Herzfeld & Rubin, P.C.- Publications

Products Liability *Enforcing Judgments: Improper 'Conduit Hearsay'* By Michael Hoenig - New York Law Journal - September 11, 2006	Print article

In this column, we report on two separate subjects raised in recent decisions. The first involves so-called "conduit hearsay" in which an expert is used to get otherwise inadmissible, out-of-court material to the jury. This discussion builds upon the content of our March column.

The second part of this article focuses on how litigants can expedite enforcement of their judgments in other states. However, for reasons of lack of subject matter jurisdiction, they cannot take a state court judgment and file it for enforcement in a federal court located elsewhere.

'Conduit Hearsay'

Our March column, "'Conduit Hearsay': A Minefield for Lawyers,"¹ discussed the perils experienced counsel may encounter when they try to use expert testimony as a "conduit" to get inadmissible hearsay evidence to the jury. Under appropriate circumstances experts can use hearsay in New York courts but important boundaries are imposed. The hearsay must be professionally reliable; it ought not be the "principal basis" for the expert's opinion but, rather, merely a "link in the chain" of data on which the expert relied. The expert is not to become a mere funnel or conduit for the admission of what otherwise would be excluded.²

In People v. Goldstein,³ New York's highest court actually used the term "conduit for hearsay," when it suggested there must be some limits on the right of a proponent of an expert's opinion to put before the fact-finder all the information, not otherwise admissible, on which the opinion is based. But exactly where the line should be drawn was not spelled out. Our March article touched upon some of the uncertainties.

Now, virtually hot off the press, the Appellate Division, Third Department, has issued its Aug. 31 decision in People v. Wlasiuk,⁴ adding to emergent "conduit hearsay" precedents. The case involved an ostensible one-car accident in which the vehicle was found submerged in a lake. The defendant reported that his wife had been driving, swerved to avoid a deer and plunged the vehicle into the lake. However, investigators suspected that the husband had staged the accident after suffocating the victim at home.

Defendant husband was indicted, convicted and sentenced for second-degree murder. On appeal, the Third Department reviewed "the cumulative effect of a litany of errors" which, in the court's view, deprived defendant of a fair trial. Here we focus solely on the "conduit hearsay" issue. The hearsay in question was a so-called "STAR report," a report prepared by the Michigan State Police, which concerned a motor vehicle accident study that the department had conducted in 1991. The study involved 31 tests on some 20 passenger vehicles and a school bus and documented the submersion characteristics of the vehicles. The report contained the Michigan police department findings on the topics of escape/rescue and accident reconstruction.

Report Emphasized

At the trial, a deputy sheriff, who had previously undergone four weeks of training in advanced accident reconstruction but never personally investigated an underwater accident, testified as to his investigation and depicted the crime scene via trial exhibits. The witness also testified as to the findings of the STAR report and his own opinion that defendant's version of events was inconsistent with what the STAR report indicated would happen in a submersion accident.

Later during the deputy sheriff's testimony, a half-hour videotape prepared in conjunction with the STAR report was admitted into evidence and played for the jury. The trial court instructed the jury at that time that they were being allowed to watch the tape "solely for the basis of understanding that this tape was one of the bases used [by the witness] in making his report." The court cautioned, however: "This tape should not be taken by you as any evidence in chief as to any point in this particular case. Simply treat it as background information that [the witness] used in his investigation to make his report."⁵

The Third Department held that receipt of the hearsay under the circumstances here was reversible error. The court first noted guiding principles. A prerequisite to admission of such out-of-court material is a showing that it is reliable as a basis for expert testimony in the given field. Then, however reliable it is shown to be, it may not be the "principal basis" for an opinion on the ultimate issue in the case. It may only form a link in the chain of data which led the expert to his or her opinion. Here the court found the officer's testimony problematic. There was no testimony establishing a proper foundation for admission of the STAR report as a basis for the expert's opinion. There was no indication in the record that the report is of a kind reasonably relied on by experts in any given field or that the information and methodology depicted in the report is reliable

Of greater significance, however, was that the STAR report "clearly formed the principal basis for [the officer's] opinion." The witness repeatedly testified that the accused's version of the accident was "inconsistent with" the STAR report. The intimation was that the report was the definitive authority on submerged vehicle accidents. Instead of testifying that the STAR report-plus the facts adduced at trial and his own experience as an accident reconstructionist-formed the basis of his opinion, the deputy sheriff "essentially served as conduit for the testimony of the report's authors . . . ." He dictated the report's contents and then offered his opinion that, to the extent that defendant's story was contrary to the report, it was an impossibility. "In our view," said the court, "such testimony exceeded the bounds of permissible opinion testimony."⁶

As discussed in our March column, much of expert testimony these days boils down to experts giving opinions on ultimate questions based on snippets or excerpts from this hearsay report or that article written perhaps years ago by persons unknown to the court or jury, or even to the expert witness who relies on the out-of-court material. We referred to this phenomenon as "trial by literature," a trend that threatens to make lifeless, unsubstantiated, unreliable hearsay materials the real witness and the live expert little more than an attractive or articulate literature funnel. The gatekeeping quest for reliable expert testimony needs to embrace the painstaking, daunting task of examining the reliability of the underlying hearsay materials as well as the expert's relationship to it. Scrutiny for conduit hearsay can be a material factor in that quest.

Registration of Judgments

Sometimes a litigant finds itself the holder of a judgment issued by a court in State A but needs to have the judgment enforced in State B. For example, a defendant may have defaulted in the State A litigation but has assets in State B. Or, perhaps, another party located in State B has to make good on the judgment but balks. Or, there may have been an arbitration in State A and the arbitral award has now been confirmed by the court in State A and a corresponding judgment has been entered, yet a defendant in State B wishes to challenge the judgment sought to be enforced in State B, perhaps on the ground that some tainting flaw occurred during the arbitration proceeding.

Does the owner of the State A judgment have to do something in State B to actually make it a State B judgment? Or does it remain a State A judgment? What if one wants to take a State A judgment and enforce it, instead, in a federal court in State B? Does that work? The Full Faith and Credit Clause of the U.S. Constitution (Article IV, §1) says that full faith and credit "shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The federal codification of that provision is found at 28 USC §1738.⁷

A recent decision, Euro-American Coal Trading v. James Taylor Mining,⁸ reviews one litigant's attempt to take a New York judgment and file a complaint in a federal district court located in Kentucky to enforce the state judgment. The district court found, however, that a federal court does not have subject matter jurisdiction to entertain such an enforcement action. It therefore dismissed the complaint sua sponte. In explaining why the federal court could not accept plaintiff's attempt to "mix and match" the state court judgment with federal jurisdiction, the Euro-American court clarified how things should work in a streamlined manner.

First, a party with a valid, entered judgment from State A would be needlessly relying on the Constitutional Full Faith and Credit Clause to enforce its judgment. A party seeking to enforce the foreign judgment, in either federal or state court, "is no longer required to file a new lawsuit." In the federal system, Congress' enactment of 28 USC §1963 permits a party to "register" certain federal judgments in other federal districts where they may be enforced.⁹

The effect of the federal registration procedure "is the equivalent of" an entirely new judgment which earlier had been obtained by filing an independent action on the original judgment. Likewise, since many states have adopted a version of the Uniform Enforcement of Judgment Act, the same result can be achieved expeditiously in many state courts. Prior to enactment of these "registration" procedures, the party had to file a separate civil action in the new jurisdiction and request that "full faith and credit" be given to the State A judgment in order to enforce it in State B.

Streamlined Procedure

While a party can still incur the expense of such a second lawsuit, the streamlined registration procedures set out by statute make this unnecessary and achieve the same result. Thus, once a federal judgment has been registered, it will be enforced according to enforcement mechanisms of Federal Rule of Civil Procedure 69 and the laws of the state where the federal district court sits. In the Euro-American case, the New York judgment was sought to be enforced in Kentucky. Plaintiff properly should have registered its judgment pursuant to Kentucky's version of the Uniform Enforcement of Foreign Judgments Act.

The Kentucky statute defines a foreign judgment broadly. Thus, once an authenticated version of the foreign judgment is filed in the office of a court clerk, or is "registered," the "clerk shall treat the foreign judgment in the same manner as a judgment of any court of this state [Kentucky]. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a court of this state and may be enforced or satisfied in like manner."¹⁰ Accordingly, the plaintiff whose federal complaint was dismissed can and should utilize the available state procedures to enforce its New York judgment within Kentucky's borders.

The federal court could not register and enforce the state judgment under 28 USC §1963 because of the jurisdictional limitations of the federal statute. The language, in effect, prohibits federal courts from registering state court judgments. Thus, the statute's enumeration of the courts from which judgments could be registered does not include state courts. A maxim of statutory construction ("expressio unius est exclusio alterius;" "to include one is to exclude the other") meant that Congress intended state courts to be excluded. Thus, state court judgments simply cannot be registered in the federal district courts, according to Euro-American and a few other decisions.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:
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[1]. New York Law Journal, March 13, 2006, p. 3.
[2]. Hornbrook v. Peak Resorts, Inc., 194 Misc. 2d 273 (Sup. Ct. Tompkins Co. 2002).
[3]. 6 NY 3d 119 (2005).
[4]. No. 14652 (3d Dept. Aug. 31, 2006) (Slip Opinion), published in NYLJ, Sept. 6, 2006, p. 22.
[5]. People v. Wlasiuk, Slip Opinion, at 8; NYLJ, Sept. 6, 2006, at p. 22.
[6]. Id., Slip Opinion, at 9; NYLJ, Sept. 6, 2006, at p. 22.
[7]. "Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken."
[8]. 431 FSupp2d 705 (ED Ky. 2006).
[9]. Id. at 707-08.
[10]. Id. at 709 (quoting statute).