## Facts

- Bonnie J. Hutchinson, a New York resident, was treated in Vermont by Dr. Stephen Groskin for a changing abdominal mole.
- In April 1985, Groskin examined the mole and advised Hutchinson to monitor it and return if it grew.
- In November 1985, Hutchinson returned reporting growth and bleeding; Groskin performed a punch biopsy and sent the specimen to pathology.
- About two weeks later, Hutchinson called for results; Groskin, having only a phone conversation with the pathologist, told her there was a “ninety-five percent chance” things looked okay.
- Groskin later received the written pathology report diagnosing “superficial spreading melanoma” but did not inform Hutchinson.
- In January 1986, Hutchinson sought care from another physician who reviewed the pathology report and informed her she had cancer; a wide excision followed shortly thereafter.
- In September 1987, cancer was found in an inguinal lymph node; Hutchinson underwent lymph node dissection and later had ongoing pain and swelling.
- Hutchinson sued in federal court alleging negligence for failure to timely inform and treat the melanoma, claiming the delay allowed progression and caused additional injury.
- At jury trial, the defense expert, Dr. David Bronson, was examined using three letters from other physicians who were not disclosed as expert witnesses; counsel had Bronson identify the letters’ authors, relay their conclusions, and state agreement with their opinions.
- The jury returned a defense verdict; Hutchinson appealed, challenging the use of the letters during expert examination.

## Issues

1. Whether the trial court erred by permitting examination of a testifying expert using letters from non-testifying, undisclosed physicians in a manner that conveyed their opinions to the jury as substantive evidence.
2. Whether this use of the letters improperly bolstered the defense expert and denied the plaintiff a fair opportunity to challenge the letter-writers through disclosure and cross-examination.
3. Whether any evidentiary error was harmless given the central role of expert medical testimony on causation and prognosis.

## Decision

- The Second Circuit reversed the judgment for the defendant and remanded for a new trial.
- The court held the letters were used to place hearsay medical opinions of non-testifying physicians before the jury and to support the defense expert by showing purported agreement from other doctors.
- The court concluded Rule 703 did not justify presenting the letters’ contents to the jury for their truth.
- The court found the error prejudicial because causation and prognosis were contested and the letters could have influenced the verdict.

## Legal Principles

- Federal Rule of Evidence 703 permits an expert to rely on otherwise inadmissible material in forming an opinion, but it does not automatically allow the proponent to present that material to the jury as proof of the matters asserted.
- A party may not use a testifying expert as a conduit to introduce hearsay opinions of non-testifying physicians by having the expert summarize and adopt their conclusions.
- Introducing opinions from undisclosed experts through letters or similar documents can circumvent disclosure obligations and impair the opponent’s ability to test reliability through deposition and cross-examination.
- When improper bolstering and hearsay relate to key expert disputes, the resulting evidentiary error is not harmless and warrants a new trial.

## Conclusion

The Second Circuit ordered a new trial because the defense’s use of non-testifying, undisclosed physicians’ letters during expert examination conveyed hearsay opinions to the jury and unfairly reinforced the defense expert on central medical issues.


Hutchinson v. Groskin, 927 F.2d 722 (2d Cir. 1991)