Tuesday, May 5, 2009
Call The Doctor: New Hampshire Court Finds That Opponent Bears Burden Of Proving That Author Of Business Record Is Not An Expert
In relevant part, Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
Under this Rule, the opponent of a business record bears the burden of proving that “the source of information or the method or circumstances of preparation lack trustworthiness." Meanwhile, in relevant part, Federal Rule of Evidence 702 indicates that opinion testimony is admissible by a witness qualified as an expert by knowledge, skill, experience, training, or education." Under this Rule, the proponent of such opinion testimony bears the burden of proving that the person who will render it is in fact an expert.
So, when a party seeks to intrdouce into evidence an alleged expert's business record, who bears the burden of proof? Does the proponent have to prove that the person preparing the report is in fact an expert, or does the opponent have to prove that the source of information indicates lack of trustworthiness? According to the recent opinion of the United States District Court for the District of New Hampshire in Aumand v. Dartmouth Hitchcok Medical Center, 2009 WL 1164548, the answer in the opponent, and I strongly disagree.
In Aumand, the executor of the estate of Katherine Coffey and Coffey's widower, Francis Coffey, sued Dartmouth Hitchcock Medical Center (DHMC) alleging that it provided negligent medical care to Coffey during her hospitalization there, leading to an infection, the amputation of parts of her hand, and ultimately her death." DHMC subsequently brought a motion in limine, seeking to preclude the plaintiff from introducing a note written by a physician who saw Coffer the day before she died.
The district court disagreed, noting that the plaintiff properly established, and DHMC did not dispute, that the note was admissible as a business record under Federal Rule of Evidence 803(6). Instead, DHMC claimed that the plaintiff failed to establish that the physician was properly qualified as an expert witness under Federal Rule of Evidence 702. The court rejected this argument as well, finding that
most authorities take the view that a party offering a document admissible as a "report of regularly conducted activity" under Rule 803(6)...-as medical records generally are-...need not also show, under Rule 702, the qualifications of the document's author to render any opinions in the report....Instead, to exclude the opinion, the adverse party bears the burden to show that “the source of information or the method or circumstances of preparation lack trustworthiness,” as provided by Rule 803(6) itself.
This didn't sound right to me at all, so I decided to read the opinions cited by the court in support of this proposition. The first problem is that both were issed in 1979, well before Daubert drastically changed the expert testimony landscape. The second problem is that, to paraphrase Inigo Montoya, I do not think they mean what the district court thinks they mean. The first case cited by the court was Forward Communications Corp. v. United States, 608 F.2d 485, 511 (Ct. Cl. 1979), where the United States Court of Claims found that an appraisal report was inadmissible because the proponent of the report failed to disclose the identity of the expert who prepared it. The second case cited by the court was United States v. Licavoli, 604 F.2d 613 622-23 (9th Cir. 1979), the Ninth Circuit found that an appraisal report which was relied upon by the defendant's insurance company was admissible, concluding
We see no reason to adopt an inflexible rule that every case requires the proponent of a business record containing expert opinion to affirmatively establish the qualifications of the person forming the opinion....In this case, [the defendant] failed to alert the district court to specific facts raising any doubt concerning Aranoff's qualifications as an appraiser. Moreover, the insurer's reliance on Aranoff's appraisal is affirmative evidence of the reliability of the appraisal. It was in the interest of the insurance company to pay no more on Charna Signer's claim than the painting was actually worth; had the insurer doubted Aranoff's qualifications or entertained a belief that the Lucretia was worth significantly less than $10,000, it is unlikely that the insurer would have adopted Aranoff's appraisal. The trial judge did not abuse his discretion in admitting the business record into evidence.
Forward Communications Corp. clearly doesn't stand for the proposition that the district court ascribed to it, and Licavoli merely says that the proponent of a business record does not need to establish that the person preparing the report is in fact an expert in "every case." And I see nothing in Aumand similar to the insurer's reliance in Licavoli that would obviate this requirement.
Moreover, I don't see the logic in Aumond's holding. Federal Rule of Evidence 702 requires the proponent of expert opinion testimony to prove the the qualifications of an expert. Federal Rule of Evidence 803(6) requires the opponent of a business record to prove that the source of the information in it lacks trustworthiness. The only way that the latter rule can trump the former Rule is if a lack of trustworthiness is the same as a lack of qualifications, and I don't think that it is.
I can go to a recent medical school graduate and find him to be a trustworthy guy and yet still get a second opinion from a more experienced doctor based upon the recent grad's lack of experience. And if I see that recent grad so that he can prepare an expert report for my lawsuit against a defendant after a car accident, the defendant should bear the burden of proving that the doctor/report is untrustworthy. But I should bear the burden of proving that the recent grad is sufficiently qualified to render expert opinions.