Matter of State of New York v Mark S., 2011 NY Slip Op 04792 (3d Dept. 2011)
An astute commentator could probably write an article correlating the plaintiff’s bar’s purported financial detriment, viz. excluding defense doctors based upon impermissible “peer hearsay”, with the advent of Article 10 of the Mental Health Law. I for one always found peer hearsay challenges specious, and convinced a civil court judge in a pre Article 10 published decision as such. But, these Article 10 cases have pretty much done what the Appellate Division in the Matter of State of New York v Mark S. has said it did not want to do: “the expert should not be made a “conduit for hearsay”
I for one do not have a problem with the expert relying on hearsay, if only because the cross-examination pretty much focuses on the lack of personal knowledge of the expert with the hearsay records, and it allows an opposing expert to find holes in the hearsay records relied upon.
Also, do not take the cavalier viewpoint that these Article 10 cases do not apply to no-fault or 5102(d) threshold practice. We have already seen the Appellate Term, Second Department, rely on an Article 10 case in finding that peer hearsay is admissible. There will be more cites to these types of cases in the future.
Here is the pertinent portion of the case:
“Initially, while civil rules of evidence apply to Mental Hygiene Law article 10 hearings (see Mental Hygiene Law § 10.07 [b]), the governing statute expressly contemplates that psychiatric examiners will have access to and consider all of a “respondent’s relevant medical, clinical, criminal or other records and reports” (Mental Hygiene Law § 10.08 [b]). While generally opinion evidence must be based on facts in the record or personally known to the witness (see Bednarz v Inn On Bridges St., Inc., 68 AD3d 1411, 1412 [2009]), under the professional reliability exception to the hearsay rule, an expert may provide an opinion based on otherwise inadmissible hearsay, “provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]; see Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]). The documentary evidence at issue — presentence reports, SORA records and parole revocation records — was properly relied upon by Lord in forming his expert opinion because, as Lord testified without contradiction (see People v Goldstein, 6 NY3d 119, 125 [2005], cert denied 547 US 1159 [2006]; Matter of State of New York v Motzer, 79 AD3d 1687, 1688 [2010]), they are of the type commonly relied upon in this setting (see Matter of State of New York v Wilkes, 77 AD3d 1451, 1452-1453 [2010] [parole records]; Matter of State of New York v J.A., 21 Misc 3d 806, 816-817 [Sup Ct, Bronx County [*4]2008] [presentence report]; but see State of New York v Dove, 18 Misc 3d 254, 256-258 [Sup Ct, Bronx County 2007]). In fact, such records have been specifically deemed reliable by Mental Hygiene Law § 10.08 (see Matter of State of New York v Pierce, 79 AD3d 1779, 1780 [2010], lv denied 16 NY3d 719 [2011]) [“parole board documents, presentence reports, accusatory instruments, certificates of conviction, police reports and respondent’s criminal records”]; see also People v Mingo, 12 NY3d 563, 572-574 [2009] [case summaries, presentence reports and victim statements are reliable hearsay admissible in SORA proceedings][FN2]).
Moreover, the hearsay in issue represented only a small fraction of the evidence considered by the experts and “[did] not constitute the sole or principal basis for the experts’ opinion” (Matter of State of New York v Fox, 79 AD3d 1782, 1783 [2010]). Lord’s consideration of evidence of the facts underlying respondent’s conduct beyond the crimes of conviction, upon his guilty pleas, was not improper, given that the evidence of uncharged crimes (or crimes greater than the ultimate conviction) was “relevant and not unduly prejudicial,” and there is “no provision in Mental Hygiene Law article 10 that limits the proof to acts that resulted in criminal convictions when considering [respondent’s mental abnormality]” (Matter of State of New York v Shawn X., 69 AD3d 165, 172 [2009], lv denied 14 NY3d 702 [2010]; see Matter of State of New York v Fox, 79 AD3d at 1784).
We now turn to whether the documentary evidence itself was properly received in evidence to assist Supreme Court as factfinder in evaluating the experts’ opinions. Initially, expert testimony based upon hearsay is ordinarily admissible under the professional reliability rule “for the limited purpose of informing the [factfinder] of the basis of the expert[s’] opinion[s] and not for the truth of the matters related” (Matter of State of New York v Wilkes, 77 AD3d at 1453 [internal quotation marks and citation omitted]; see People v Wlasiuk, 32 AD3d 674, 680 [2006], lv dismissed 7 NY3d 871 [2006]). The court properly admitted this testimony for the limited purpose of aiding its evaluation of the experts’ psychiatric opinions. While the court — in its decision finding that respondent suffers from a mental abnormality — concluded that there was relevant and adequate evidence in the record demonstrating that there was a nonconsensual element to respondent’s rapes, recounting facts contained in the victims’ supporting depositions, the court reached this conclusion for the narrow permissible purpose of concluding that these depositions were “properly considered in the formulation of professional opinions.” Thus, contrary to respondent’s claim, we do not find that Supreme Court erroneously relied on the hearsay statements contained in the exhibits for the truth of the matters asserted therein.
There is, of course, a recognized “distinction between the admissibility of an expert’s opinion and the admissibility of the information underlying it” (People v Goldstein, 6 NY3d at 126). There is no clear rule on when “a proponent of an expert’s opinion [may] put before the fact finder all of the information, not otherwise admissible, on which the opinion is based” (id.). Thus, “whether evidence may become admissible solely because of its use as a basis for expert testimony remains an open question in New York” (Hinlicky v Dreyfuss, 6 NY3d at 648; see Matter of State of New York v Fox, 79 AD3d at 1783)[FN3]. The concern is that the expert should [*5]not be made a “conduit for hearsay” (People v Goldstein, 6 NY3d at 126 [internal quotation marks and citation omitted]). A related concern in criminal cases is the right of a defendant under the Confrontation Clause (US Const Sixth Amend) to cross-examine declarants regarding their hearsay statements (id. at 127; see Crawford v Washington, 541 US 36 [2004]), a right not applicable in these Mental Hygiene Law article 10 civil proceedings (see Matter of State of New York v Wilkes, 77 AD3d at 1451-1452; see also Mental Hygiene Law § 10.01; Matter of State of New York v Campany, 77 AD3d 92, 95-98 [2010], lv denied 15 NY3d 713 [2010]).
With due regard to the foregoing concerns, we are not persuaded that Supreme Court, acting as factfinder at this bench trial, abused its discretion or erred as a matter of law in admitting these customarily relied-upon documentary records containing hearsay into evidence for its evaluation of the weight and credibility of the expert testimony (see Matter of State of New York v Pierce, 79 AD3d at 1781; Matter of State of New York v Craig T., 77 AD3d 1062, 1064 [2010]).”
9 Responses
Well written but still horrendous. I am so sick of this idiocy.
Why do we bother having Judges try cases. Their main job in a trial is evidentiary rulings. The reason we have trials and rules of evidence is to keep garbage away from some the dumbest people on earth — triers of fact; the good ole American citizen. The one’s who gave us George W and Obama, etc. People that still believe the National Enquirer. The People think that Fox is fair and balanced.
This new found garbage rule — everything gets in — is undoubtedly fostered by the Judiciary’s love of Judge Judy and the like.
Or are these “no rules of evidence” decisions just a job action on the part of Judges in protest of their lack of a pay raise.
Well since Courts really don’t need to consider much in the way of hearsay in making trial rulings — not with the Judge Judy rules; and given that hearsay makes up about 90% of trial rulings — perhaps Courts are all over paid.
I have seen Judges try 7 figure cases when I was at the Corp Counsel while talking on the phone for most of the trial. The key determinent of how the Judge would rule was what attorney made the objection.
I guess now we have fairness as everything gets in. But I have seen these “everything” rulings. They seem in the main to mostly benefit the government and insurance companies.
I don’t want to be an American Idiot.
It is the Third Department. What do you really expect?
No … I have seen more sanity from the 3rd and 4th Depts then I have from the sophisticated down state departments.
Why did I drive myself to Xanax trying to learn hearsay in law school when no one on the Judiciary understands it so they do away with barring it.
So Mr. Zuppa are you saying that the underlying medical records of an injured party (who is trying to collect $ for injuries) are not reliable and should not be an exception to the hearsay rule? Or are you saying the underlying records of the injured party show that they are not seriously injured so they are prejudicial to the Provider’s case and should be precluded and not admissible?
Shouldn’t the cases be decided on the merits? If the injured party is cut off from benefits but the medical records contradict that opinion Plaintiff should win? If the medical records support the cut off from benefits then the defendant should win?
Come on, guys. What’s the real purpose of the hearsay rule? To avoid having witnesses get on the stand and say “Curly told me that Moe held up the liquor store” and have that come in as evidence that Moe held up the liquor store. An expert’s opinion is just that: an opinion. In no-fault cases, the expert is basing his opinion on medical records. If there is some reason to doubt the veracity of the medical records, that should come out in cross-examination. Geez Louise, guys and gals, it all comes down to a difference of opinion between doctors; let’s not chew our fingernails down to the quick over it.
Let us suspend the rules of evidence because Larry Rogak says so. Elimate hearsay because it suits insurance companies. Geez Louise. Hundreds of years of law down the drain.
Mr. [edited]:
Are you trying to cross examine me. You are about as effective as Bill O’Reilly. I am not suggesting any of your “is it this” or is it that choices.” (I am supposed to adopt one of your fictitious choices because you are so smooth)
Perhaps you should read the case before telling me what I suggest. In fact I commented on much broader issues. The purpose of a Court and the rules of evidence.
Anyone who has ever tried a case knows that once something is put before a jury — hearsay or not — the Jury considers it as fact. Limiting instructions are nothing more then yellow highlighter placed on the hearsay so that the Jury really considers it. “Informing the jury as to the basis of the opinion” — that is the most ridiculous line I have ever read. That’s telling a jury that the record is the truth — is the opinion correct.
Now to your suggestions. Since when is Peersay relegated to “plaintiff’s records.” I have seen Peer Reviews that rely on other Peer Reviews — what is that hearsay to tenth power — IME reports, denials, PARs, ACRs, EBTs and the like. I have seen hundreds of them. When does it end.
Secondly how do we know that the so called “Plaintiff’s records” are reliable. Remember hearsay is considered to be inherently unreliable. It is not tested on cross. The declarant is not before the jury so the declarant’s credibility is not evaluated. Did the E.R. Resident on her 14th hour hear what the Plaintiff had to say correctly. Was it written down correctly. What about the results of examination procedures. Are the hospital records, PARs, ACRs, aided cards, really “plaintiff’s records.” etc.
Let us go to another issue. Authentication. Do you know the rule and purpose of authentication. How do we know what the Peer Review miscreant actually looked at. Put the record before the jury. Have it authenticated. Q. “Is that a record of Dr. Smith’s May 3, 2008 examination of the Plaintiff” A. “A doctor Smith never saw me.”
How do you do all of this. Easy. Notice to Admit. “Is this a true and accurate copy of the examination of Dr. Smith on 00/00/00” etc. Do it for x-rays, all the medical records. This is why we have notices to admit. To streamline the trial evidentiary requirements. The App Term 2nd has no idea of this.
Secondly subpoena the doctor, nurse, social worker etc to trial. You do not have to do this if you use the NTA but if you have an idiot that denies; then bring in the witness and have the idiot pay your expenses if the denial was unwarranted.
Mr. [edit] and Mr. Rogak we want cases to be decided on the merits. Not the nonsense that people will make up, utter out of court and have introduced to a jury while the declarant is somewhere off denying an old lady’s claim.
Why should nonsense be cross examined Larry. Let it pass the evidentiary hurdle that was created by men far more intelligent then you and Mr. Malign.
I always like to bring abstract discussions back to reality, and these hearsay debates always swerve into the abstract zone. Any expert opinion is only as good as the material reviewed by the expert. In no-fault, experts typically review medical records. In the field of medicine, doctors review patients’ medical records all the time, because patients are seen by different doctors. Very often, patients are seen by more than one doctor. When your surgeon reviews the records of your general practicioner, the surgeon relies on your family doctor’s records in determining your future treatment (as well as his own examination of you). Why? Because it is both a legal and professional requirement that doctors keep accurate records of their patients’ care. Failure to keep accurate records can lead to serious harm, even death. If your family doctor fails to note that you have a serious allergy to a medication, one of your other doctors may give you that medicine and you may die.
There are few instances, outside of medicine, where the reliability of records is such a requirement. That’s why it is reasonable for a peer doctor to give his opinion based on a patient’s medical records.
If the records reviewed by the peer doctor have been tampered with, or are incomplete, or if there is any other reason why they are not reliable, that can be brought out on cross-examination and, if true, will totally undercut the value of the expert’s opinion.
In the course of these hearsay debates, the views that “medical providers are crooks” and “insurance companies are thieves” really have nothing to do with the issue.
And let’s get real about something else: the trier of facts in 99.99999% of no-fault suits is a judge sitting without a jury. They’ve “heard it all,” a thousand times. The odds of a judge being unduly persuaded by a groundless opinion are pretty close to zero.
In reality, there is only one practical argument for not permitting an expert doctor to base his opinion on medical records not in evidence: doing so makes the trial an automatic win for the plaintiff because the court doesn’t get to hear the merits. And didn’t my dear friend Mr. Zuppa write, supra, that he thinks these cases should be decided on the merits? He did, and I heartily agree.
Larry you have added much abstraction to this debate along with a bunch of irrelevancy. In so doing you have failed to address my points and limited the discussion to no fault.
Further you assume that everything that is relied upon by the so called expert are medical records prepared by the Assignor’s physician(s) and not the myriad other documents considered as discussed in my response.
Further you assume that everything will be there — all the documents relied upon. That is hardly the case.
Finally again I say to you that the rules of evidence are meant to prevent cross examination of the inadmissible.
By the way a decision on the merits assumes the elimination of hearsay — absent a recognized logical exception — because hearsay is inherently unreliable. Check your hornbook. Add that line to your next edition of New York No Fault.
A trial on the unreliable is hardly a trial on the merits.
Larry I stip all the time to records being introduced at trial wherein a Peer Review Doc will testify. But the documents are limited to what I have reviewed and deemed to be true, accurate, and relevant — another issue. I do not recall having one argument with defense counsel.
Just don’t come in and tell me that your doctor relied on the IME performed by Dr. Noone Hurt or the peer review performed by Dr. Greaseme Senile.
And I don’t care who the trier of fact is. If it is a Judge the Judge should have the sense to exclude hearsay from the Judge’s findings. The rules still apply.
Now happy father’s day to my good friend Larry Rogak. I know personally that Larry has every reason to be a proud father. And we should all be proud of the service to this nation provided by a Rogak.
God Bless Larry and happy father’s day to all.