each had to say, I prepared my final report.”
Neither of these statements discloses the content of what the others said, and thus the hearsay concerns of Rule 703 are addressed while ensuring that the trier of fact is aware of the thoroughness of the testifying expert.
And using “consistent with?” The New Jersey Court repudiated this. “The conduit prohibition…cannot be circumvented in the guise of questions asking about the “consistency” or “inconsistency” of a testifying expert’s own opinions with the hearsay opinions of an expert who does not testify at trial.
James v. Ruiz, 440 N.J. Super. 45, 71, 111 A.3d 123, 139, 2015 N.J. Super. LEXIS 46, *35 (App.Div. 2015)
Understanding Rule 703 and its interplay with the ban on hearsay is essential, but the exclusion of the substance of what was said in no way should prevent the expert from relying on others and letting the act of consultation be known to the trier of fact. The art comes in showing this reliance to be an act of strength – a confirmatory or thoroughness step – and not one of weakness and doubt.