Brunner v. Brown
| Decision Date | 22 January 1992 |
| Docket Number | No. 91-15,91-15 |
| Citation | 480 N.W.2d 33 |
| Parties | Elsie BRUNNER, Paul Warnke, Lucille Warnke, Arthur Eugene Warnke and Ellen L. Kirkestue, Appellants, v. James BROWN and Orville Kapka, Appellees. |
| Court | Iowa Supreme Court |
James F. Smith of Noah & Smith, Charles City, and C.J. Anderson of Anderson, Story & Schoeberl, Cresco, for appellants.
Richard D. Stochl and Christopher F. O'Donohoe of O'Donohoe, O'Connor, O'Donohoe
& Stochl, New Hampton, for appellees.
Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, SNELL, and ANDREASEN, JJ.
John Wermuth's will was challenged by family members on the ground that Wermuth lacked sufficient testamentary capacity. The trial court rejected these arguments, and the contestants appealed. Their sole complaint on appeal is that the court erred in refusing to allow their expert witness, during direct examination, to relate hearsay evidence that he had considered in forming his opinion on the decedent's mental state. We conclude that, while such evidence is admissible under Iowa Rules of Evidence 703 and 705, the district court did not abuse its discretion in rejecting it under the facts of this case.
The contestants' psychiatrist, Dr. Vernon P. Varner, was retained to investigate Wermuth's testamentary capacity. Because Wermuth was deceased, it was necessary for Dr. Varner to base his opinion on interviews he had with Wermuth's social acquaintances and his treating doctor. Dr. Varner testified that this evidence was the kind that psychiatrists regularly rely on in reaching their conclusions.
Dr. Varner was allowed to state his opinions, which were based on these interviews, but he was not permitted to relate the statements themselves or to state the contents of the medical report prepared by Wermuth's treating doctor. The court ruled that they were inadmissible hearsay.
The initial issue is whether an expert witness may relate, in his direct testimony, hearsay evidence on which his opinion is based.
Iowa Rule of Evidence 703 provides:
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 him at or before the trial or 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.
The Iowa rule is identical to Federal Rule of Evidence 703, as to which the advisory committee's note states:
[T]he rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.
Fed.R.Evid. 703 advisory committee's note, citing Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 531 (1962).
An expert may testify from three possible sources: (1) the firsthand observation by the witness; (2) from information obtained at trial through hypothetical questions or the testimony of other witnesses; and (3) the presentation of data to the expert outside of court and other than by his own perception. Id.
The third source, outside presentation of data to the expert, supplements the traditional sources of information and recognizes the practicalities involved. Experts who make their living from examining various authenticating sources, and on which they often make life-and-death decisions, may be reasonably relied on for judicial purposes. Id.
Iowa rule 703 must be applied in tandem with Iowa Rule of Evidence 705, which provides:
The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Rule 705 eliminates the requirement of preliminary disclosures at the trial through other witnesses or by the use of hypothetical questions. The hypothetical question is complex and time-consuming, and it affords an opportunity to argue a case in the middle of the evidence. See Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426-27 (1952); Fed.R.Evid. 705 advisory committee's note.
Under rules 703 and 705, two safeguards in the use of inadmissible evidence in conjunction with an expert's testimony are provided: (1) the information relied on must be of a type reasonably relied on by other experts in the field, and (2) the expert's reliance may be amply tested on cross-examination. United States v. Affleck, 776 F.2d 1451, 1457 (10th Cir.1985).
Whether the underlying evidence is reasonably relied on for purposes of rule 703 is an issue for the trial judge. The expert's own testimony regarding reasonable reliance is not conclusive, being only one factor in the consideration. D. Binder, Hearsay Handbook § 103, at 457 (1983); Supp. at 267. If the underlying evidence is furnished by a biased witness, it probably will be excluded. See, e.g., Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619, 622-24 (8th Cir.1986) ().
While rules 703 and 705 provide a broadened factual basis for expert testimony, they are silent on the question of whether the underlying hearsay evidence itself is admissible. The proponents of the will in this case concede that rules 703 and 705 permit the opinion based on hearsay, but they argue that the details of the underlying information may not be related by the expert on direct examination.
Our rules of evidence are patterned after the federal rules, and we give considerable weight to their rationale and the cases interpreting them. According to the federal advisory committee, it was the intent of federal rule 705 to permit the introduction of "underlying facts or data" necessary to the expert's opinion:
While the rule allows counsel to make disclosure of the underlying facts or data as a preliminary to the giving of an expert opinion, if he chooses, the instances in which he is required to do so are reduced. This is true whether the expert bases his opinion on data furnished him at second hand or observed by him at firsthand.
Fed.R.Evid. 705 advisory committee's note.
One authority characterizes the use of this underlying evidence as falling under an "indirect exception" to the hearsay rule. Binder, Hearsay Handbook § 1.02, at 452. This authority states that
the hearsay itself is not admissible as substantive evidence. It is only admissible to explain the basis of the expert's opinion. In other words, the trier of fact is allowed to give credence to an expert's opinion that is based on the assumption that certain hearsay is true, but is not allowed to give credence to the hearsay itself.
In such case,
[a]n expert is permitted to disclose hearsay for the limited purpose of explaining the basis for his expert opinion ... but not as general proof of the truth of the underlying matter....
Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1356 (5th Cir.1983). Accord People v. Anderson, 113 Ill.2d 1, 10-13, 99 Ill.Dec. 104, 108-09, 495 N.E.2d 485, 489-90 (1986).
[C]ourts and rule makers have yielded to the pressures of expediency so as to recognize a relaxation of the exclusion of otherwise inadmissible hearsay, to the extent that it may be considered as a part of the witness's legitimate cumulation of knowledge if the hearsay information is of that sort as is customarily relied upon by experts in the practice of their profession. The sanction of the general experience and reliability of the expert to sort out the acceptable information upon which he relies, from the unacceptable, is considered an adequate safeguard.
2 Jones on Evidence § 14:21, at 642 (1972). The rationale for this rule is that
[i]f the facts or data of the hearsay type, relied upon by experts are nevertheless inadmissible because there is no recognized hearsay exception under which they could come in, the question naturally arises: how does one test the reliability of the data if it cannot be made available in court for use in cross-examination? Supposedly the answer lies in relaxation of the hearsay rule in such cases so as to make the hearsay data exceptionally admissible on the same principle as that which justifies the expert's use of it, i.e., general acceptability.
In Anderson, 113 Ill.2d at 8-9, 99 Ill.Dec. at 107, 495 N.E.2d at 488, the Supreme Court of Illinois held it was error to deny the introduction of underlying hearsay evidence as a part of the expert's testimony. First, the court noted that neither federal rule 703 nor 705 answers the question of whether eliciting specific facts upon which the expert opinion is based is a matter of right. It noted, however, that
in our judgment the logic underlying Rule 703 ... compels the conclusion that an expert should be allowed to reveal the contents of materials upon which he reasonably relies in order to explain the basis of his opinion.
Id. at 9, 99 Ill.Dec. at 107, 495 N.E.2d at 488. The court noted that rule 703 "expands the range of information available, at least indirectly, to the trier of fact." And, "[i]nasmuch as the opinion based on...
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