211 F.3d 449 (8th Cir. 2000), 99-1944, Brennan v. Reinhart

Docket Nº:99-1944
Citation:211 F.3d 449
Party Name:Tina Brennan, Plaintiff-Appellee, v. Reinhart Institutional Foods; Defendant-Appellant, Bunn-O-Matic, Inc., Defendant
Case Date:April 26, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 449

211 F.3d 449 (8th Cir. 2000)

Tina Brennan, Plaintiff-Appellee,

v.

Reinhart Institutional Foods; Defendant-Appellant,

Bunn-O-Matic, Inc., Defendant

No. 99-1944

United States Court of Appeals, FOR THE EIGHTH CIRCUIT

April 26, 2000

Submitted: February 16, 2000

Appeal from the United States District Court for the District of South Dakota.

Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.

LAY, Circuit Judge.

Reinhart Institutional Foods (Reinhart) appeals the district court's admission of hearsay through the expert testimony of a vocational rehabilitation counselor. Because we feel the decision to admit the evidence is supported by Federal Rule of Evidence 703, we affirm.

I. Facts and Background

Tina Brennan sued for personal injury arising from an electric shock she received from a coffee maker while working as a

Page 450

waitress. She brought suit against Reinhart, as Reinhart had supplied the coffee machine to her employer and a Reinhart employee installed it. She allegedly developed fibromyalgia from the resulting shock. During the course of the trial, the district court 1 allowed Brennan's vocational rehabilitation counselor, Rick Ostrander, to mention hearsay statements by Brennan's physicians in expressing his opinion as to her probable loss of employability and earning capacity due to her injuries.

During the course of Ostrander's testimony, he stated Dr. P. James Eckhoff, Jr., a rheumatologist, had earlier reported Brennan "as having a permanent partial impairment of eleven percent of the whole person." (Tr. at 323.) Ostrander also noted that Brennan had been treated by Dr. Myung J. Cho, a specialist in physical medicine and rehabilitation, and she was independently evaluated by Dr. Chris Tountas. Reinhart objected to Ostrander's statements as referring to hearsay that was not in evidence and not subject to cross-examination. The district court overruled the objection on the grounds that an expert can rely on matters not in evidence in forming an opinion. Ostrander then explained that Dr. Eckhoff's and Dr. Cho's reports that Brennan suffered a permanent partial impairment of eleven percent were "significant to [him] as a vocational rehabilitation specialist because [they] indicate[ ] a medical opinion of a permanent condition; one that is not likely to get substantially better or worse in the future." (Tr. at 324.) Additionally, Ostrander referred in his opinion to a functional capacities evaluation administered to Brennan by an occupational therapist. Reinhart objected on the same grounds, and, again, the district court overruled the objection. The jury found for Brennan, and she received a jury verdict of $256,000.

II. Discussion

The gravamen of this appeal is that the reports indicating a permanent partial impairment of eleven percent and the results of Brennan's functional capacities assessment were not otherwise mentioned during the trial. Dr. Eckhoff and Dr. Patricia Malters, a physician of internal medicine who still treated Brennan at the time of trial, did not appear at trial but gave testimony by deposition. Although testimony was given regarding Brennan's permanent disability by these experts, it does not appear either testified as to the eleven percent evaluation. Ostrander also referred to Dr. Cho's medical report; however, Dr. Cho did not testify by deposition or otherwise. Thus, it is argued that the district court abused its discretion because it allowed the admission of hearsay medical opinions presented solely through the testimony of Ostrander, the vocational counselor.

The sole issue on appeal involves the proper application of Federal Rule of Evidence 703. It reads:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

We have visited this problem on prior occasions. We have explained that "an expert may rely on otherwise inadmissible hearsay evidence in forming his opinion if the facts and data upon which he relies are of a type reasonably relied upon by experts in his field." Arkwright Mutual Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir. 1997) (citing Fed. R. Evid. 703; South Cent. Petroleum, Inc. v. Long Bros. Oil Co., 974 F.2d 1015, 1019 (8th Cir. 1992)). We have also noted that

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"[o]nce expert testimony has been admitted, the rules of evidence then place 'the full burden of exploration of facts and assumptions underlying the testimony of an expert witness squarely on the shoulders of opposing counsel's cross-examination.'" Ratliff v. Schiber Truck Co., 150 F.3d 949, 955 (8th Cir. 1998) (quoting Newell Puerto Rico, Ltd. v. Rubbermaid Inc., 20 F.3d 15, 20 (1st Cir. 1994)). It is, therefore, the "burden of opposing counsel to explore and expose any weaknesses in...

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14 practice notes
  • Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, 033118 ARWDC, 5:14-CV-5262
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Arkansas
    • 31 Marzo 2018
    ...“is inadmissible as substantive evidence to prove the truth of the fact asserted.” See Brennan v. Reinhart Institutional Foods, 211 F.3d 449, 451 (8th Cir. 2000). However, “once expert testimony has been admitted, the rules of evidence then place the full burden of ......
  • Vol. 13, No. 6, Pg. 14. South Carolina Evidence Rule 703: A backdoor exception to the hearsay rule?.
    • United States
    • South Carolina Bar Journal Nbr. 2002, January 2002
    • 1 Enero 2002
    ...restricted use. See, e.g., U. S. v. 0.59 Acres of Land, 109 F.3d 1493 (9th Cir. 1997); Brennan v. Reinhart Institutional Foods, 211 F.3d 449 (8th Cir. 2000); Henry v. Brenner, 486 N.E.2d 934 (Ill. App. Ct. 1985); and JoAnne A. Epps, Clarifying the Meaning of Federal Rule......
  • Gilliland v. Harley-Davidson Motor Co. Group, LLC, 102815 NEDC, 8:12CV384
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • 28 Octubre 2015
    ...the testimony of an expert witness squarely on the shoulders of opposing counsel's cross-examination.” Brennan v. Reinhart Inst'l Foods, 211 F.3d 449, 451 (8th Cir. 2000) (internal quotation Structural Polymer Group, Ltd. v. Zoltek Corp., 543 F.3d 987, 997-98 (8th Cir. 2008). “If a factfind......
  • Stock v. Rodriguez, 100219 NEDC, 4:17CV3038
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • 2 Octubre 2019
    ...A district court in Brennan v. Reinhart Institutional Foods, No. CIV97-4014, 1998 WL 2017925 (D. S.D. Sept. 17, 1998) aff'd 211 F.3d 449 (8th Cir. 2000) was presented with a somewhat similar situation. In that case, the court permitted the plaintiff's vocational ......
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13 cases
  • Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, 033118 ARWDC, 5:14-CV-5262
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Arkansas
    • 31 Marzo 2018
    ...“is inadmissible as substantive evidence to prove the truth of the fact asserted.” See Brennan v. Reinhart Institutional Foods, 211 F.3d 449, 451 (8th Cir. 2000). However, “once expert testimony has been admitted, the rules of evidence then place the full burden of ......
  • Gilliland v. Harley-Davidson Motor Co. Group, LLC, 102815 NEDC, 8:12CV384
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • 28 Octubre 2015
    ...the testimony of an expert witness squarely on the shoulders of opposing counsel's cross-examination.” Brennan v. Reinhart Inst'l Foods, 211 F.3d 449, 451 (8th Cir. 2000) (internal quotation Structural Polymer Group, Ltd. v. Zoltek Corp., 543 F.3d 987, 997-98 (8th Cir. 2008). “If a factfind......
  • Stock v. Rodriguez, 100219 NEDC, 4:17CV3038
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • 2 Octubre 2019
    ...A district court in Brennan v. Reinhart Institutional Foods, No. CIV97-4014, 1998 WL 2017925 (D. S.D. Sept. 17, 1998) aff'd 211 F.3d 449 (8th Cir. 2000) was presented with a somewhat similar situation. In that case, the court permitted the plaintiff's vocational ......
  • 870 N.W.2d 1 (Neb. 2015), S-14-290, Arens v. NEBCO, Inc.
    • United States
    • Nebraska Supreme Court of Nebraska
    • 18 Septiembre 2015
    ...465 (2013). [19] Griffith, supra note 14. [20] Id. [21] See § 48-1107.02(5). [22] See, e.g., Brennan v. Reinhart Institutional Foods, 211 F.3d 449 (8th Cir. 2000); 2 McCormick on Evidence § 324.3 (Kenneth S. Broun et al. eds., 7th ed. [23] See, Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N......
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