IN OUR April, June and July columns in The New York Law Journal,[1]� we reported about a seemingly reinvigorated application of the hearsay rule dooming certain kinds of expert testimony to exclusion. The renewed focus on what experts can and cannot testify about is amply reflected in recent Appellate Division, Second Department, decisions such as Wagman v. Bradshaw,[2]� and Adkins v. Queens Van-Plan, Inc.,[3]� among others. We are not speaking here only of esoteric expert testimony about exotic scientific literature. The hearsay shadow looms large and threatening over medical expert testimony of the bread-and-butter, garden-variety kind.
We advised readers to study these decisions for the impact they (and others) will have on litigation in which attorneys do not adjust to the hearsay threat. We also advised readers to grab hold of New York County Supreme Court Justice Marcy S. Friedman’s two helpful articles in the New York State Bar Association Journal which survey much case law and offer insights on negotiating these turbulent medical hearsay/admissibility waters.[4]� Then, in our July column, we reminded readers that an expert may not properly serve as a mere “conduit” for inadmissible hearsay. The hearsay, even if of a kind accepted in the profession as “reliable” and thereby falling into an exception to the exclusionary rule, nevertheless cannot be the “principal basis” for the expert’s opinion. Rather, the “reliable” hearsay must be “merely a link in the chain of data on which that witness relied.”[5]� The admonition against the expert’s use solely or predominantly as a strategic “conduit” for hearsay evidence applies in federal[6]� as well as state[7]� litigation.
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