THE COURTS
Title 225--RULES OF EVIDENCE
[225 PA. CODE ART. VII]
Order Adopting Revision of Comment to Pa.R.E. 703; No. 316 Supreme Court Rules; Doc. No. 1
[33 Pa.B. 4784]
Order Per Curiam:
Now, this 11th day of September 2003, upon the recommendation of the Committee on Rules of Evidence, this proposal having been published before adoption at 33 Pa.B. 197 (January 11, 2003) and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the Comment to Pa.R.E. 703 is hereby revised in the following form.
This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective September 30, 2003.
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule 703. Bases of Opinion Testimony by Experts.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Comment 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 evidence would be otherwise inadmissible, the trial judge, upon request shall or on his own initiative may instruct the jury to consider the facts and data only to explain the basis for the expert's opinion, and not as substantive evidence.
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; September 11, 2003 Comment revised effective September 30, 2003.
FINAL REPORT
Revision of Comment to Pa.R.E. 703On September 11, 2003, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court approved the changes to the Comment to Pa.R.E. 703 effective September 15, 2003. The Comment Revision points out that Pa.R.E. 703 is no longer identical to F.R.E. 703. F.R.E. 703 was amended on December 1, 2000 to require that the probative value of the data relied upon by the expert substantially outweigh the prejudicial effect in order for the data to be disclosed to the jury. Pa.R.E. 703 is silent on a balancing test which is already covered by Pa.R.E. 403.
At the same time, the Comment Revision points out a significant change in the Pennsylvania Rules of Civil Procedure relative to expert testimony based on novel scientific evidence namely Pa.R.C.P. 207.1.
To update case authority, the entire Comment has been rewritten.
[Pa.B. Doc. No. 03-1891. Filed for public inspection September 26, 2003, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
