GUARDIANSHIP OF DAVID P.
Cum-18-126
MAINE SUPREME JUDICIAL COURT
November 15, 2018
2018 ME 151
Reporter of Decisions. Argued: September 11, 2018. Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶1] David P. appeals from a judgment of the Cumberland County Probate Court (Mazziotti, J.) appointing the Department of Health and Human Services as his limited public guardian pursuant to
I. BACKGROUND
[¶3] In August 2017, the Department filed a petition for a public guardian to be appointed for David. See
[¶4] Roughly a month before trial, the Department hired a clinical psychologist to evaluate David. The psychologist performed a one-hour evaluation of David on January 22, 2018. During his evaluation, the psychologist performed cognitive tests on David that indicated the presence of
not based on my immediate interview with [David], but rather based on the . . . medical history . . . and the condition of deterioration of his health and his hygiene when he‘s on his own. . . . [S]o my conclusion that [David] needed a guardian is because of the . . . repetitive history of really falling into a serious medical crisis as a result of failure to take care of himself.
In conjunction with this testimony, the Department offered the psychologist‘s written report in evidence, and it was admitted over David‘s objection. The Probate Court entered a judgment appointing the Department as David‘s limited public guardian, and David brought this timely appeal.
[¶5] In this appeal, David raises two issues: (1) whether the Probate Court erred by admitting the psychologist‘s written report and (2) whether there was sufficient evidence to support the Probate Court‘s decision. Because we conclude that there was more than sufficient evidence to support the Probate Court‘s appointment of a limited public guardian for David, we discuss only the issues surrounding the Probate Court‘s admission of the psychologist‘s written report.
A. Admissibility of the Psychologist‘s Written Report
[¶6] David asserts that the Probate Court erred by admitting the psychologist‘s written report in violation of the rule against hearsay. See
[¶7] David‘s appeal focuses upon the admission of the psychologist‘s written report and not on the admission of his expert opinion relating to David‘s incapacity. Rule 703 allows the Department to present an expert‘s opinion, but it does not necessarily permit the admission of the underlying facts and data that supports the expert‘s opinion.
Pursuant to Rule 703, [the expert] could testify that he relied on [the other psychologist‘s] report in order to establish the factual foundation necessary for the admissibility of his opinion. Testimony regarding the substance of [the other psychologist‘s] report, however, is not necessary to establish factual foundation under Rule 703 and remains hearsay not within any exception. Rule 703 does not make the substance of [the other psychologist‘s] report admissible and, therefore, admitting [the expert‘s] testimony about the substance of the report was error.
[¶9] Here, the psychologist testified to his opinion without objection, but David objected to the admission of the psychologist‘s written report. The
[¶10] In support of its position on appeal, the Department relies on In re Soriah B. for the proposition that the psychologist‘s written report could be admitted as an expression of his expert opinion. The Department‘s reliance on this case is misplaced, as was its interpretation of Rule 703 in In re Soriah B.:
The Department incorrectly reads [Rule 703] to render an expert‘s entire written report admissible, as long as the expert testifies. The Rule does not, however, authorize a fact-finder to consider hearsay communications contained in an expert‘s report
for their truth. The Rule simply allows the admission of an expert opinion, even when that opinion is based on information that would be considered hearsay in an adjudicatory proceeding. The Rule does not render admissible the hearsay that formed the basis for the opinion.
2010 ME 130, ¶ 19, 8 A.3d 1256 (citations omitted). In In re Soriah B., we upheld the trial court‘s admission of a written psychological report because the court explicitly indicated that it would not consider any hearsay contained within the report and that it would rely only on the report as an expression of the expert‘s opinion. Id. ¶¶ 21-22 (“Because the court admitted the psychological evaluation report and the discharge summary as expressions of the testifying experts’ opinions, subject to the mother‘s objections to the consideration of any hearsay information for its truth, the court did not err in applying Rule 703 . . . .“). Unlike in In re Soriah B., in this case, there was no indication that the Probate Court would not consider any hearsay contained in the psychologist‘s written report. To the contrary, the Probate Court seemed to indicate that it believed the written report was not hearsay at all because it was the psychologist‘s own report.
[¶11] Put succinctly, Rule 703 permits an expert‘s own opinion to be based on inadmissible facts and data, but it does not make those facts and data themselves admissible. See In re Soriah B., 2010 ME 130, ¶¶ 19-21, 8 A.3d 1256;
B. Harmless Error
[¶12] “A trial court ruling, even if in error, will not result in vacating the judgment if the error was ‘harmless‘—that is, if the error did not result in substantial injustice or affect substantial rights.” In re Evelyn A., 2017 ME 182, ¶ 39, 169 A.3d 914. In this case, the admission of the psychologist‘s entire report was not critical to his role as a witness. The psychologist‘s testimony echoed the opinions and findings in his report, making the report itself duplicative evidence. See Henriksen, 622 A.2d at 1144; see also In re Elijah R., 620 A.2d 282, 285-86 (Me. 1993) (holding that a trial court erred by admitting inadmissible hearsay evidence, but the error was harmless because the inadmissible evidence was duplicative of other sources in the record). Furthermore, there was additional evidence in the record, outside of the inadmissible hearsay evidence in the psychologist‘s report, that supported the
[¶13] In conclusion, the Probate Court erred by admitting the psychologist‘s report in its entirety; however, the evidence was duplicative of other record evidence, and therefore the error was harmless and does not require vacating the underlying judgment.
The entry is:
Judgment affirmed.
James S. Hewes, Esq. (orally), South Portland, for appellant David P.
Janet T. Mills, Attorney General, and Cody M.P. Hopkins, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services
Cumberland County Probate Court docket number 2017-1182
FOR CLERK REFERENCE ONLY