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41. When offered to prove the cause of the plaintiff's condition, is the letter from the plaintiff's doctor admissible?
A plaintiff sued her employer, alleging that poor working conditions had caused her to develop a stomach ulcer. At trial, the plaintiff's medical expert testified to the cause of the plaintiff's ulcer and stated that his opinion was based in part on information in a letter the plaintiff's personal doctor had written to the plaintiff's employer, explaining why the plaintiff had missed work.
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Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular course of any business; and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. Fed. R. Evid. 803(6).
Experts may rely on hearsay in reaching conclusions, as long as other experts in the field would reasonably rely on such information. However, the Rule states that «if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.» Fed. R. Evid. 703.
A is correct. The letter contains statements made out-of-court and is being offered for the truth of the matter asserted — to prove the cause of the plaintiff's condition. The letter is not a business record under FRE 803(6) because it was not prepared in the ordinary course of regularly conducted activity. In addition, it cannot be admitted on the basis that experts are permitted to rely on hearsay in reaching a conclusion because the Rule will not allow admission when its probative value does not substantially outweigh the risks of prejudice and confusion for the jury. That strict balancing test is not met in this case. There is no other applicable exception, so the letter is inadmissible hearsay.
B is incorrect. The plaintiff's doctor's unavailability would only be relevant if the letter were being offered under FRE 804 as one of the «unavailability-dependent» exceptions to the hearsay rule. None of those exceptions are pertinent here. Furthermore, if the hearsay qualified as a hearsay exception under FRE 803 as a business record, then the doctor's availability would be completely irrelevant because unavailability need not be shown for those exceptions. And the letter does not qualify under any of the FRE 803 exceptions.
C is incorrect. The letter is hearsay if offered to prove that the plaintiff's condition was as indicated in the letter. As explained above, FRE 703 does allow an expert to rely on hearsay in reaching a conclusion, so long as other experts in the field would reasonably rely on such information and its admission would pass the strict balancing test, which it does not.
D is incorrect. As explained above, the doctor's letter clearly does not qualify under FRE 803(6) as a business record. It is not a medical record prepared in the ordinary course of regularly conducted activity. Rather, it is a letter written by the doctor on an ad hoc occasion. Thus, the letter lacks the earmarks of regularity that are critical for admissibility under the business records exception.