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").