September 28, 2017
By: Dennis Whitaker
“What’s past is prologue . . . .”
Antonio to Sebastian: Act 2 Scene 1 of William Shakespeare’s The Tempest.
Recently, In Hooks v. Southeastern Pennsylvania Trans. Auth., No. 946 C.D. 2016, filed August 31, 2017, Commonwealth Court addressed SEPTA’s appeal from the Philadelphia Court of Common Pleas challenging the admission of an expert opinion based largely on hearsay. Commonwealth Court affirmed, finding that the hearsay testimony was of the type reasonably relied upon by experts in the field at issue in the case when forming opinions. Thus, the expert’s opinion was admissible under Pennsylvania Rule of Evidence (Pa. R.E.) 703, because the expert’s methodology was consistent with that used by other experts in the field, and the expert did not simply restate the conclusions or opinions of others. Importantly for purposes of this post, the court, in addition to citing Rule 703, also cited caselaw predating 1998, the year that the Supreme Court first adopted the Pennsylvania Rules of Evidence and 2013, when the Court rescinded and replaced the Rules. The development through caselaw of the exception to the rule that an expert may not express a conclusion based on facts not in evidence which now is reflected in Rule 703 is instructive and offers insight to those faced with application of the Rule at trial and those faced with defending or attacking its application on appeal.
The long held general rule regarding expert testimony is that an expert may not express an opinion based upon facts not in evidence. See, e.g., Murray v. Siegal, 195 A.2d 190 (Pa. 1963). However, beginning in 1971, Pennsylvania courts began creating an exception through caselaw for the reports of others that were not in evidence but upon which experts customarily relied in the practice of their profession. The Supreme Court first articulated the exception in Commonwealth v. Thomas, 282 A.2d 693 (Pa. 1971), in the context of expert medical witnesses. The Court expanded the exception in Commonwealth v. Daniels, 390 A.2d 172, 176-77 n.7 (Pa. 1978), wherein it rejected the “contention that the rule in Thomas is necessarily limited to observations of other persons in the medical profession.” Rather, the Court held that the trial court was “plainly correct” in allowing a doctor’s opinion to be based partly on lay persons’ observations of behavior and symptoms. From there, the Superior Court ran with the ball and the medical exception expanded incrementally. See, e.g., Cooper v. Burns, 545 A.2d 935, 940, (Pa. Super. 1988), allocatur denied, 563 A.2d 888 (Pa. 1989), and cases cited therein (physician permitted to rely upon psychiatric reports of other physicians who treated plaintiff, but who did not testify at trial); Commonwealth v. Trill, 543 A.2d 2206, 1113 (Pa. Super. 1988) (physician permitted to rely on hospital discharge summary in formulating opinion as to defendant’s sanity); Kearns by Kearns v. DeHass, 546 A.2d 1226 (Pa. Super. 1988), allocatur denied, 559 A.2d 527 (Pa. 1989) (vocational expert relied upon various medical, psychological and psychiatric reports in forming opinion about minor plaintiff’s future employment prospects; court found reports were the type upon which a vocational expert would rely).
The exception soon expanded beyond medical testimony. The Superior Court in Maravich v. Aetna Life and Casualty, 504 A.2d 896 (Pa. Super. 1986), upheld the admission of a fire marshal’s expert testimony that relied upon oral information supplied by subordinate firemen. The court concluded that the marshal’s testimony was admissible even though it was founded in part upon hearsay because the information was of the type upon which a fire investigator would ordinarily rely. In Steinhauer v. Wilson, 485 A.2d 477, 479 (Pa. Super. 1994), the court upheld the trial court’s overruling of a hearsay objection and held that a construction expert could base a cost estimate upon figures provided by various contractors he consulted. Similarly, in Bolus v. United Penn Bank, 525 A.2d 1215 (Pa. Super. 1987), allocatur denied, 541 A.2d 1138 (Pa. 1988), the court found that an expert testifying as to lost profits could rely upon ledgers, tax returns and financial statements even though such records were technically hearsay, relying in part upon Federal Rule of Evidence (F.R.E.) 703.
The Commonwealth Court further expanded the exception announced in Thomas. In Milan v. Dep’t. of Trans., 620 A.2d 721, 727 (Pa. Cmwlth.), allocatur denied, 633 A.2d 154 (Pa. 1993), the court recognized that an expert in accident reconstruction would, in order to form an opinion as to the cause of an accident, by necessity be required to review the police report and the statement/deposition testimony by a witness who recalled how the accident occurred. Although that evidence was in the record via the testimony of others, the court opined that the Commonwealth’s failure to offer the actual police report and deposition testimony into evidence was not fatal because the evidence would of necessity be reviewed by such an expert. Subsequently, the court in Al Hamilton Contracting Co. v. Dep’t of Env. Res., 659 A.2d 31, 36 (Pa. Cmwlth.), allcoatur denied, 670 A.2d 644 (Pa. 1995), opined that the Department’s expert hydrogeologist could rely on information submitted by Hamilton to form his opinion even if that information was not admitted into evidence.
The Superior Court, in two opinions, summarized the rationale for allowing experts to rely on extra record evidence in forming their opinions. In the first, In re: Glosser Bros., 555 A.2d 129 (Pa. Super. 1989), the court concluded that the trial court properly permitted an expert in stock valuation to testify as to the value of certain assets appraised by another person that the expert considered in developing a stock valuation notwithstanding that the appraisal was not in evidence because the appraisal was the type of source upon which an expert valuing stock would rely in forming an opinion. The court noted that the expert did not rely exclusively on the appraisal, but instead compared the values placed by the appraisal with the value received in a sale of such assets. The expert’s use of the appraisal numbers relied not only on the appraisal but on the expert’s assessment of the appraisal’s reliability. The Glosser Bros. court also noted that the “crucial point is that the court (or jury) be fully informed that [facts and figures provided by others] were infact the partial basis for the expert’s opinion,” and “[t]he adverse party has the opportunity to present its own countervailing facts and figures and/or expert testimony to convince the fact finder that the weight to be given the other side’s expert testimony should be little or none.” Id. at 142.
In the second opinion, Primavera v. Celotex Corp., 608 A.2d 515 (Pa. Super. 1992), the court explained as follows:
It is well understood that medical experts are permitted to express opinions which are based, in part, upon reports which are not in evidence, but which are customarily relied upon by experts in the practice of the profession. This exception to the rule against hearsay was adopted in Pennsylvania law in 1971 in Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698 (1971) and has been applied consistently since then . . . .
The logical underpinnings for this rule which allows the qualified expert to rely on material which might otherwise be classified as hearsay are multi-fold. First, the rule is born of practical necessity. An expert’s opinion may be based upon years of professional experience, schooling and knowledge, not all of which can be presented on a first-hand basis in court. Moreover, and more importantly in the context of this case, the expert is assumed to have the mastery to evaluate the trustworthiness of the data upon which he or she relies, both because the expert has demonstrated his expert qualifications and because the expert regularly relies on and uses similar data in the practice of his or her profession. The kind of data contemplated by the rule is often, as it is in this case, the kind of data used daily by experts in making judgments, reaching diagnoses, and taking action.
In noting the necessity and value of permitting experts to rely on extrajudicial reports and sources, it is important to stress that it is actually the testifying expert’s opinion which is being presented and which is subject to scrutiny, cross-examination and credibility determinations. Hence, it is often the case, as it was here, that experts are questioned concerning whether relied-upon sources are “authoritative” or generally accepted, whether the source material is truly the type ordinarily relied on by similar experts, whether independent or further judgment was brought to bear on particular source material and whether the expert is competent enough to judge the reliability of the sources upon which he relied. These are the safeguards which assure that the experts’ opinions are not being offered based on inherently untrustworthy data or data which is not commonly used by other professionals. If an expert has made faulty assumptions or leaps of judgment in relying on certain sources or in forming conclusions based on those sources, these issues are the proper subject of cross-examination.
The relative roles of jury and expert in this context have been described as follows:
In a sense, the expert synthesizes the primary source material–be it hearsay or not–into properly admissible evidence in opinion form. The trier of fact is then capable of judging the credibility of the witness as it would that of anyone else giving expert testimony. This rule respects the functions and abilities of both the expert witness and the trier of fact, while assuring that the requirement of witness confrontation is fulfilled.
608 A.2d at 518-21, quoting in part United States v. Sims, 514 F.2d 147, 149 (9th Cir.), cert. denied, 423 U.S. 845 (1975). See also Luzerne Co. Flood Prot. Auth. v. Reilly, 825 A.2d 779, 784-785 (Pa. Cmwlth. 2003) (discussing aspects of Primavera).
The Thomas exception to the hearsay rule for experts reflected the common law nature of the law of evidence in Pennsylvania prior to the Supreme Court’s adoption of the Rules of Evidence on May 19, 1998. As evidenced by Bolus and Primavera, courts often looked to the F.R.E. for guidance on evidentiary issues. The Explanatory Comments to the Pennsylvania Rules note that both the 1998 version of the Rules and the 2013 version adopted following the 2011 amendments to the F.R.E. closely followed the format, style and language of the F.R.E. but above all sought to preserve the Pennsylvania law of evidence.
Expert testimony in Pennsylvania now is governed by Article VII of the Rules of Evidence, which consists of Rules 701 through 706. Rule 703 provides that:
Bases of an Expert’s Opinion Testimony
An 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.
Rule 703 is identical to the first two sentences of F.R.E. 703 and reflects the common law exception first articulated in Thomas. Although we now have evidentiary rules, the case law developed prior to and reflected in those rules still has precedential value and guides both courts and practitioners in their application. This principle is illustrated anew in the August 31, 2017 Hooks opinion.
As noted above, in Hooks SEPTA challenged the admission of an expert opinion based largely on hearsay. Hooks was a SEPTA conductor. An unruly passenger struck him in the head and injured him. Hooks then sued SEPTA for negligence and called a security consultant for the transportation industry as an expert witness at trial. Hooks’ expert was admitted as such without objection. During the expert’s investigation, he interviewed six other SEPTA conductors but did not record or document those interviews. The six conductors were not called as witnesses. SEPTA objected to the expert’s testimony to the extent it was based on the interviews with the six conductors. The trial court outside the presence of the jury conducted a hearing in accord with Pa. R.E. 104 to determine if the expert’s testimony based on the six undocumented interviews was admissible. At the hearing, counsel for Hooks and SEPTA, as well as the Judge, questioned the expert as to his methodology, whether experts in the field relied on witness interviews without deposition testimony, and the extent to which the expert’s opinion was based exclusively on the six interviews. Following the hearing, the court overruled SEPTA’s objection. However, the court did instruct the jury that the witness statements from the six interviews were admissible only to explain a partial basis of the expert’s testimony and should not be considered as evidence of the truthfulness of the statements. The expert testified that SEPTA failed to ensure crew safety, failed to provide adequate training in dealing with unruly passengers, and failed to provide sufficient security. The jury found SEPTA negligent and awarded Hooks $229,000. Before Commonwealth Court, SEPTA argued that the trial court erred when it allowed the expert to present his opinion to the jury because it was based on hearsay and “lacked the requisite factual underpinnings, independent analysis and reliability.”
Commonwealth Court first looked at Rule 703 and noted that the Rule specifically allows otherwise inadmissible hearsay to provide the basis for an expert opinion so long as that hearsay is the type of information an expert in that field would rely upon in forming an opinion. As to SEPTA’s assertion that the expert’s opinion “lacked the requisite factual underpinnings, independent analysis and reliability,” the court concluded that there was sufficient basis in the record for the trial court to conclude that the expert’s methodology was consistent with that used by other experts in the field and that there was no basis to conclude that the expert merely parroted the opinions of others. In concluding that the trial court did not err, Commonwealth Court looked at post 1998 case law including Luzerne Co. Flood Prot. Auth. and Superior Court’s opinion in In re Adoption of R.K.Y., 72 A.3d 669 (Pa. Super. 2013).
However, the court concluded its opinion with an extensive quote from Primavera, which includes the quote from Glosser Bros. referenced above, and opined that the Primavera court’s discussion “of the role, significance and limits of expert testimony in contemporary litigation is highly instructive.” Hooks, Slip op. at 10-11.
In Hooks, past was indeed prologue as two of the seminal pre-Rule of Evidence decisions remain the standard for evaluating the admissibility of hearsay testimony relied upon by experts. Indeed, our Supreme Court on September 12 heard argument in Com. v. Brown, 139 A.3d 208 (Pa. Super. 2016), allocatur granted, 40 EAP 2016; 41 EAP 2016, in which Court considered whether the use of an autopsy report by an expert who did not perform the autopsy as the basis of his opinion as to the cause and manner of victim’s death (1) violates the Sixth Amendment guarantee of the right of Confrontation or (2) runs afoul of Pa. Rule of Evidence 703, which allows an expert to use inadmissible evidence to form his opinion, but does not allow the inadmissible evidence to be used for its truth. The Superior Court opinion contains an extensive discussion of the underpinnings of Rule 703 including reference to the pre-Rule Thomas line of cases. Visit the Supreme Court Argument section of this blog for our analysis of Brown.
However, for those of us who are practitioners of administrative law, there is an additional aspect to both the pre-Rules Thomas line of cases and what is essentially the codification of those decisions in Article VII of the Rules of Evidence. The legal residuum rule has its origin in Carroll v. Knickerbocker Ice Co. 218 N.Y. 435, 113 N.E. 507 (1916), and requires that an administrative agency’s findings must be supported by some evidence, i.e., some “legal residuum” admissible in a jury trial, i.e., admissible in a trial court. The Commonwealth Court adopted the legal residuum rule (“The Walker Rule”) in 1976. In Walker v. Unemployment Compensation Bd. of Rev., 367 A.2d 366, 370 (Pa. Cmwlth. 1976), the court provided guidance on the use of hearsay evidence as follows:
Hearsay evidence, properly objected to, is not competent evidence to support a finding by the UCBR;
Hearsay evidence, admitted without objection, will be given its natural probative effect and may support a UCBR finding if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand.
Administrative tribunals such as the Environmental Hearing Board and the Public Utility Commission routinely allow expert opinion that at least in part relies upon hearsay and use such opinions as the basis for findings of fact. Pa. R.E. 703 aside, the opinion testimony should have the indicia of reliability discussed pre-Rules in Glosser Bros. and Primavera. Superior Court, in Maravich, quoted this passage from McCormick on Evidence § 324.2 (3d ed. 1984) regarding F.R.E 703: “The basis facts may be testified to by the expert, and accordingly they are in evidence. The effect of this has been to create a hearsay exception, or perhaps dispense with the requirement of first-hand knowledge, as the case may be.” Maravich, 504 A.2d at 900-01.
About the Author:
Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service. Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.