Hernandez v. Faker

• Decision Date: 18 October 1983
• Docket Number: CA-CIV,No. 2,2
• Citation: 137 Ariz. 449,671 P.2d 427
• Parties: Arnulfo HERNANDEZ and Isabel Hernandez, husband and wife, Plaintiffs/Appellants, v. Rod Raymond FAKER and Victor R. Ruiz, Defendants/Appellees. 4705.
• Court: Arizona Court of Appeals

Page 427

671 P.2d 427

137 Ariz. 449

Arnulfo HERNANDEZ and Isabel Hernandez, husband and wife, Plaintiffs/Appellants, v. Rod Raymond FAKER and Victor R. Ruiz, Defendants/Appellees.

No. 2 CA-CIV 4705.

Court of Appeals of Arizona,

Division 2.

Oct. 18, 1983.

Russo, Cox, Dickerson, Butler & Russo, P.C. by Karl MacOmber, Tucson, for plaintiffs/appellants

Fish, Briney, Duffield, Miller, Young & Adamson, P.C. by Samuel D. Alfred, Tucson, for defendant/appellee Faker.

Leonard Everett, Tucson, for defendant/appellee Ruiz.

OPINION

BIRDSALL, Judge.

This appeal arises out of a personal injury complaint. The jury awarded the plaintiffs/appellants $10 damages from the defendant Ruiz and $40 from the defendant Faker for injuries to plaintiff Isabel Hernandez. Her injuries were claimed to result from rear-end collisions involving both defendants on March 26, 1980. The trial court denied the appellants' motion for additur and new trial. We affirm.

The only question presented on appeal is the admission in evidence through the direct examination of an expert doctor witness of hearsay contained in the report of another doctor who did not testify. The records of the other doctor were relied on by the witness in arriving at the expert opinions which he expressed. The appellee contends this was material which the witness was entitled to consider under Rule 703, Rules of Evidence, 17A A.R.S. This rule 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 our 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."

The medical expert witness, Dr. Frankel, who examined Isabel on November 13, 1981, for the defendant/appellee Ruiz, testified generally that he found nothing wrong with her. After expressing his opinion that she could do her normal work as a restaurant cook, he was asked if he had found in the records furnished him a report signed by a Dr. Lapp who had previously treated Isabel containing a statement that five days before the accident she was totally disabled. ¹ The appellants' counsel objected that the question was leading and hearsay. The trial court inquired "How do you answer the hearsay objection" and an unreported bench conference followed. The court then overruled the objection and the witness was permitted to testify to some of the contents of Dr. Lapp's records. A later mistrial motion was denied. The records were also admitted in evidence, but later withdrawn by the appellees with the court's permission. In Zier v. Shamrock Dairy of Phoenix, Inc., 4 Ariz.App. 382, 420 P.2d 954 (1967), Division One said:

"Reports of expert findings which are sought to be introduced in evidence as bases of opinion of a testifying medical expert are hearsay and are inadmissible. Security Benefit Assn. v. Small, 34 Ariz. 458, 272 P. 647 (1928); Middleton v. Green, 35 Ariz. 205, 276 P. 322 (1929); Bogard GMC Co. v. Henley, 2 Ariz.App. 223, 407 P.2d 412 (1965). Dr. Eisenbeiss and Dr. Kelley were not available for cross-examination during the trial. Their reports are hearsay." 4 Ariz.App. at 383, 420 P.2d 954.

The opinion, however, goes on to hold that since the use of the reports arose on cross-examination, their admission was proper. Zier was decided before our adoption of the Federal Rules of Evidence and therefore the court did not consider Rule 703. No reported Arizona case has considered this exact question since then, although some have considered the rule. See State v. Rupp, 120 Ariz. 490, 586 P.2d 1302 (App.1978), citing State v. Clark, 112 Ariz. 493, 543 P.2d 1122 (1975), a pre-rule case.

Assuming arguendo the evidence introduced qualified as "facts or data" then it was admissible for the limited purpose of showing some of the basis for the opinion of the expert witness. We hold, contrary to Zier, that the testimony may be elicited on the direct examination of the witness.

The comment to Rule 703 contains the statement, "If the facts or data meet this standard and form the basis of admissible opinion evidence they become admissible under this rule for the limited purpose of disclosing the basis for the opinion unless they should be excluded pursuant to an applicable constitutional provision, statute, rule or decision. It also states, "Evidence which is inadmissible except as it may qualify as being 'reasonably relied upon by experts in the particular field' has traditionally included some things as certain medical reports and comparable sales in condemnation actions." Despite this comment there is no Arizona opinion directly holding facts or data properly relied on by a medical expert witness to be admissible in the direct examination of that witness. City of Scottsdale v. Eller Outdoor Advertising, 119 Ariz. 86, 579 P.2d 590 (App.1978), is, however, directly in point if a comparison with condemnation case damage law is valid. In City of Scottsdale, Division One of this court found the exclusion of evidence showing comparable sales of billboard companies was reversible error. The opinion holds that evidence of comparable sales offered as a factor in allowing an expert to determine a capitalization rate for the property was admissible. Division One also quoted with approval from City of Renton v. Scott Pacific Terminal, Inc., 9 Wash.App. 364, 512 P.2d 1137 (1973), which quoted from an earlier Washington case holding in part:

"We now hold that, when a expert is allowed to testify to a valuation opinion which is in part based on facts which would normally be hearsay and inadmissible as independent evidence, the trial court may in its discretion allow the expert to state such facts for the purpose of showing the basis of the opinion. The exclusion of such evidence, however, must be based on a sound exercise of discretion and not on an erroneous application of the hearsay and best evidence rules." 119 Ariz. at 96, 579 P.2d 590.

Judge Jacobson, writing for Division One, went on to note that the evidence "... may well fall within the category of 'a type reasonably relied upon' as set forth in Rule 703 ..." We see no valid reason for admitting evidence of comparable sales in condemnation and not admitting facts upon which other experts rely in forming their opinion provided they are shown to be of the type reasonably relied upon by experts in that particular subject.

The introductory note to Article VII, Opinions and Expert Testimony, Rules of Evidence, 17A A.R.S., contains this comment:

"The rules in this article are designed to avoid unnecessary restrictions concerning the admissibility of opinion evidence; however, as this note makes clear, an adverse attorney may by timely objection, invoke the court's power to require that before admission of an opinion there be a showing of the traditional evidentiary prerequisites. Generally, it is not intended that evidence which would have been inadmissible under pre-existing law should now become admissible.

A major objective of these rules is to eliminate or sharply reduce the use of hypothetical questions. With these rules, hypothetical questions should seldom be needed and the court will be expected to exercise its discretion to curtail the use of hypothetical questions as inappropriate and premature jury summations. Ordinarily, a qualified expert witness can be asked whether he has an opinion on a particular subject and then what that opinion is. If an objection is made and the court determines that the witness should disclose the underlying facts or data before giving the opinion, the witness should identify the facts or data necessary to the opinion.

In jury trials, if there is an objection and if facts or data upon which opinions are to be based have not been admitted in evidence at the time the opinion is offered, the court may admit the opinion subject to later admission of the underlying facts or data; however, the court will be expected to exercise its discretion so as to prevent the admission of such opinions if there is any serious question concerning the admissibility, under Rule 703 or otherwise, of the underlying facts or data."

Despite the clarity of the holding in Scottsdale, the opinions concerning other expert testimony which is based in part on matters not otherwise in evidence are not as succinct. See State v. Rupp, 120 Ariz. 490, 586 P.2d 1302 (App.1978); Ehman v. Rathbun, 116 Ariz. 460, 569 P.2d 1358 (App.1977). These cases, Rupp and Ehman, lend only partial support to our holding since neither directly decided a similar issue. Rupp involved the admission of a series of slides showing tissue taken from various organs of a homicide victim. The slides were prepared by laboratory personnel at the direction of the expert witness and in that preparation the tissue might have been altered. Also, since only the doctor testified, there was a foundational question whether the slides were from the victim's body. The opinion disposes of these two questions with the following paragraph:

"If there was error in admitting the slides into evidence the error was harmless. The essential function of the slides was to provide a portion of the factual basis for Dr. Jarvis's expert testimony. Arizona now follows the rule that if supportive factual material is of a type reasonably relied upon by experts in the formation of opinions, the material itself need not be admitted into evidence. State v. Clark, 112 Ariz. 493, 543 P.2d 1122 (1975). See also Rule 703, Rules of Evidence, 17A A.R.S. From the record adduced, the slides in issue here consist of such material. The slides were prepared for the use of the expert. They are obviously not discernible by a layman and there is no suggestion that they could have been intelligently used or perceived by the jury prejudicially to appellant. There was accordingly...