[225 PA. CODE ART. VII] Bases of Opinion Testimony by Experts [33 Pa.B. 198] The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment to Rule of Evidence 703. This Comment revision is being proposed to alert the bench and bar that Pa.R.E. 703 no longer is identical to F.R.E. 703.
This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Report.
The text of the proposed Comment changes precedes the Report. Additions are shown in bold, and deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel,
Richard L. Kearns
Staff Counsel
Supreme Court of Pennsylvania
Committee on Rules of Evidence
5035 Ritter Road Suite 800
Mechanicsburg, PA 17055no later than February 20, 2003.
By the Committee on Rules of Evidence
CHARLES B. GIBBONS,
ChairAnnex A TITLE 225. RULES OF EVIDENCE ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule 703. Bases of Opinion Testimony by Experts.
* * * * * Comment [Pa.R.E. 703 is identical to F.R.E. 703 and is consistent with Pennsylvania law.
Historically, Pennsylvania courts limited the facts or data upon which an expert could base an opinion to those obtained from firsthand knowledge or from the trial record. See Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). Beginning in 1971 with Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), Pennsylvania courts have endorsed and expanded the principle that experts may base their opinions on evidence which is otherwise inadmissible if the evidence is of a type reasonably relied upon by experts in the particular field. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Bowser, 425 Pa. Super. 24, 624 A.2d 125 (1993); In Re Glosser Bros., Inc., 382 Pa. Super. 177, 555 A.2d 129 (1989); Bolus v. United Penn Bank, 363 Pa. Super. 247, 525 A.2d 1215 (1987). If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data be ''of a type reasonably relied upon by experts in the particular field.'' See F.R.E. 702 advisory committee notes. Whether evidence is reasonably relied upon by the expert is a preliminary question for determination by the trial court under Pa.R.E. 104.
When an expert testifies about the underlying facts and data that support the expert's opinion and the testimony would be otherwise inadmissible, the trial court should instruct the jury to consider the testimony only to explain the basis for the expert's opinion, and not as substantive evidence. Compare Pa.R.E. 105.
An expert's testimony is inadmissible if the opinion is not the opinion of the expert testifying, but rather a recitation or reaction to an opinion given by an expert who does not testify. See Primavera v. Celotex Corp., 415 Pa. Super. 41, 608 A.2d 515 (1992).]
Pa.R.E. 703 differs from F.R.E. 703 as discussed below. Pa.R.E. 703 is consistent with prior Pennsylvania case law.
F.R.E. 703 was amended on December 1, 2000, to add a balancing test that tilts against disclosure to a jury of otherwise inadmissible facts or data upon which an expert witness bases his or her opinion. In Pennsylvania, however, Pa.R.E. 705 requires an expert witness to testify as to the facts or data upon which the witness's opinion is based, whether or not the facts or data would otherwise be admissible in evidence.
Historically, Pennsylvania courts limited the facts or data upon which an expert could base an opinion to those obtained from firsthand knowledge, or from substantive evidence admitted at trial. See, e.g. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963). In the case of Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), the Pennsylvania Supreme Court adopted a rule that allows a medical expert witness to offer an opinion that is based, in part, on otherwise inadmissible hearsay, if it is of a type that is customarily relied on by the expert in the practice of the expert's profession.
Later case law expanded the evidential ruling in the Thomas case to various non-medical expert witnesses. See, e.g., Steinhauer v. Wilson, 336 Pa. Super. 155, 485 A.2d 477 (1984) (expert on construction costs); Maravich v. Aetna Life & Casualty Co., 350 Pa. Super. 392, 504 A.2d 477 (1986) (fire marshal); Kearns v. DeHaas, 377 Pa. Super. 392, 546 A.2d 1226 (1988) (vocational expert); In re Glosser Bros., 382 Pa. Super. 177, 555 A.2d 129 (1989) (tax accountant); Commonwealth v. Bowser, 425 Pa. Super. 24, 624 A.2d 125 (1993) (accident reconstruction expert).
Pa.R.E. 703 requires that the facts or data upon which an expert witness bases an opinion be ''of a type reasonably relied upon by experts in the particular field . . . .'' Whether the facts or data satisfy this requirement is a preliminary question to be determined by the trial court under Pa.R.E. 104(a). lf an expert witness relies on novel scientific evidence, Pa. R.C.P. No. 207.1 sets forth the procedure for objecting, by pretrial motion, on the ground that the testimony is inadmissible under Pa.R.E. 702, or Pa.R.E. 703, or both.
When an expert testifies about the underlying facts and data that support the expert's opinion and the testimony would be otherwise inadmissible, the trial court should instruct the jury to consider the testimony only to explain the basis for the expert's opinion, and not as substantive evidence. Compare Pa.R.E. 105.
An expert witness cannot be a mere conduit for the opinion of another. Cases hold that it is error for an expert witness to relate the opinion of a non-testifying expert unless the witness has reasonably relied upon it, in part, in forming the witness's own opinion. See, e.g., Foster v. McKeesport Hospital, 260 Pa. Super. 485, 394 A.2d 1031 (1978); Allen v. Kaplan, 439 Pa. Super. 263, 653 A.2d 1249 (1995).
Official Note: Adopted September 11, 1998, effective October 1, 1998; Comment revised ______ , effective ______ .
Committee Explanatory Reports:
Report explaining the proposed revision of the Comment published at 33 Pa.B. 199 (January 11, 2003).
REPORT Proposed Revision of the Comment to Pa.R.E. 703 COMMENT CHANGES CORRESPONDING TO THE RECENT AMENDMENTS TO THE FEDERAL RULES OF EVIDENCE The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment of Pa.R.E. 703. This Comment revision is being proposed to alert the bench and bar that Pa.R.E. 703 is no longer identical to F.R.E. 703.
Since December 1, 2000, when F.R.E. 703 was amended, Pa.R.E. 703 is no longer identical to F.R.E. 703 as currently stated in the Comment. The Committee is proposing the Comment be revised to correct this, and to point out that inadmissible facts and data upon which an expert relies are less likely to be disclosed to the jury under F.R.E. 703 then under Pa.R.E. 703 because the balancing test tilts against disclosure under the federal rule.
The Evidence Committee took this opportunity to call attention to Pa.R.C.P. No. 207.1 which covers procedure for pre-trial objection to expert opinion based on novel scientific evidence.
Case law is updated reflecting the pre-rule cases upon which Pa.R.E. 703 is based. The Comment revision as proposed substantially rewrites the original Comment to Pa.R.E. 703.
[Pa.B. Doc. No. 03-54. Filed for public inspection January 10, 2003, 9:00 a.m.]
