Experts can do lots of things that ordinary witnesses cannot do. One of those privileges is to rely on hearsay when testifying. But this can go too far. For example, an expert cannot read verbatim into the record the opinion of another witness on an ultimate fact in issue. That is inadmissible hearsay.
The Benefiels owned a home heated by propane. In 2015, they called Wright Hardware complaining that there was no heat. A Wright Hardware employee came to the home, found the problem, and corrected it. However, he did not perform a leak test when he was finished.
A few days later, a large explosion occurred at the home, substantially destroying the home and surrounding buildings. There was no dispute that the explosion was caused by propane gas. But there was a dispute regarding whether Wright Hardware should have performed the leak test.
A lawsuit was filed and the case went to trial. At trial, Wright Hardware’s expert testified that he had contacted the drafters of the Indiana Fuel Gas Code to see if the leak test should have been performed. He read his question and the answer verbatim to the jury over the Estate’s objection. The jury rendered a defense verdict, and the Estate appealed.
The Court agreed that the email exchange was a textbook example of hearsay—it was an out-of-court statement used to prove the truth of the matters asserted. The Court noted that Rule 703 allows experts to “testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.” While experts may rely on hearsay when reaching their opinions, they cannot be merely “a conduit” for someone else’s opinion.
[S]uch hearsay is inadmissible where it is merely a restatement of another’s conclusion “as a conclusory answer to an ultimate fact in issue,” such that the veracity of the statement is not “subject to the test of crossexamination.” Accordingly, although an expert may rely on others’ opinions as a basis for his opinion if other experts in the field reasonably rely on such opinions, the expert must bring his own expertise to bear in reaching his opinion and may not simply repeat opinions of others or announce that other experts concur with his opinion with respect to the case.
And in this case, there was no evidence of the qualifications of the person who rendered the hearsay opinion. All of this meant that the trial court erred by allowing this line of questioning. This error meant that the defense expert’s opinion was “cloaked with authority” it did not have. That was prejudicial, and lead to the reversal of the defense verdict.
- An expert must bring his own expertise to bear in reaching his opinion and may not simply repeat opinions of others or announce that other experts concur with his opinion with respect to the case.
- An expert cannot rely on the opinions of others if there is no evidence that those being relied upon have any expertise in the relevant subject.