Borden v. Brady

— Appeal from a judgment of the Supreme Court in favor of plaintiff, entered January 20,1981 in Broome County, upon a verdict rendered at Trial Term (Smyk, J.). This personal injury action arises out of a 1977 motor vehicle accident which occurred in the Village of Johnson City. Plaintiff, who was a passenger in a parked bus which was struck by an automobile driven by defendant, allegedly suffered neck and back injuries. Defendant conceded liability; trial was had only on the issue of damages. The jury returned a verdict in plaintiff’s favor in the amount of $87,500. In our view, a reversal is required because of error committed in the reception of medical evidence at trial. Plaintiff’s treating orthopedic surgeon was called as a witness on her behalf. During his direct examination, he testified that he had referred plaintiff to a neurologist for evaluation and had used the neurologist’s report in making his final medical prognosis. Based upon that testimony, Trial Term not only permitted plaintiff’s expert to express an opinion that plaintiff’s condition was permanent, but also received the neurologist’s report into evidence and allowed it to be read to the jury. We do not quarrel with the general proposition that the strict rule of People v Keough (276 NY 141) that expert testimony must be based on material in evidence has largely been abandoned, and that such testimony is not rendered inadmissible because it is partly based upon the hearsay reports of others, provided that such data are of the type reasonably relied upon by 984 experts in the field in forming opinions or inferences upon the subject (People v Sugden, 35 NY2d 453, 460-461; People v Stone, 35 NY2d 69, 75-76; cf. Proposed Code of Evidence for the State of New York, § 703). However, in the instant case, the use of the medical data permitted by the trial court went substantially beyond the foregoing development in the rules of evidence concerning the admissibility of expert opinions. The report constituted an expression of opinion on the crucial issue of the permanency of plaintiff’s injuries and formed the principal basis for the expert witness’ opinion on the same issue, not merely a link in the chain of data upon which that witness relied (cf. People v Stone, 35 NY2d 69, 76, supra; People v Sugden, 35 NY2d 453, 460-461, supra). Moreover, plaintiff’s expert not only was permitted to identify the report upon which he relied and to explain its significance in forming his opinion (People v Sugden, supra, pp 460-461; People v Stone, supra, p 76); the report itself was admitted into evidence and read to the jury. The modification of the strict Keough rule under discussion was not intended to carve out such a new exception to the hearsay rule. For the foregoing reasons, a reversal for a new trial on the issue of damages is required. Judgment reversed, on the law, with costs, and matter remitted for a new trial solely on the issue of damages. Sweeney, J. P., Kane, Casey and Levine, JJ., concur.