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Ditto v. McCurdy6/9/1997
than the admissibility of his testimony. 10 Haw. App. at 313-14, 869 P.2d at 1361.
ii. Order of expert testimony.
Although "opinions of expert witnesses must [generally] be based upon facts in evidence," Loevsky v. Carter, 70 Haw. 419, 431, 773 P.2d 1120, 1127 (1989) (citations omitted), there is no requirement that expert testimony follow, rather than precede, the facts upon which the expert bases his or her opinion. Lai, 10 Haw. App. at 310, 869 P.2d at 1359. In fact, the underlying facts that support the opinion need not be admissible. As HRE Rule 703 explains:
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.
The record in this case reveals that Dr. Lassa gave expert testimony after reviewing facts made known to him before the trial and that those facts were subsequently introduced into evidence. We hold, therefore, that the order of Dr. Lassa's testimony is immaterial.
iii. Untrustworthiness of Dr. Lassa's testimony.
Dr. McCurdy's contention of "untrustworthiness" is equally without merit. Rule 703 explains that the trial court may prohibit expert testimony if the "underlying facts or data indicate lack of trustworthiness." HRE Rule 703. The commentary to HRE Rule 703 further states that "the facts or data must be established as reliable in the particular field." Commentary to HRE Rule 703.
Nothing in the record below indicates that the underlying facts or data relied on by Dr. Lassa were novel, controversial, or unreliable. Dr. Lassa simply testified about the standard of care for breast augmentation surgery and Dr. McCurdy's alleged breach of that standard based on Dr. Lassa's experience as a plastic surgeon . He had a sound factual foundation and drew on his medical expertise in the area of breast augmentation. See Aga v. Hundahl, 78 Haw. 230, 238-39, 891 P.2d 1022, 1030-31 (1995). For example, Dr. Lassa testified that Dr. McCurdy breached the standard of care by: failing to obtain informed consent; performing surgery in the recovery room without adequate aseptic (sterile) techniques; failing to re-explore Ditto's wound and remove clots after observing blood oozing through the wound; failing to properly suture Ditto's incision, leaving her susceptible to infection; and allowing a non-physician assistant to suture an incision outside of his presence.
We believe, based on Dr. McCurdy's contention that Dr. Lassa's testimony was "speculative, couched in 'possibilities,' and based on assumptions later shown false," that Dr. McCurdy is essentially arguing Dr. Lassa was not a credible or believable witness. Credibility, however, is a fact question to be decided by the jury. HRE Rule 1102 (the jury is the exclusive Judge "of all questions of fact and the credibility of witnesses"). Moreover, "extensive cross-examination of the expert so as to elicit his [or her] assumptions and test his [or her] data" is a more practical truth-seeking method than the exclusion of relevant opinion testimony. 3 J. Weinstein, et al., Weinstein's Evidence ยง 703(03) (1988).
The trial court's admission of Dr. Lassa's testimony did not clearly exceed the bounds
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