Opinion
2001895
Decided February 9, 2005.
This proceeding, commenced by Application filed March 2, 2004, seeks an Order of this Court authorizing the involuntary retention of Respondent Daniel A by the State of New York Office of Mental Retardation and Developmental Disabilities (OMRDD) at the Sunmount Developmental Center (Sunmount), for a period not to exceed two years, pursuant to Article 15 of the Mental Hygiene Law (MHL). The application constitutes the fourth Article 15 retention sought of Respondent: an initial 60-day Order was issued on January 4, 2002 by the Franklin County Court, and Orders of retention having durations of one year (issued April 8, 2002) and two years (issued May 2, 2003) were subsequently issued by that Court.
The matter came on for hearing on November 15, 2004, and the Court heard testimony from a single witness, Dr. John Niederbuhl. In the course of the proceeding the Court entertained and reserved decision on two evidentiary matters which arose at trial, upon offers of Petitioner, and which are central to Petitioner's application for retention: first, whether the Court ought to receive the testimony of Dr. Niederbuhl with respect both to his opinion, and to an out-of-court conversation with an aunt of Respondent's upon which that opinion was largely based, on the crucial issue of "age of onset" (that is, the issue of whether the alleged developmental disability of Respondent had its origins prior to Respondent's turning 22); and, second, whether the doctrine of issue preclusion ought to be applied in the instant proceeding to allow the Court to make the requisite finding regarding age of onset, based upon the findings thereon necessarily made in the prior retention proceedings. Both offers of Petitioner have been objected to by Respondent, and written submissions have been tendered by each on these issues.
It is clear, as an initial matter, that Sunmount must prove, by clear and convincing proof, the age of onset of the alleged disability, and that Sunmount's failure of proof in this respect would defeat their retention application. Under the circumstances of this case, the issues raised here are indeed determinive of the disposition of the matter ultimately. We turn first to the question of what portion, if any, of the objected-to testimony of Dr. Niederbuhl should be received. The question turns ultimately upon the applicability of the "professional reliability" exception to the hearsay rule.
Dr. Niederbuhl's qualifications as an expert in the field of psychology (except as to his capacity to give expert testimony on the issue of dangerousness) were quite properly stipulated to at the outset of the hearing. During the course of his testimony, Dr. Niederbuhl was asked to give his opinion on the question of whether Respondent suffers from a developmental disability which had its onset prior to age 22, and to give the basis for that opinion. Dr. Niederbuhl testified that the institutional records he reviewed on the subject were inadequate, in his judgment, owing to the fact that although there were references in those records to the effect that Mr. A had suffered from a childhood case of meningitis and from childhood delays following that infection there was no specific information, nor were there any actual medical records (from a doctor or hospital), to support those references. Dr. Niederbuhl determined, therefore, to investigate the issue himself four years after Mr. A's admission to Sunmount, three months after Mr A's request to Sunmount for a retention hearing, and five days before the originally scheduled hearing date herein by telephoning Respondent's aunt, Lucy Green Twilley, in Rochester, New York, and attempting to determine the factual background of Mr. A's present condition. It is the offer into evidence by Petitioner of the content of the conversation Dr. Niederbuhl had with the aunt, and of the opinion he tendered based in great measure upon that conversation, which are here objected to. Ms. Twilley, herself, was never called as a witness in the proceeding.
The Court does not seek to imply, by its recitation of the timing of Dr. Niederbuhl's calling of Ms. Twilley, that it views his actions or intentions as in any way improper or inappropriate to his professional purposes; on the contrary, Dr. Niederbuhl clearly perceived an issue which deserves careful professional attention, and sought to address it in a manner appropriate to his professional objectives. One might wish he had been involved in the matter several years previously.
Petitioner asserts the admissibility of the objected-to matters on the basis of the two central cases on the subject, People v. Sugden, 35 NY2d 453, and Hambsch v. N.Y.C. Transit Authority, 63 NY2d 723. Hambsch sets forth the general proposition intended to guide trial courts, as follows:
"`It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness'( Cassano v. Hagstrom, 5 NY2d 643, 646; Lopato v. Kinney Rent-A-Car, 73 AD2d 565, 566). In People v. Sugden ( 35 NY2d 453), we recognized two limited exceptions to this rule and held that an expert may rely on out-of-court material if `it is of a kind accepted in the profession as reliable in forming a professional opinion' or if it `comes from a witness subject to full cross-examination on the trial'( id., at pp 460, 461)." 63 NY2d 723 at 725-726.
To state the "professional reliability" exception in general terms is not to answer the specific question presented, however. The state of the law on the subject is substantially nuanced as it bears on the specific objections presented here.
Initially, it must be noted that the conversation of Dr. Niederbuhl with the aunt provided him with essentially the entire factual predicate for his opinion on the age-of-onset issue. He gauged the reliability of the information thus obtained on the basis of its consistency with what he observed; but on the age-of-onset issue itself, the narrative from Ms. Twilley was "the only real source of information I could get." In this context, guidance is provided by the Third Department case of Borden v. Brady, 92 AD2d 983. In that personal injury case, the trial court permitted opinion testimony from plaintiff's treating orthopedist which was based principally upon a hearsay report from a neurologist to whom he had referred plaintiff. In reversing, the Appellate Division explained
"We do not quarrel with the general proposition that the strict rule of People v. Keough ( 276 NY 141) that expert testimony must be based on material in evidence has largely been abandoned, and that such testimony is not rendered inadmissible because it is partly based upon the hearsay reports of others, provided that such data are of the type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject ( People v. Sugden, 35 NY2d 453, 460-461; People v. Stone, 35 NY2d 69, 75-76 cf. Proposed Code of Evidence for the State of New York, § 703). However, in the instant case, the use of the medical data permitted by the trial court went substantially beyond the foregoing development in the rules of evidence concerning the admissibility of expert opinions. The report constituted an expression of opinion on the crucial issue of the permanency of plaintiff's injuries and formed the principal basis for the expert witness' opinion on the same issue, not merely a link in the chain of data upon which that witness relied (cf. People v. Stone, 35 NY2d 69, 76, supra; People v. Sugden, 35 NY2d 453, 460-461, supra)." 92 AD2d 983 at 983-984.
The hearsay material formed the "principle basis" of the opinion rendered, as it did in the instant circumstance, and this fact was crucial to the Court's decision. However, the problems presented in Borden (as here) went even further, as is made clear in Justice Yesawich's concurring opinion:
"Reliability of the material is the touchstone; once reliability is established, the medical expert may testify about it even though it would otherwise be considered inadmissible hearsay . . . If the dependability of the neurosurgeon's report had been established, passages relevant to the orthopedic surgeon's opinion could properly have been brought to the jury's attention. Here, however, no external circumstance guaranteeing its reliability existed . . . Moreover, the report was not secured to enable the treating physician to render treatment, but rather to reinforce his diagnosis in a personal injury suit in which trial was imminent." 92 AD2d 983 at 984.
Justice Yesawich's latter point has been developed further by Justice Marcy S. Friedman:
"A report used only for testimony obviously lacks the guarantees of reliability found in a report actually relied upon for treatment decisions affecting a patient's health. Not surprisingly, therefore, the case law consistently holds that a non-treating expert may not testify based on the report of another physician, where the report is not independently admitted and the other physician is not a witness at trial." (Friedman, Need for a Testifying Physician To Rely on Reports by a Non-Testifying Physician Poses Evidentiary Problems, 73 NY St BJ 9, 28-29 [Nov./Dec. 2001])
The difficulty presented in the instant case is even more acute than the circumstance obtaining in Borden. Not only did the hearsay material here form the "principal basis" for Dr. Niederbuhl's opinion, and not only was it secured to reinforce an opinion in an imminent trial rather than to enable treatment, it also lacks critical indicia of reliability in itself. The out-of-court source, Ms. Twilley, provided information (a medical diagnosis of spinal meningitis) which must be assumed to have been the product of further hearsay: no claim was ever made that Ms. Twilley has any medical expertise or qualifies as an expert herself. The reliability of out-of-court material which would be excluded were its source a medical expert is certainly not enhanced by the fact that the source of the hearsay is not. Furthermore, as brought forth on voir dire of Dr. Niederbuhl, Ms. Twilley was not herself a person wholly disinterested in the outcome of this proceeding: she was frightened or intimidated by both Mr. A and his "friends," and on the basis of her own welfare was arguably concerned that he not be released from care.
The Hambsch Court made clear (and itself cited Justice Yesawich's concurrence in Borden for the proposition) that "[i]n order to qualify for the `professional reliability' exception, there must be evidence establishing the reliability of the out-of-court material." 63 NY2d 723 at 726 (citations omitted). Such evidence of reliability is simply lacking here, and the offered opinion ought not to be received. See also Brown v. County of Albany, 271 AD2d 819.
It is clear, incidentally, that receipt of the substance of the out-of-court material is objectionable in itself, quite apart from the admissibility of the opinion tendered:
"Moreover, plaintiff's expert not only was permitted to identify the report upon which he relied and to explain its significance in forming his opinion People v. Sugden, supra, pp 460-461; People v. Stone, supra, p 76; the report itself was admitted into evidence and read to the jury. The modification of the strict Keough rule under discussion was not intended to carve out such a new exception to the hearsay rule." Borden v. Brady, 92 AD2d 983 at 984.
It is thus the determination of this Court that the testimony of Dr. Niederbuhl, both as to his opinion on the age-of-onset issue, and as to the substance of his conversation with the aunt, may not be received.
Turning to the question of issue preclusion (or collateral estoppel, as it is also referred to by the parties), Petitioner asserts that the principles of that doctrine should be applied in the instant case to obviate the need to relitigate not simply the age-of-onset element but indeed the entire issue of the existence of a developmental disability here. The Court is satisfied that the breadth of this request is excessive, even if it were permissible for the Court to exercise its discretion to apply the doctrine so broadly. Indeed, it is not at all clear that such a broad reach would be permissible, to the extent that Petitioner is asking that a finding once made — that a given Respondent is developmentally disabled (or mentally retarded, in that closely related context) — ought to preclude re-litigation of that issue in all subsequent retention proceedings. Whether developmental disability or mental retardation are "static" conditions or not, to such a degree that the doctrine of issue preclusion could properly be invoked in the first place, is unclear ( compare People v. Cratsley, 86 NY2d 81 with Heller v. Doe, 509 US 312); what is abundantly clear to this Court, however, is the inadvisability of applying the doctrine so broadly in the present context, and thus fixing (in effect forever) the status of individuals such as Respondent in the context of their efforts to gain their release. The rationale expressed by Justice Levine in Leonard HH v. Nixon, 148 AD2d 75, will be examined further below, but at a minimum that case must be read for the proposition that the doctrine of issue preclusion ought not generally to be invoked to resolve litigation involving the mental status of one in Respondent's position. To the extent that "[t]he doctrine of collateral estoppel `is essentially a rule of justice and fairness'" ( Hinchey v. Sellers, 7 NY2d 287, 294, quoting Commissioners of State Ins. Fund v. Low, 3 NY2d 590, 595), and in the light of the guidance of Leonard HH v. Nixon, 148 AD2d 75, this Court will not apply that doctrine so broadly as entirely to preclude relitigation of the current mental status of those such as Respondent, who may seek release from involuntary confinement from time to time (as determined by Article 15), and who endeavor to do so based upon their efforts to improve their behavior and to comply with institutional requisites during intervening periods between release applications. While it may be unclear whether their mental status is static or not, "justice and fairness" seem to the Court to demand that this door not be barred to them.
To hold that the over-arching issue of developmental disability (or retardation) is not a proper subject for issue preclusion is not to answer the narrower question of whether assuming that developmental disability (or retardation) can be proved in a given case the age of its onset must also be relitigated in each successive retention hearing. Respondent concedes the obvious (without conceding the larger point) in stating that "the age of onset prong of `mental retardation' or `developmental disability' is not subject to change over time." (Reply Letter, January 10, 2005, p. 2.) That this one facet of the matter is, indeed, static i.e., that if a given disability arose prior to age 22, this fact is not subject to subsequent change does not in itself answer the question of whether a Court ought to invoke the doctrine of issue preclusion to restrict re-litigation of that issue.
Respondent argues ardently that the statute in question (MHL § 15.33) requires, in effect, relitigation of each element of proof, including age of onset, in each subsequent hearing (arguing that this point ought to be clear to the Court upon review of the history and background of the legislation giving rise to MHL articles 9 and 15), and that "the State's assertion that it should be relieved of this burden in civil commitment proceedings must be addressed to the Legislature ( id.)" While the remedial nature of Articles 9 and 15 is apparent from the context of their enactment, it is by no means evident that anything contained within those Articles themselves (or their history) addresses the narrow issue before the Court of whether, once established by a reviewing court, the static circumstance of when a condition arose must be reproven in each subsequent proceeding. Nothing in the language, the logic, or the history of the statutes seems clearly to answer that point, so as to remove the question from consideration here.
However, to hold that the application of the doctrine of issue preclusion is not statutorily foreclosed here is not to imply that such application is therefore appropriate, in the context of this narrow issue and as presented in the instant case. In this respect, Respondent urges the Court to consider "issues of fairness to the parties, conservation of the resources of the courts and litigants and the societal interests in consistent and accurate results." (Reply Letter, p. 3) Petitioner, for his part, asserts equally ardently the point that the principles of fairness and efficiency ought to point this Court in the opposite direction, citing the recent Court of Appeals language in Bansbach v. Zinn, 1 NY3d 1, for the proposition that Respondent, assuming him to have had a "full and fair opportunity to litigate the issue in the earlier action . . . should not be permitted to try the issue again." Id. at 10.
The analysis of Justice Levine for the Third Department in Leonard HH v. Nixon, 148 AD2d 75, is critical, if not controlling, to this Court's determination of the instant issue. That case involved an application for writ of habeas corpus challenging the Article 9 involuntary confinement of a patient who, having earlier sought and been granted his institutional release following a retention hearing, was re-admitted to the institution on the certificates of two examining physicians, pursuant to MHL 9.27. Upon the habeas hearing, evidence was adduced, over objection on res judicata and collateral estoppel grounds, relative to current mental condition and to history of dangerous behavior, which latter evidence pertained to events pre-dating the earlier retention hearing. Following the habeas hearing, the writ was dismissed. The argument on appeal involved the applicability, in the context of Article 9, of the principles of res judicata and collateral estoppel: since the retention court had denied the facility's petition, the patient argued, it ought to have been barred by a strict application of the principles of res judicata and collateral estoppel from availing itself of the same facts (or at least of facts available at the time of the retention hearing) in the context of the new litigation. The Third Department held that such a strict application of those principles was out of place in this context. Instead, Justice Levine analyzed the underlying principles which the Court held ought to determine the issue:
"We think that the controlling principles in this case involving successive involuntary mental health commitment proceedings are those applied in habeas corpus relitigation. The remedy of habeas corpus comprehensively covers challenges to all forms of custodial confinement, including that of the mentally ill. Moreover, in our view, the compelling legitimate interests of both sides for achieving the correct result on the merits of a dispute over confinement of a mentally ill person and the important competing human values at stake, require the greater flexibility and liberality in addressing relitigation issues that have been employed in habeas corpus cases." Id., at 80 (citations omitted).
Nothing in the analysis, it must be noted, limits its force to the specific context of habeas litigation per se: while he makes reference to the applicability of habeas relief to the context of challenging mental health confinement, Justice Levine's logic argues for the broader application of habeas-specific res judicata principles (including the rules respecting issue preclusion) in the general context of the relitigation of "a dispute over confinement of a mentally ill person," whether such relitigation be achieved by way of habeas corpus, or through any other mechanism (e.g., retention hearings generally). Were this not so, there would be no need for him to spell out the context which presented itself: in explaining why application of those principles was appropriate in the habeas context, it would suffice simply to say that, the case being one generically of a habeas nature, habeas-specific res judicata rules would be applied. Indeed, the appropriateness of the application of the more flexible habeas rules for res judicata analysis, in the mental health context generally, is underlined by his assertion of the "compelling" desirability of "achieving the correct result on the merits," implying the untenablity of the risk of producing an erroneous result which might flow from a too-strict adherence to the more general res judicata principles which might otherwise be thought applicable.
Nor must the logic which Justice Levine employed be restricted to the Article 9 context, to the exclusion of Article 15: cases under Article 9 ("Hospitalization of the mentally ill") typically are held to apply in the context of Article 15 ("Admission of the mentally retarded to schools"), except where the specific context of the mental retardation/mental illness distinction renders the logic of the case inapplicable, a circumstance not present here.
In the context of the relitigation of involuntary mental health commitment proceedings, therefore, habeas analysis ought to be employed: generally, "res judicata does not apply to habeas corpus", but restrictions do exist to avoid "vexatious and harassing repetition of invalid claims . . . or purposeful withholding of alternative grounds." Id. at 80. Thus courts have the discretion, even in the habeas context, to act to prevent "abuse" of the proceedings arising from deliberate omissions or "inexcusable neglect" on the part of the parties Id. at 81. However, absent such unusual circumstances, relitigation of required elements ought not to be constrained by application of the principles of issue preclusion. Such unusual circumstances were indeed found to exist in Leonard HH: presentation in the subsequent proceeding of facts presented in the earlier proceeding, or of facts available to have been presented therein but not actually presented (without "reasonable explanation" of the failure, Id. at 81), was held to constitute an abuse of the sort sufficient to bar relitigation.
The procedural context of Leonard HH is distinguishable in important repects from the instant case: there, the unsuccessful mental institution sought to relitigate an issue it had failed to prove initially, and to do so using evidence available in the first proceeding, while here the successful institution simply seeks to apply a necessary finding on a static element found by more than one Court earlier, in a subsequent retention proceeding, over the objection of the Respondent who litigated and lost on the issue originally. Notwithstanding the distinctions between this case and Leonard HH, that case provides a clear warning: proceed with the utmost caution, at a minimum, in respect to the application of the principles of issue preclusion in the mental hygiene context, lest substantive injustice result.
Due respect for that guidance must here militate against application of the constraints of issue preclusion. As set forth above, the evidence presented on the age-of-onset issue through the testimony of Dr. Niederbuhl in the instant proceeding is herein found to be objectionable and unreliable. Petitioner submits to the Court, in his Letter Memorandum of December 20, 2004, and Exhibits thereto, the transcript of the December 7, 2001, initial retention proceeding, as well as counsel's narrative rendition of the presentation upon the subsequent proceedings. While obviously it is not for this Court to sit in review of those earlier Courts' rulings, in regard to their determination either of evidentiary objections or of the age-of-onset issue itself, it is also apparent that the caution to be exercised in these matters requires examination of the context of the preceding litigation. Such examination discloses that the evidence received heretofore on the age-of-onset issue was, at best, of no greater reliability than the evidence offered in the instant proceeding through Dr. Niederbuhl.
Respondent objects to the presentation of the transcript and of counsel's rendition as being untimely submitted. Respondent's objection might be well-founded were this Court being asked to consider the material in the context of an offer of proof on the request to apply the doctrine of issue preclusion; however, such an offer by Petitioner was not necessary to put that question properly before the Court, inasmuch as the age-of-onset findings must necessarily have been made by each Court which previously addressed retention of Respondent. Rather, the material here is considered exclusively in the context of the pending motion and objection, to determine the manner in which the issue was actually litigated.
Under these circumstances, the cautionary warning of Leonard HH seems undoubtedly to suggest the inadvisability of this Court's applying the doctrine of issue preclusion and of thereby finding the age-of-onset element satisfied, when the actual proof tendered here on that issue is being held inadmissible on the basis of its unreliability. It would be anomalous, to say the least, for this Court to rule Dr. Niederbuhl's testimony on the issue inadmissible as unreliable, only to decide that issue through an application of the issue preclusion doctrine which would have the effect of importing into this proceeding determinations founded upon proof which appears to have been of no greater reliability. Furthermore, the implication of a ruling denying Petitioner's request to invoke issue preclusion here, with respect to the principles of judicial economy or efficiency, seem minimal, particularly in comparison to the implications a contrary ruling would have with respect to the principle of fairness, in light of the full history of this proceeding and of the evidentiary ruling above.
Although Petitioner has carried his burden of proving, by clear and convincing proof, each of the other elements required of him in this retention context, having failed in his proof with respect to the necessary issue of the age of onset of the disability of Respondent, his application for retention must be denied.
It is therefore the decision of the Court and it is hereby
ORDERED, that Respondent's motion to dismiss the Application to retain to retain him be granted; and it is further
ADJUDGED, that the Application is dismissed, and it is further
ADJUDGED, that the Court's judgment herein is hereby stayed for a period not to exceed fourteen days from the date hereof, to permit the parties time to arrange for the safe transition of Mr. A from his present placement.