Tuesday, December 30, 2008
Confessions Of A Medical Examiner: Wrongful Death Plaintiffs' Lawsuit May Be Hurt If Experts Relied Upon Hearsay In Deciding Cause Of Death
A wrongful death lawsuit set for trial in April could lead to an interesting evidentiary ruling, which could make it more difficult for the plaintiffs to prove their case.
That lawsuit was brought by the family of a Texas elementary school teacher, Kari Baker, who died mysteriously in 2006. Baker’s death initially was ruled a suicide by sleeping pills, and she was buried without an autopsy or further investigation. Her parents, however, pushed investigators to look into their daughter’s death, as they became convinced that their son-in-law, Central Texas Baptist minister Matt Baker, had killed her. According to the parents, Matt killed Kari and tried to make her death appear to be a suicide.
And their beliefs were bolstered when Kari's body was exhumed and the investigation was reopened, with Justice of the Peace Billy Martin changing his cause-of-death ruling to "undetermined." The parents thus sued Matt for wrongful death, and while the trial won't start until April, Matt's attorney, Richard L. Ellison, has already said that he "intends to prove that expert witnesses called by the plaintiffs are biased and that their testimony will be based on hearsay."
And while it is difficult for me to make any conclusions without knowing more details, I can say that if the plaintiffs' experts will be testifying regarding cause of death, and if they are relying upon hearsay in forming their conclusions, Ellison might have a valid argument. Texas Rule of Evidence 703 states that:
"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed 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."
So, the question becomes whether experts in the field of determining the cause of death (such as coroners and medical examiners) reasonably rely upon hearsay in forming their conclusions. And my brief review of the case law reveals that they do not. In this context, many courts have come to the same conclusion as the Supreme Court of Florida in Linn v. Fossum, 946 So.2d 1032, 1037 (Fla. 2006), which found that medical examiners reasonably rely upon "objective evidence" such as autopsy reports, reports by a forensic experts, depositions, photographs, and dental records, in forming expert conclusions. Conversely, the Florida Supremes found that medical examiners cannot rely upon hearsay statements, which "are neither recorded nor verifiable objective evidence."
I think that a Texas court would likely reach a similar conclusion. So, if the plaintiffs' experts are relying upon hearsay, they likely will not be allowed to testify; however, if they are relying upon "objective evidence," they likely will be allowed to testify.