Wagman v. Bradshaw

In Wagman v. Bradshaw, 292 AD2d 84, 85, 739 N.Y.S.2d 421 (NY App. Div. 2d Dep't 2002), the Appellate Division held that an expert witness may testify when he or she relied upon inadmissible out-of-court material to formulate an opinion provided: (1) it is of a kind accepted in the profession as reliable as a basis in forming a professional opinion; (2) there is evidence presented establishing the reliability of the out-of-court material referred to by the wit-ness. Id. The Court held that the trial court "committed reversible error in permitting the plaintiff's expert, who presented the only medical testimony offered on the plaintiff's case-in-chief, to testify as to the interpretation of MRI films, as set forth in a written report of a nontestifying healthcare professional, for the truth of the matters asserted in the report." The Second Department stated that "we also take this opportunity to reiterate the requirement that, '[i]n order to qualify for the "professional reliability" exception, there must be evidence establishing the reliability of the out-of-court material' " (id. at 89). The Court further said that "to the extent that prior cases from this Court have not limited application of the 'professional reliability' ba-sis for opinion evidence to permit an expert witness to testify that he or she relied upon out-of-court material which is of a type ordinarily relied upon by experts in the field to formulate an opinion, and have not required proof that the out-of-court material was reliable, those cases should . . . not be followed" (id. at 90). In Wagman v Bradshaw, 2002 Slip Opinion 02423, (2nd Dept. 3/18/02) the Appellate Division summarized the standards necessary for opinion testimony to be admissible: "first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind ac-cepted in the profession as a basis of forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability." The Appellate Division went on to state that "'reliability of the material is the touchstone: once reliability is established, the medical expert may testify about it even though it would otherwise be considered inadmissible hearsay'." Wagman permits a witness to testify as to the contents of a report so long as it is not being offered solely for the truth of the matter being asserted in the out-of-court report.