In my last post, I discussed an analogy to deal with tactics used by your opponent to muddy the waters.  Well, the problem is you have to drag the hogs out of the spring waters and it takes time to clear matters up. What if you could keep them out of the water altogether?

Have you ever had a defense doctor summarize everything under the sun regarding your client’s medical history in an effort to cloud the issues or mislead the jury, knowing you cannot afford to drag every doctor into court to undo the harm?   Well a good portion of such evidence may be totally inadmissible.

Contrary to what a number of attorneys argue. The Rules of Evidence do not permit the admission of materials relied upon by expert witness for truth of matters they contain, if the materials are otherwise inadmissible. Rules of Evidence Rule 703. Faulkner v. Markkay of Indiana, Inc., 633 N.E.2d 798. (Ind. Ct. App 1996).  The Rules simply allow the expert’s opinion to be based upon matters outside the official court record, if it is the sort of information typically relied upon in the expert’s field to render an opinion.

Evidence Rule 703 states, “[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by a experts in the field.” Ind. Evid. R. 702 permits the admission of expert opinion testimony but not opinions contained in documents prepared out of court by other medical doctors.  Evidence Rule 703 permits a testifying expert to rely on such materials, including inadmissible hearsay, in forming the basis of his opinion.

However, it does not allow an expert’s reliance on hearsay or other inadmissible evidence to be used as a conduit for placing unavailable experts or physicians’ statements before a jury.  In other words, the expert witness must rely on his own expertise in reaching his opinion and may not simply repeat the opinions of others. See Miller v. State, 575 N.E.2d 272, 274-75 (Ind.1991) (physician could rely upon but not repeat what another physician told him about diagnosis of defendant’s girlfriend).

Opinions or diagnosis of doctors who are unavailable to testify and not subject to cross examination do not come in as business records under Rule of Evidence 803(6).  Where a party seeks to admit medical or hospital records that contain opinions, the proponent of the records is required to establish the expertise of the opinion giver under Rule of Evidence 702.  Cook v. Whitesell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003); Wilkinson v. Swafford, 811 N.E.2d 374, 391 (Ind. Ct. App. 2004)(citing In re Matter of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004)), abrogated on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Walker v. Cuppett, 808 N.E.2d 85, 97-98 (Ind. Ct. App. 2004).  If the proponent fails to satisfy this foundational requirement, then such records are inadmissible.  See  Also.  Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273 (Ind.App.1998), (held that medical opinions within the certified medical records were not admissible).  Similarly, Rule of Evidence 703 permits experts to base their opinions on hearsay, but does not permit them to testify as to hearsay medical opinions.

Nor are they admissible as statements made for purposes of diagnosis or treatment under Rule of Evidence 803(4). That exception is limited to only statements made by patients, not doctors. Sibbing v. Cave, 922 N.E.2d 594, (Ind. 2010)(prohibited plaintiff from reciting hearsay testimony at trial about what doctor told her about her injuries and diagnosis).

Finally, if such opinions or diagnosis are included in your client’s medical history, such statements represent multiple levels of hearsay based upon conversations by the client with doctors or other healthcare providers who are not subject to cross-examination and whose qualifications to render an expert opinion have not yet been established.  Each level of hearsay must separately satisfy the requirements of Evidence Rules 702, 802 and 901 (authenticity). See Rule of Evidence 805 which deals with multiple levels of hearsay.  This rule states, “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”

One caveat to note on cross-examination of the defense doctor.  Rule 703  does allow for you to inquire on cross examination at to the basis. It provides “The expert may in any event be required to disclose the underlying facts or data on cross-examination.”  However, be careful because you could open the door to inadmissible and damaging items being brought out on redirect.

Be ready for this issue and close the floodgates of misinformation through the use of timely objections or a motion in limine.