Bill S7245-2013

Provides that expert opinion that is otherwise admissible in evidence shall not be rendered inadmissible by virtue of the expert's reliance on a report or other data not itself in evidence

Provides that expert opinion that is otherwise admissible in evidence shall not be rendered inadmissible by virtue of the expert's reliance on a report or other data not itself in evidence.

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  • Jun 20, 2014: COMMITTED TO RULES
  • May 19, 2014: ADVANCED TO THIRD READING
  • May 14, 2014: 2ND REPORT CAL.
  • May 13, 2014: 1ST REPORT CAL.669
  • May 7, 2014: REFERRED TO JUDICIARY

Meetings

Calendars

Votes

VOTE: COMMITTEE VOTE: - Judiciary - May 13, 2014
Ayes (21): Bonacic, DeFrancisco, Flanagan, Hannon, Lanza, LaValle, Little, Nozzolio, O'Mara, Savino, Ranzenhofer, Zeldin, Grisanti, Avella, Hassell-Thompson, Breslin, Espaillat, Perkins, Stavisky, Hoylman, Addabbo
Ayes W/R (1): Squadron
Excused (1): Dilan

Memo

BILL NUMBER:S7245

TITLE OF BILL: An act to amend the civil practice law and rules, in relation to the admissibility of certain expert testimony

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.

This measure would add a new section 4549 to the CPLR to effect a very narrow but much needed change in the evidentiary law concerning the admission of expert testimony in civil trials. It would, in effect, legislatively overrule the oft-cited decision in Wagman v. Bradshaw, 292 AD2d 84 (2d Dept 2002).

Current Law

This measure relates to the "professional reliability" exception to the rule against hearsay.{1}

One commonly recurring question is whether and when an expert witness can rely, in reaching his or her opinion, on reports or data that is not itself in evidence. The Court of Appeals long ago stated the rule as being that "opinion evidence must be based on facts in the record or personally known to the witness," but that one exception to the rule is that an expert "may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion (internal quotations omitted)." Hambsch v. New York City Transit Authority, 63 NY2d 723, 725 (1984).

Unfortunately, that rule was greatly limited, especially in the Second Department, by the ruling in Wagman. Wagman dealt with the testimony of a chiropractor who, in reaching an opinion, relied upon a report interpreting the patient's magnetic resonance imaging (MRI) films. Even though doctors and chiropractors routinely rely on such reports in their day-to-day practice of diagnosing and treating their patients, the Second Department ruled that the witness could not rely on the report "without the production and receipt in evidence of the original films thereof or properly authenticated counterparts" (292 AD3d at 87).{2}

The Second Department afterwards extended Wagman even further, holding that the opinion evidence cannot be based upon an MRI report or similar data from another medical provider unless the author of the report was himself or herself subject to cross-examination.{3}

Although the Third Department appears to have definitively rejected the Wagman view,{4} the rule is less than clear in the other two Judicial Departments, where there are decisions that appear to be consistent with Wagman{5} and decisions that appear to be inconsistent with Wagman.{6}

The Advisory Committee's View

Our Advisory Committee believes that the Wagman rule (a) unduly obstructs the receipt of opinion testimony, and (b) is out of touch

with the manner in which professional opinions are generally formed beyond the bounds of the courtroom.

Doctors, for example, routinely rely upon x-ray reports, laboratory tests, MRI reports, and similar data in making life and death decisions. They do so because, in the overwhelming majority of such cases, the author of the report has more expertise than the treating doctor in interpreting the data in issue. It is, we believe, illogical to posit that such reports are sufficiently reliable to make a life or death choice of treatment, but not sufficiently reliable to serve as a predicate for expert opinion.

This illogic is exacerbated by the circumstance that, with the increasingly compartmentalized manner in which medical and diagnostic services are provided, a doctor may rely on many such reports from many different corporate providers in even the simplest cases.

This Measure

This measure would not alter the circumstances in which expert testimony may be offered. Nor would it alter the rules concerning the admissibility of the reports or data on which the testimony may be premised.

However, where the report or data is of the kind routinely relied upon in the profession as a basis for forming an opinion, the opinion shall not be rendered inadmissible on the ground that the predicate data is not in evidence. Nor shall the opinion be rendered inadmissible simply because its author or source is not available to be questioned.

The measure does not apply to expert opinions that are premised in whole or part upon predicate reports or opinions that were themselves prepared for purposes of litigation. We believe that the underlying rationale of this measure - namely, that reports or data that are routinely used to form professional opinions out in the "real world" beyond the courtroom are inherently reliable - simply does not apply to predicate data and reports that were generated for purposes of litigation.

By contrast, because governmental investigative reports are generally not compiled for any litigation purpose, an expert's reliance upon such reports would not render the expert's opinion inadmissible if the "report or data (were) of a kind routinely accepted in the profession as reliable in forming a professional opinion. This measure relates only to reports or data prepared outside of litigation. It does not address and is not intended to limit the admissibility of evidence that is otherwise admissible by statute or common law (see, e.g., Matter of State of New York v. Floyd Y., 22 N.Y.3d (2013)).

This measure, which would have no fiscal impact on the public treasury, would take effect immediately and apply to all actions pending on or after such effective date.

Legislative History: None. New proposal.

{1} There is, we should note, a view to the effect "that the 'professional reliability' exception is not an exception to the

hearsay rule but an exception to the traditional evidentiary foundation required for expert opinions." Hon. John M. Curran, The "Professional Reliability" Basis For Expert Opinion Testimony, 85-Aug N.Y.St. B.J. 22, 22 (2013).

{2} The same court had earlier reached the opposite conclusion. Torregrossa v. Weinstein, 278 AD2d 487, 488 (2d Dept 2000) ("John Torregrossa's treating physician was properly allowed to testify with respect to the MRI report because he had personally examined him, and the MRI report is data which is of the kind ordinarily accepted by experts in the field").

{3} D'Andraia v. Pesce,103 AD3d 770, 771-772 (2d Dept 2013); Elshaarawy v. U-Haul Co. of Mississippi, 72 AD3d 878, 882 (2d Dept 2010); Clevenger v. Mitnick, 38 AD3d 586, 587 (2d Dept 2007).

{4} O'Brien v. Mbugua, 49 AD3d 937, 938-939 (3d Dept 2008) ("where a treating physician orders an MRI-clearly a test routinely relied upon by neurologists in treating and diagnosing patients, like plaintiff, who are experiencing back pain-he or she should be permitted to testify how the results of that test bore on his or her diagnosis even where, as was apparently the case here, the results are contained in a report made by the nontestifying radiologist chosen by the treating physician to interpret and report based on the radiologist's assessment of the actual films").

{5} Kovacev v. Ferreira Bros. Contracting, 9 AD3d 253, 253 (1st Dept 2004) ("(a) treating physician's opinion at trial cannot be based on an out-of-court interpretation of MRI films prepared by another health care professional who is not subject to cross-examination where, as here, the MRI films are not in evidence and there is no proof that the interpretation is reliable"); Vetti v. Aubin Contracting & Renovation, 306 AD2d 874, 874 (4th Dept 2003) (which, however, is arguably distinguishable).

{6} Trombin v. City of New York, 33 AD3d 564,564 (1st Dept 2006) ("NJ he trial court properly permitted defendants' orthopedist to testify as to his interpretation of the MRI films of plaintiff's cervical and lumbar spine, since he had reviewed the actual films and plaintiffs had notified the court of their intention to introduce the films into evidence"); Fleiss v. South Buffalo Railway Company, 291 AD2d 848, 848 (4th Dept 2002) ("defendant's examining physician was properly permitted to testify regarding the reports and findings of nontestifying treating physicians").


Text

STATE OF NEW YORK ________________________________________________________________________ 7245 IN SENATE May 7, 2014 ___________
Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, in relation to the admissibility of certain expert testimony THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The civil practice law and rules is amended by adding a new section 4549 to read as follows: S 4549. ADMISSIBILITY OF CERTAIN EXPERT TESTIMONY. EXPERT OPINION THAT IS OTHERWISE ADMISSIBLE IN EVIDENCE SHALL NOT BE RENDERED INADMISSIBLE BY VIRTUE OF THE EXPERT'S RELIANCE ON A REPORT OR OTHER DATA WHICH IS NOT ITSELF IN EVIDENCE IF THAT REPORT OR DATA IS OF A KIND ROUTINELY ACCEPTED IN THE PROFESSION AS RELIABLE IN FORMING A PROFESSIONAL OPIN- ION. THE RULE SET FORTH IN THIS SECTION SHALL APPLY IRRESPECTIVE OF WHETHER THE AUTHOR OR SOURCE OF THE PREDICATE REPORT OR DATA IS IN COURT OR AVAILABLE FOR CROSS-EXAMINATION. THE RULE SET FORTH IN THIS SECTION SHALL NOT APPLY TO A PREDICATE REPORT OR OPINION PREPARED FOR PURPOSES OF LITIGATION. THIS SECTION DOES NOT RENDER INADMISSIBLE ANY EVIDENCE THAT IS OTHERWISE ADMISSIBLE BY STATUTE OR COMMON LAW. S 2. This act shall take effect immediately and shall apply to all actions pending on or after such effective date.

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