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.”).	
2	

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.	
4	

                                  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.			
6	

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	
                                                                                                7	

       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;	
8	

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	
                                                                                  9	

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	
