A prior article examined the business records exception to the hearsay rule, and it specifically looked at the language and case treatment of Evidence Code section 1271. This post explores the application of Section 1271 to business records that are common in litigation: third party records, medical records, and investigation reports.
Third Party Records (e.g., Third Party Invoices): The elements of Section 1271 suggest that third party documents should never be admitted without a witness testifying about the timing and mode of the their preparation. See Cal. Evid. Code § 1271(d). But what about third party invoices? Suppose, for example, a plaintiff wishes to have third party invoices admitted to prove the cost of repairs made necessary by a defendant's wrongdoing? Suppose as well that the plaintiff received and paid these invoices. Are the invoices admissible as business records? Or must the plaintiff call that third party to fulfill the elements of Section 1271?
The California Supreme Court in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal. 2d 33 (1968) addressed these questions. G.W. Thomas was a property damage case where the defendant was hired to remove and replace a steam turbine's cover. In the course of the defendant's work, the cover fell and damaged the turbine. Id. at 36. To prove its damages, the plaintiff introduced invoices received from a third party. The plaintiff testified that it received and paid the invoices. Id. at 42. The plaintiff also called an expert witness (a mechanical engineer) who relied on the invoices to opine that (1) the repairs were actually made, and (2) the charges were reasonable. See id. at 43. The defendant appealed, and argued that the trial court erred in admitting the invoices into evidence.
On appeal, the Court looked at how the invoices were used at trial: first, to corroborate the plaintiff's testimony that it paid for the repairs; second, to prove that the repairs were actually made. Id. at 42. With respect to the first use, the Court explained that "invoices, bills, and receipts for repairs are inadmissible independently to prove  that liability for the repairs was incurred,  that payment was made, or  that the charges were reasonable." Id.
But although the invoices were hearsay, the Court explained they could be used for the limited purpose of corroborating the plaintiff's testimony: "If, however, a party testifies that he incurred or discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his testimony [citations omitted], and if the charges were paid, the testimony and documents are evidence that the charges were reasonable." Id.; see also Imperial Cattle Co. v. Imperial Irrigation Dist., 167 Cal. App. 3d 263, 272 (1985) ("[This] rule may be supported by the observation that a party who receives a bill or invoice normally has every interest to dispute its accuracy or reasonableness if there is reason to do so. Thus, if a bill or invoice is paid, the court is assured of the accuracy and reasonableness of the charges.").
Turning to the expert witness' reliance on the invoices as evidence that the repairs were actually performed, however, the Court held this was error. The Court explained that "[n]o qualified witness was called to testify that the invoices accurately recorded the work done by [the third party], and there was no other evidence as to what repairs were made." Id. at 43. Referring specifically to Section 1271, the Court ruled that "[a]n invoice submitted by a third party is not admissible evidence on this issue unless it can be admitted under some recognized exception to the hearsay rule." Id.
G.W. Thomas is an important case because it illustrates how a document's admission can turn on the proponent's reason for using it. If a party uses a third party document to simply corroborate a witness' testimony, it is likely admissible without testimony fulfilling the requirements of Section 1271. On the other hand, if a party intends to rely on a third party document to independently establish certain facts found therein, the records are inadmissible without competent testimony.
A Comment on Admitting Documents
There can be a temptation for newer trial lawyers to reflexively move exhibits (or at least try) into evidence the moment they are identified and authenticated. However, the timing and decision to request their admission should be tactical, not automatic. Indeed, an exhibit cannot be published to a jury until it has been admitted. However, there are plenty of exhibits that a jury could care less about viewing. And requesting admission of these types of exhibits runs the risk of having a witness examination broken up by objections or requests by the opposing party tovoir dire the witness.
Consider a hypothetical case in which a party wants to establish that a certain witness was in Los Angeles from April 11th through the 15th. Exhibits can be valuable tools to give the witness' testimony credibility, but immediately moving the exhibits into trial (even for the limited purpose of corroborating the testimony) can break up the cadence of an examination.
Q Where were you between April 11 and April 15 last year?
A I was Los Angeles.
Q How did you get to Los Angeles?
A I flew from Chicago?
Q I show you what has been marked for identification as Exhibit 1. Can you identify it?
Q What is it?
A It is a copy of my boarding pass for my flight on April 11th from O'Hare to LAX.
Counsel: Your Honor, request to admit Exhibit 1.
The Court: Any objection?
Requesting admission of the boarding pass could invite a hearsay objection. The objection breaks the flow of the examination, and it could lead to a sidebar discussion about whether the document is being offered to independently prove the witness' flight to Los Angeles (inadmissible) versus merely corroborating the witness' testimony (admissible). In the heat of trial, there is no guarantee the proponent of the document will prevail. And what is gained by the document's admission at this time? Not much; the jury has little interest in seeing the contents of a boarding pass. And what is lost if admission is denied? Plenty; the jury is left wondering why the proponent failed to successfully admit into evidence a boarding pass. Was it a fake? Was it the wrong date? Can the jury trust this lawyer or witness?
Indeed, powerful witness testimony is available without the immediate request to admit exhibits. Using the same hypothetical, consider the following:
Q Where were you between April 11 and April 15 last year?
A I was Los Angeles.
Q Do you recall how you traveled to Los Angeles?
A Yes. I flew.
Q Do you recall on which airline you flew?
A Yes. I flew on American Airlines.
Q How do you recall that you flew American?
A Well, I usually fly United, but I remember that on this particular trip I flew American because I was able to find a cheaper fair.
Q I show you what has been marked for identification as Exhibit 1. Can you identify it?
Q What is it?
A It is a copy of my American Airlines boarding pass for my flight on April 11th from O'Hare to LAX.
Q [Note there is no request to admit the boarding pass] Now, when you arrived in Los Angeles, do you recall where you went?
A Yes. I took an Uber to my hotel.
Q How do you remember that you took an Uber instead of, for example, a taxi?
A I prefer to take Uber when I'm on business trips. And I hadn't traveled to Los Angeles for several years. And I remember researching, before I left, whether Uber pickups were allowed at LAX, and they were.
Q I show you what has been marked for identification as Exhibit 2. Can you identify it?
Q What is it?
A This is a screenshot from my iPhone showing my Uber receipt.
And so it goes. The witness can similarly be examined about his hotel receipt, meal receipts, entertainment expenses, etc. all without a request to have the various exhibits admitted. Another tactical decision is whether to ever move to have such documents admitted. One option is to make the request at the end of the witness' examination: "At this time your Honor, I would like to offer Exhibits 1, 2, 4 and 10, all previously identified by this witness, into evidence." With the substantive testimony complete, there is less likelihood that opposing counsel will have as many knee-jerk objections, and the exhibits can make their way into evidence without objection.
Medical Records: People v. Williams, 187 Cal. App. 2d 355 (1960), illustrates the importance of examining both (1) the specifics of what, in a medical record, a party is seeking to introduce, and (2) the reason the party is seeking to introduce the information. The defendant in Williams was convicted of first degree murder. The homicide was especially grizzly, and the defendant offered a version of events in which the decedent suffered a series of injuries—not from the defendant—but rather from drinking, becoming violent, and falling over. Id. at 360-62.
To corroborate the defendant's version, defense counsel sought to introduce a series of medical records indicating the decedent had previously shown a pattern of psychotic behavior and suffered from personal injuries and alcoholic psychoses. Id. at 362. With respect to the medical records that defense counsel sought to introduce, they primarily consisted of "clinical histories" such as the following:
When the patient was apprehended, she attempted to run in front of a train. At the hospital she became violent and uncontrollable. It is felt that she has an alcoholic psychosis. Parents were contacted. They said she does these things every so often. They would not come to pick her up to take her home but would accept her if she were brought.
The trial court excluded such records, and the Court of Appeal affirmed. The Court acknowledged that the substance of the records included a combination of hearsay statements as well as diagnoses of the patient. But to determine admissibility, the Court looked at the reason defense wanted the records admitted. And because the reason was to corroborate defendant's version of events, the defendant was essentially looking to prove the truth of the matters asserted in the decedent's hearsay statements (and not the medical personnel's observations or diagnoses):
The diagnoses found in the record would have no tendency to support [the defendant's] story; it was the proof of bizarre behavior such as butting the head on a cement floor, running in front of moving vehicles, butting into objects such as trees and automobiles,—the fact of such conduct that counsel was seeking to prove by hearsay.
The Court made the point that decedent's hearsay statements would have been inadmissible had they been offered orally by the medical personnel. And just because those same statements were found in medical records did not change their hearsay status: "It does not make the record admissible when oral testimony of the same facts would be inadmissible." Id. at 364. Finally, the Court articulated the limited circumstances in which patient histories can be admitted: "It should be remembered that a history given by a patient to his physician is admissible only as a basis for the expert opinion of the latter and never as substantive proof of the facts so stated to him by the patient." Id. at 365.
The importance of why records are being introduced was also discussed in Springer v. Reimers, 4 Cal. App. 3d 325 (1970). Springer was a personal injury case in which the plaintiff fell from a hopper trailer. Id. at 330. The plaintiff's treating physician testified that the plaintiff suffered a cerebral concussion and demonstrated symptoms of a brain injury. Id. at 337. On cross-examination, the doctor was asked about a different doctor's typewritten report, which included a medical history provided by the plaintiff. This patient history revealed that the plaintiff reported moderate to heavy alcohol intake for the past forty years. Id. at 337-38. Based on this other doctor's report, the testifying physician acknowledged that he also diagnosed the plaintiff with delirium tremens (confusion caused by the withdrawal of alcohol). Id. at 338. The records were admitted into evidence over the plaintiff's objection, and the plaintiff appealed.
Relying on Williams, the plaintiff argued that admission of the non-testifying doctor's report (including the statements attributable to the plaintiff) was in error. The Court explained that the attempted reason to use the records in Williams was "as proof of the facts stated therein." Id. at 338-39. In Springer, however, the records were not admissible as proof of facts so stated, but rather "as a part of the information upon which the physician based his diagnosis and treatment...." Id. at 338. This inquiry was relevant because "it was proper for the jury to determine whether [the plaintiff] had sustained [a] brain injury as a result of the accident, whether the signs of brain injury were attributable to the effects of chronic alcoholism, or whether the brain injury was attributable to both the accident and the alcoholism." Id. at 339.
While the Springer Court affirmed the record's admission into evidence, the Court determined that the ultimate use of the records during trial was prejudicial. During closing argument, defense counsel made "pointed references to [the plaintiff's] credibility on the basis of his habitual intemperance." Id. at 340. So while the defense argued that the records were admissible for the limited purposes of determining damages, "it is apparent that [another] purpose in eliciting [the plaintiff's] past history of intemperance was to demonstrate to the jury that because [the plaintiff] was a chronic alcoholic he was not credible and, therefore, could not be believed as to his version of the accident." Id.
Finally, while it is common for medical experts to rely on medical records as a basis of their opinion, it is important to remember that expert witnesses cannot be channels by which out-of-court statements are introduced to the trier of fact. Garibay v. Hemmat, 161 Cal. App. 4th 735 (2008) was a malpractice case where the trial court granted summary judgment in favor of the defendant. The plaintiff underwent a bilateral tubal ligation, which is intended to make pregnancy impossible. Id. at 738. The plaintiff got pregnant, however, and sued the surgeon for malpractice. Id. at 738-739.
The defendant's motion for summary judgment was based on a declaration from the defendant's expert witness, a non-treating physician. Id. The declaration stated that he reviewed the relevant medical records and, based on their contents, the defendant's conduct was appropriate and within the standard of care to accomplish the bilateral tubal ligation procedure. Id. at 739-40.
The Court of Appeal reversed the judgment because the expert improperly attested to facts about which he had no personal knowledge. And while the defendant could have sought to have the medical records admitted as business records, there was no attempt to do so. Id. at 742. "Therefore [the expert's] declaration of alleged facts had no evidentiary foundation. An expert's opinion based on assumptions of fact without evidentiary support has no evidentiary value." Id. at 743.
Accident and Investigative Reports: Determining the admissibility of accident reports requires certain threshold questions. For example, determining who (or what entity) prepared the report is important because that determines whether the report might also be admissible under the "public records" exception.
The elements of the public records exception closely resemble those of the business records exception. The public records rule is as follows:
Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:
(a) The writing was made by and within the scope of duty of a public employee.
(b) The writing was made at or near the time of the act, condition, or event.
(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
Cal. Evid. Code § 1280.
Unlike the business records exception, there is no requirement for testimony as to the identity and mode of preparation of the writing. Instead, Evidence Code section 664 presumes that the method and preparation were reliable, and thus the opponent of the record bears the burden to show that the method or preparation were unreliable. Cal. Evid. Code § 664 ("It is presumed that official duty has been regularly performed....").
Fisk v. Department of Motor Vehicles, 127 Cal. App. 3d 72 (1981) provides a good example of a Section 1280 analysis. The case involved a license suspension imposed by the DMV for drunk driving. Id. at 75. The arresting offer testified that he prepared an "Officer's Statement," which recorded his observations of the defendant while the events were fresh in his mind. Id. However, at trial, the officer testified that he had no independent recollection of the event. Id. The Court analyzed the report's admission, and determined that the elements of Section 1280 were met: "[I]n the course of [the arresting officer's] duties, he personally arrested [the defendant] for drunk driving and wrote this report.... The timeliness condition ... was met by the officer's testimony that he prepared the document within an hour of the arrest while the events he described were still fresh in his mind." Id. at 76.
With respect to subdivision (c), the Court explained that the trustworthy element was met because the written report was based upon the observations of a public employee who had a duty to observe the facts and report and record them correctly. Id. at 77. Moreover, this element was bolstered by Section 664, which affects the burden of proof: "[S]ection 664 places the burden with respect to the foundational issue of the trustworthiness of the method and preparation of the official report on the [defendant] instead of the [police] officer." Id. at 78. Among the policy reasons for this burden shifting is the reality that there is an "unlikelihood that [the officer] will remember details independently of the record.... Given the volume of official police work, the officer's official written statement will usually be more reliable than his present memory." Id.
While Section 664 presumes that an official duty has been regularly performed, the proponent of a public record still bears the burden of establishing that "a person ha[d] an 'official duty' to perform an act." Furman v. Department of Motor Vehicles, 100 Cal. App. 4th 416, 422 (2002). In Furman, the DMV sought to suspend Furman's driving license, and it relied on a "Forensic Alcohol Analysis" document. This document was on letterhead from the "Department of Justice Bureau of Forensic Services" and bore the signature of "Marianne Perhach [¶] Criminalist." Id. at 419. The Court held that the public records exception did not apply because the DMV provided no foundation that the individual who prepared the document had an "official duty" to perform and record a forensic alcohol analysis. Id. at 422. The applicable regulations identified those who were authorized to perform such analyses, and criminalists were not among them. Id. at 422-23. Thus, without any foundation that the person who signed the document had an "official duty" to perform the analysis, the document was inadmissible hearsay. Id. at 423.
With respect to the public records exception, it is not essential that the person making the report have personal knowledge of the facts recorded therein. The exception applies so long as the person making the observations (to the person making the report) had a duty to observe and report the facts accurately. For example, in Gananian v. Zolin, 33 Cal. App. 4th 634 (1995), the Court found that Section 1280 applied because the officer who observed dangerous driving had a duty to truthfully report such facts: "In reporting his personal observations to [the reporting officer], [the observing officer] was acting pursuant to his duty as a police officer to observe the facts and report them correctly." Id., at 640-41. A different result occurs where the report includes information observed by a person who is not under such a duty. See e.g., Taylor v. Centennial Bowl, Inc., 65 Cal. 2d 114, 126 (1966) ("[B]usiness records are not admissible under this exception when they are 'not based upon the report of an informant having the business duty to observe and report.'").
Finally, whether the potential exception is the business or public records exception, an important inquiry is the reason for the document's preparation. Reports prepared for the purpose of litigation, for example, will normally "cast doubt on the report's trustworthiness." See Rovetti v. City of San Francisco, 131 Cal. App. 3d 973, 981 (1982). While there is not a per se rule mandating exclusion in such instances, it is a factor for the trial court to consider when it is exercising its discretion. Id.
Learning, studying, and executing these rules for business exhibits are important tools for the trial attorney.
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