Under Illinois law, is it permissible to cross-examine an expert with documents that contain hearsay?
In short, yes. While there are limitations, an expert can be cross-examined with reports or records that he used to form his opinion even if these documents might otherwise constitute hearsay. Moreover, it does not matter whether the expert relied on these reports and records in reaching his opinion or merely reviewed them. See, e.g., Jager v. Libretti, 652 N.E.2d 1120 (1st Dist. 1995).
In some cases, an expert can be cross-examined even with reports and records that he did not review. A court will not allow this, however, if the “impeachment” of the expert is done in a way that indicates it is merely an attempt to get otherwise inadmissible hearsay evidence in front of the jury.
In Jager, the court gave two illustrations of this rule, representing both the right and wrong ways.
Wrong:
Q: Doctor, I'm showing you what's been marked Defendant's Exhibit Number Two for identification. Could you please tell me what this is a copy of?
A: This is a copy of the emergency room record at Christ Hospital.
* * *
Q: Doctor calling your attention to page two of that document; there's a physician's record, correct?
A: That's correct.
Q: And a physician's record is basically the notes of the treating doctor at the emergency room, correct?
A: That's correct.
Q: Doctor, in terms of medical terminology and report: when you see a circle with a line through it, that means, negative, correct?
A: That's correct.
Q: And, Doctor, calling your attention to the eighth line down on the physician's record; isn't there a notation with a circle and a line through it as to neck discomfort?
A: That's correct.
Right--
Q: Doctor, could you please take a moment to read through the physician's record there? And when you're through please let me know. * * *
A: Okay. * * *
Q: Okay, Doctor, if you would have known at the time that you based your diagnosis and treatment of the plaintiff that, in fact, at the time of the emergency room, that plaintiff made no complaint of neck injuries and no indication of neck tenderness; Would that affect your opinion in any way?
A: No, it would not.
Q: Would the fact that the only thing noted by the doctor was a head contusion in Christ Hospital, that there was no mention of neck pain or back dysfunction; Would that affect your opinion in any way if you knew those facts?
A: No, not really.
Here is what the Jager said about these two examples:
Together, the two colloquies provide textbook examples of what is permitted on cross-examination and what is not. The first colloquy, during which defense counsel attempted to have the Christ Hospital emergency room records read into evidence, is a clear illustration of what the supreme court referred to as introducing substantively the contents of another doctor's opinion. Just as clearly, the second colloquy provides an example of what the supreme court said was permissible, namely, allowing defense counsel to test the expert's opinion by asking if other facts, data, or opinions would alter his opinion. Essentially, an expert may be cross-examined with respect to reports he did not review and did not rely upon, if those reports are truly used as tools of impeachment, rather than as a Trojan Horse used to slip hearsay evidence into the trial.
Interesting post.
This is particularly relevant for economic experts. It is common in wrongful death cases for example, for the defense counsel to introduce damaging information about the plaintiff's past lifestyle, such as drug use, that may have not been allowed in otherwise, thru the use of economic experts at trial.
The Economists @ www.lostcompensation.com
Posted by: Jeannie Elliott | August 27, 2005 at 12:05 PM