Guardianship of David P.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 151
Docket: Cum-18-126
Argued: September 11, 2018
Decided: November 15, 2018

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

GUARDIANSHIP OF DAVID P.

JABAR, J.

[¶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 18-A M.R.S. § 5-601 (2017).

The Probate Court did not make any findings of fact in its final order,1 and David

did not request findings of fact pursuant to M.R. Civ. P. 52(a) after the Probate

Court entered its judgment. See M.R. Prob. P. 52 (providing that M.R. Civ. P. 52

applies in probate proceedings). Accordingly, we will assume that the trial

court made all of the factual findings, to the extent those assumed facts are

supported by competent record evidence, to support its judgment. See Ehret v.

1 Findings of fact are not required in this context; they are only mandatory upon request by a

party. See 18-A M.R.S. § 5-304(c) (2017) (“In its order, the court may make separate findings of fact
and conclusions of law. If a party requests separate findings and conclusions, within 5 days of notice
of the decision, the court shall make them.”).
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Ehret, 2016 ME 43, ¶ 9, 135 A.3d 101; Gehrke v. Gehrke, 2015 ME 58, ¶ 8,

115 A.3d 1252.

[¶2] David contends that there was insufficient evidence to support the

Probate Court’s decision and that the Probate Court erred when it admitted in

evidence a written report drafted by a psychologist. Although we agree that the

Probate Court erred by admitting the psychologist’s written report, we

conclude that the error was harmless and that there was sufficient competent

evidence in the record to support the Probate Court’s decision. Therefore, we

affirm the Probate Court’s judgment.

I. BACKGROUND

[¶3] In August 2017, the Department filed a petition for a public guardian

to be appointed for David. See 18-A M.R.S. § 5-303 (2017). A one-day trial was

held on February 22, 2018, where the Probate Court heard testimony from four

witnesses, including a psychologist. The following facts are taken from the

testimony of the witnesses at trial and are not contested on appeal.

[¶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
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dementia, but the psychologist was unable to determine the degree of dementia

present. Following his evaluation and a review of multiple medical reports, the

psychologist rendered his opinion, in which he concluded that David needed a

guardian. The psychologist testified that he came to this conclusion

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.
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II. DISCUSSION

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 M.R.

Evid. 802. The Department contends that the record was properly admitted

under M.R. Evid. 703, and argues that, even if the report had been improperly

admitted, it would nonetheless constitute harmless error. See M.R. Civ. P. 61;

M.R. Prob. P. 61. Trial courts have broad discretion in determining the

admissibility of evidence. State v. Fox, 2017 ME 52, ¶ 29, 157 A.3d 778. We

review a trial court’s ruling to admit or exclude alleged hearsay evidence for an

abuse of discretion. Walton v. Ireland, 2014 ME 130, ¶ 12, 104 A.3d 883. “[W]e

will find an abuse of discretion if a party can demonstrate that the trial court

exceeded the bounds of the reasonable choices available to it.” Fox, 2017 ME

52, ¶ 29, 157 A.3d 778 (quotation marks omitted).

[¶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.
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[¶8] In Henriksen v. Cameron, 622 A.2d 1135, 1143 (Me. 1993), we

addressed a similar question concerning the operation of Rule 703 where an

expert witness offered testimony that, in his own expert opinion, Henriksen

was suffering from post-traumatic stress syndrome. The expert further

testified that he consulted with another psychiatrist who had “prepared a

diagnostic evaluation that agreed with his opinion on virtually all aspects of the

case.”2 Id. (quotation marks omitted). Pursuant to Rule 703, this testimony was

admitted over a hearsay objection. Henriksen, 622 A.2d at 1143. Finding that

the trial court erred in admitting this evidence, we reasoned:

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.

Henriksen, 622 A.2d at 1144.

[¶9] Here, the psychologist testified to his opinion without objection, but

David objected to the admission of the psychologist’s written report. The

2 Following this testimony, the psychologist’s report was referenced two additional times: once

on direct-examination and once during closing arguments. Id. at 1143-44.
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Probate Court admitted the written report in evidence, stating that it believed

that the written report was “not hearsay.” Notwithstanding the fact that the

psychologist was testifying, his written report’s extensive quotations of other

medical reports evaluating David’s condition constituted multiple levels of

hearsay because those statements were made out of court and the report was

offered to prove the truth of those statements. See M.R. Evid. 801(c), 805; see

also Malenko v. Handrahan, 2009 ME 96, ¶¶ 9, 35, 979 A.2d 1269 (holding that

the written report of an expert who testified at a divorce proceeding was

inadmissible hearsay evidence); Handrahan v. Malenko, 2011 ME 15, ¶ 16 n.3,

12 A.3d 79 (explaining that a report containing multiple levels of hearsay could

not be admitted under Rule 703 or as a business record without redacting the

hearsay statements that did not fall within an exception to the hearsay rule

(citing In re Soriah B., 2010 ME 130, ¶ 19, 8 A.3d 1256)).

[¶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
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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;
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Henriksen, 622 A.2d at 1143-44; see also Field & Murray, Maine Evidence § 703.2

at 399 (6th ed. 2007) (“An expert opinion does not become the vehicle to

convey inadmissible hearsay evidence into the trial for direct consideration and

analysis by the jury.”). Because it was error for the Probate Court to admit the

psychologist’s written report, we must now consider whether such error was

harmless.

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
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Probate Court’s guardianship appointment. See Guardianship of Smith,

2011 ME 51, ¶ 8, 17 A.3d 136 (“[E]ven if we assume that some of this evidence

was improperly admitted based on the Maine Rules of Evidence, the abundance

of other evidence supporting the court’s guardianship appointment renders

any such error harmless.”).

[¶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