Dr. Martin TREPEL, Plaintiff-Appellant-Cross-Appellee, v. ROADWAY EXPRESS, INC. Defendant-Appellee/Cross-Appellant

SUHRHEINRICH, Circuit Ju.dge, concurring in part and dissenting in part.

As the majority notes, we review the district court’s evidentiary determinations, including those involving expert testimony, for an abuse of discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 141 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997); Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1218 (6th Cir.1987).

I write separately to respectfully dissent from Part III.B. of the majority’s opinion because the district court’s evidentiary ruling, which excluded an out-of-court conversation concerning the value of Trepel’s wood carving, was not clearly erroneous.

I.

Trepel argues that the district court erred in excluding a variety of materials that were relied upon by his experts. Tre-pel’s experts, Kahan and Chisolm, relied upon secondary information about the Din-hofer Baga serpent in making their appraisals. In particular, Trepel’s experts relied, in part, on a conversation Trepel had with Dinhofer. In that conversation, Dinhofer told Trepel that she had been offered $2 million and $2.5 million for her Baga woodcarving, but that she would be willing to sell the carving for $3 million if she were offered that much.

I agree with the majority that this conversation was independently inadmissible under the Federal Rules of Evidence because it is hearsay. However, I disagree with the majority that the rules of evidence allow the introduction of this conversation as the basis for an expert opinion.

Rule 703 of the Federal Rules of Evidence states:

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.

Fed.R.Evid. 703 (emphasis added)

The Rule was intended to “bring judicial practice into line with the practice of the experts themselves when not in court” by broadening the permissible bases for expert opinions that had previously been limited at common law. Fed.R.Evid. 703, Advisory Committee Notes.

However, the rule does not give an expert free reign to base an opinion on any evidence, including inherently unreliable or untrustworthy evidence. Rather, the rule limits the bases of expert opinions to that which is “reasonably relied upon by experts.” Fed.R.Evid. 703. The rule was not meant to allow unreliable and untrustworthy evidence to be introduced to the court through the use of an expert witness. Instead, the Advisory Committee Notes caution that Rule 703 limits the bases of *720 expert opinions to otherwise inadmissible evidence that is also reliable in order to prevent Rule 703 from creating a “backdoor” exception to the other rules of exclusion:

Thus, a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X-rays ... The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed.and subject to cross-examination, ought to suffice for judicial purposes ... If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data “be of a type reasonably relied upon by experts in the particular field.” The language would not warrant admitting in evidence the opinion of an “accidentolol-ogist” as to the point of impact in an automobile collision based on statements of bystanders since this requirement is not satisfied.

Fed.R.Evid. 703, Advisory Committee Notes; see also 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6272 (1997) (“[B]e-cause Rule 703 permits expert testimony to be based on inadmissible evidence, the provision necessarily must concern itself with the reliability of that testimony.... An expert opinion based on inadmissable evidence such as hearsay can pose the same sorts of reliability problems as the inadmissible evidence on which it is based.”).

The cases cited by the majority merely stand for the general rule that an expert may base an opinion on otherwise inadmissible evidence. They do not stand for the proposition that such inadmissible evidence need not be reliable since each of the cited cases involved expert opinions that were based on reliable information. See Enge-bretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728-29 (6th Cir.1994) (court allowed experts’ testimony based on their investigations of the airline’s emergency landing, which included wiring diagrams, reports, tapes, pilots’ statements, and various tests conducted on the airplane, but the court also noted that “Rules 702 and 703 carve out a narrow exception to the rule against the admission of hearsay.”) (emphasis added); Kingsley Associates, Inc. v. Del-Met, Inc., 918 F.2d 1277, 1286-87 (6th Cir.1990) (expert testimony based on hearsay, which included the expert’s research into the automobile industry and confidential documents from General Motors, was admissible); Mannino v. International Mfg. Co., 650 F.2d 846, 852 (6th Cir.1981) (expert testimony based on the expert’s experience with bio-mechanics, various studies, and articles in that field was admissible since those are proper bases for expert opinions under Rule 703 ). These cases do not remove from the court its obligation to ensure that the basis of an expert’s opinion is both reliable and reasonable since none of the cases cited by the majority involved the type of unreliable double, and, even, triple hearsay, involved in the case at bar.

As the majority correctly points out, experts frequently rely on comparable sales evidence when appraising the value of property. The majority concedes, however, that the conversation between Trepel and Dinhofer was not a comparable sale, but a mere offer. Since there is no comparable sale evidence, we must look to the' evidence that was relied upon and decide whether it is trustworthy enough to constitute the type of evidence that an expert could reasonably rely upon.

In this ease, Trepel seeks to admit evidence of an out-of-court conversation that he had with Dinhofer to establish the amount of his damages. Not only was the conversation inadmissible hearsay, but the conversation is inherently untrustworthy as it directly serves Trepel’s financial self-interest in this case. The conversation *721 involved hearsay within hearsay that was speculative in nature. There is no way' for the court to determine whether, or how, or under what circumstances the conversation took place, or to verify the substance of the conversation and its accuracy. It is also impossible to determine whether the party who made the $2 million offer would have followed through with the sale, or whether the offer was made in the first place, or how it was made.

To allow this conversation to be used as the basis for an expert opinion would be akin to giving Trepel the ability to name his price in damages. Unlike the cases cited by the majority above and the example of a physician’s testimony discussed by the Advisory Committee Notes to Rule 703, there is no indicia of reliability or trustworthiness to make Trepel’s out-of-court and self-serving conversation a reasonable basis for an expert opinion.

Moreover, “the Rules of Evidence ... assign to the trial judge the task of ensuring that an expert’s .testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 , -, 119 S.Ct 1167, 1174-75 (1999) (applying Daubert gatekeeping role of trial judges to all expert testimony). Although it is true that an expert may base an opinion on otherwise inadmissible evidence, the courts are constantly looking behind an expert’s opinion to determine if the basis for that opinion is reliable and trustworthy. See, e.g., Dallas & Mavis Forwarding Co., Inc., v. Stegall, 659 F.2d 721, 722 (6th Cir.1981) (“We agree with the district court that under [Rule 703] the opinion of the trooper was not admissible, because it was based on no physical evidence ... and was derived primarily from the story of a biased eyewitness. This is the sort of hearsay testimony whose admission the Rule. [703] was meant to foreclose.”); Marcel v. Placid Oil Co., 11 F.3d 563 , 567 n. 6 (5th Cir.1994) (“Experts generally may rely on hearsay, however, if the data is reliable and qualified under Rule 703”) (emphasis added) (citation omitted); Gong v. Hirsch, 913 F.2d 1269, 1273 (7th Cir.1990) (“Given the obvious concern over the trustworthiness of a statement made under circumstances such as these, we cannot say that the district court abused its discretion in preventing the plaintiffs medical expert from reading from [the] letter or otherwise stating that his opinion was based on the letter” when the letter was presumably for the purpose of getting disability benefits for the decedent in the malpractice lawsuit, who was also the likely source of the letter’s information); Ricciardi v. Children’s Hosp. Med. Center, 811 F.2d 18, 24-25 (1st Cir.1987) (holding the district court’s decision not to allow an expert -to rely on a note found in a hospital record was within the court’s discretion because the court found that the note was too unreliable to be used as the basis for an expert opinion); Soden v. Freightliner Corp., 714 F.2d 498, 503-06 (5th Cir.1983) (court did not abuse its discretion when it excluded an expert’s opinion that was based on unreliable accident statistics); In re “Agent Orange” Product Liab. Litig., 611 F.Supp. 1223, 1245 (D.C.N.Y.1985) (“Rule 703 permits experts to rely upon hearsay.... Nevertheless, the court may not abdicate its independent responsibilities to decide if the bases meet minimum standards of reliability as a condition of admissibility. If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.”) (citations omitted).

By ensuring that an expert’s opinion is based on rehable information, the courts prevent the abuse of expert testimony by those who seek to use experts as a pretense for the admission of otherwise inadmissible and unreliable hearsay. See 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6273 (1997) (“... Rule 703 does not *722 authorize admitting hearsay on the pretense that it is the basis for expert opinion when, in fact, the expert adds nothing to the out-of-court statements other than transmitting them to the jury. In such a case, Rule 703 is simply inapplicable and the usual rules regulating the admissibility of evidence control.”); see also Law v. National Collegiate Athletic Association, 185 F.R.D. 324, 341 (D.Kan.1999) (“The NCAA basically presented [the expert] as a channeler, seeking to present non-expert, otherwise inadmissible hearsay through the mouth of an economist.”).

Given the inherent unreliability and un-trustworthiness of Trepel’s out-of-court conversation with Dinhofer, I cannot say that the district court was clearly erroneous when it excluded that conversation from the experts’ reports and testimony.

II.

For these reasons, I respectfully dissent from Part III.B. of the majority’s opinion.