Experts, unlike fact witnesses, are sometimes allowed to testify about inadmissible hearsay if they relied on the hearsay to form an opinion. Whether or not they mention the hearsay in their testimony, the federal (and most state) rules of evidence prohibit experts from giving opinions that are based on hearsay unless experts in the field reasonably rely on hearsay of the same nature when they form opinions.
The relationship between the hearsay rule and the admissibility of expert testimony can cause considerable confusion. An appellate court in Iowa recently explained that expert testimony about a standard of care was erroneously admitted because the expert opinion was based on hearsay.
The hearsay consisted of data that the expert collected in a survey. While the expert might have been entitled to rely on the hearsay, the party who offered the evidence offered no proof that standard of care experts reasonably rely on similar hearsay when they form opinions.
Facts of the Case
Edward Franzen sued his dentist, Dr. Alan Kruger, for malpractice. Franzen was experiencing pain from an abscessed tooth. His dentist had retired so he made an appointment with Dr. Kruger, whose office was close to Franzen’s farm.
Dr. Kruger took x-rays of Franzen’s teeth. After discovering that one of Franzen’s molars was cracked, Dr. Kruger recommended extracting the tooth. Franzen consented to the extraction.
Dr. Kruger used an extraction procedure known as the resection method. The method requires the dentist to break the tooth into three pieces.
Dr. Kruger attached a surgical bur to his drill to perform the procedure. When the bur spins, it acts as a rotary cutting device.
The bur came loose from the drill during the procedure. Franzen felt it hit the back of his throat. He gagged and coughed but could not cough up the bur. After the extraction was completed, Dr. Kruger advised Franzen to have his lungs checked in case the bur had fallen into his windpipe.
After taking x-rays and a CT scan, doctors confirmed that the bur was trapped in a lower lobe of a lung. Surgeons later removed the lobe but could not find the bur, which had migrated to a different part of the lung. Surgeons were ultimately able to extract it using a bronchoscope.
As a result of the surgeries, Franzen has a lower than normal lung capacity. He runs out of breath more quickly than he did before the surgery, which makes it more difficult for him to complete his work. His singing in the church choir was impaired by his inability to draw sufficient breath to hold a note.
Franzen sued Dr. Kruger on the obvious theory that careful dentists do not send sharp objects spinning down the throats of their patients. A jury agreed and awarded him $400,000 in damages, including $320,000 in future damages.
Expert Testimony
A dental malpractice lawsuit in Iowa, like medical malpractice lawsuits around the country, requires an injury victim to prove that the injury was caused by the provider’s breach of the appropriate standard of patient care. That standard and whether it was breached must, in most cases, be proved by expert testimony.
Franzen relied on the expert testimony of Dr. Cheri Lewis. Dr. Lewis is a general dentist who practices in Beverly Hills.
The trial court rejected the claim that Dr. Lewis was unqualified to render an opinion because she practices general dentistry rather than oral surgery. Dr. Kruger is a general dentist, not an oral surgeon. Dr. Lewis was qualified to describe the standard of care that applies to general dentists who extract teeth.
Dr. Lewis opined that the injury was most likely caused by Dr. Kruger’s failure to secure the bur in his drill before he started the extraction. A reasonably prudent dentist would, in her opinion, secure the bur. She considered the failure to do so to be a breach of the appropriate standard of care.
Dr. Lewis also testified that prudent dentists use a bite block and a throat pack during extractions. A bite block (also known as a mouth prop) is a wedge-shaped device that dentists use to keep a patient’s mouth open during a procedure. A throat pack is essentially a piece of gauze that is stuffed into the back of the throat to prevent material from traveling down the patient’s windpipe.
Dr. Lewis testified that a bite block and a throat pack would have shielded Franzen’s throat from unexpected debris. In her opinion, the failure to use them during Franzen’s surgery breached the appropriate standard of care.
Hearsay Objection to Expert Testimony
Before testifying, Dr. Lewis conducted a survey of directors of oral surgery programs around the country. She asked whether the use of a bite block and throat pack were part of the protocol they taught for tooth extractions. She conducted the survey to confirm that the standard routinely followed in California was also a national standard.
About a third of the directors responded to the survey. The consensus among those who responded was that bite blocks and throat packs are part of the accepted protocol for tooth extractions.
Dr. Kruger objected that Dr. Lewis’ opinion was based on hearsay to the extent that she relied on the survey. The defense complained that it could not cross-examine the survey participants. The trial court overruled the objection.
Appellate Court’s Hearsay Analysis
The question before the appellate court was whether an expert can testify about inadmissible hearsay. Iowa follows the general rule that an expert “may base an opinion on facts and data in the case that the expert has been made aware of,” including inadmissible evidence if “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”
Would dental experts reasonably rely on survey data in determining a standard of care? Dentists who attend professional training seminars routinely rely on instructors to define a standard of care. Rather than attending a seminar, contacting instructors directly to learn about a standard of care might be something that reasonable dentists would do. Whether standard of care experts reasonably rely on data that they generate from their own surveys is less clear.
Unfortunately for Franzen, Dr. Lewis did not testify that experts in the field of dentistry reasonably rely on the expertise of instructors nationwide to inform their opinions about appropriate standards of care. Nor did she testify that dentistry experts reasonably rely on survey data to help them form standard of care opinions. In the absence of that foundation, the Iowa Court of Appeals concluded that her testimony was inadmissible.
The appellate court noted that the foundation cannot be laid with testimony that other experts agree with the testifying expert. What other experts believe is hearsay unless experts in the field would reasonably rely upon the opinions of other experts in forming an opinion. It might be self-evident that experts routinely gain information from other experts, but the appellate court nevertheless required the foundational question to be asked and answered.
Nor did it matter that the survey answers were not admitted into evidence. If Dr. Lewis based her opinion on inadmissible hearsay, the opinion itself was inadmissible unless the hearsay consisted of the kinds of facts or data that experts in her field reasonably rely upon in forming an opinion.
Lessons Learned
It might not have been necessary to offer any testimony about the bite block and throat pack. Dr. Lewis was apparently confident that all dentists in all states have a duty to assure that a surgical bur is correctly attached to a drill. Her testimony that a failure to secure the bur caused Franzen’s injury was probably enough to win the case.
Perhaps the additional theories of negligence were advanced from an abundance of caution. In hindsight, it might have been possible to advance those theories by laying a better foundation for Dr. Lewis’ opinion or by using a different expert.
Assuming that Dr. Lewis used a sound survey method (a question the court recognized but did not answer), the court acknowledged that survey data might be a useful way for an expert to confirm the appropriate standard of care. Relying on a consensus of opinion might be better evidence than relying on a single doctor’s opinion. To render an admissible opinion, however, Dr. Lewis needed to establish that she relied on survey data that other dental experts would reasonably rely upon to form a standard of care opinion.
Franzen might have prevailed at the trial and made the victory bulletproof on appeal by laying an appropriate foundation for the expert testimony. Whether experts in a standard of care reasonably rely on their own survey data, however, is unclear. As an alternative, since Dr. Lewis’ concern was that the California standard of care might not have been a national standard of care, Franzen might have been better served by an expert from Iowa by a nonlocal expert who could testify from personal knowledge that the nationwide standard of care is to use a bite block and a throat pack during a tooth extraction.
