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Oliveaux v. St. Francis Medical Center12/15/2004
interview her, but if she had, Ms. Craighead would have told her she noticed evidence of child abuse, took a photo of Haley's bloody diaper, and tried to report the situation to CPS, but the intake agent who answered the phone was "unresponsive." She could not produce the photo at trial; after Haley's death, she gave it to an IDB investigator named Cummings. Cummings wrote a letter to Duncan's IDB attorney, Louis Scott, advising that Ms. Craighead's testimony would not be helpful to Duncan's defense.
Cummings later died, and a portion of this letter was found among his effects.
Oliveaux offered this "report" in an effort to corroborate Ms. Craighead's trial testimony, and prove her assertion that CPS failed to process her initial report and that Ms. Pace failed to interview her in late November. The district court excluded it because Cummings's widow could not prove that it was a business record.
The hearsay exception for business records is La. C.E. art. 803 (6): Art. 803. Hearsay exceptions; availability of declarant immaterial.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of Regularly Conducted Business Activity
A memorandum, report, record, or data compilation, in any form, * * * made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. * * *
The admissibility of the deceased investigator's letter obviously hinges upon the "testimony of the custodian or other qualified witness" that the letter was part of his regularly conducted business activity. In Williams v. Augustus, supra, the court found that an attorney's ledger book was admissible as a business record; even though the attorney who kept the ledger was deceased, his son, who had worked in the office, had knowledge of his father's routine business practice and verified it, thus imparting reliability to the ledger.
No such foundation was made in the instant case. The investigator's widow was not shown to be part of the business or a custodian of his records. Without that foundation, the letter is inadmissible, as were the letters in State in Interest of JW, 2000-1445 (La. App. 4 Cir. 1/10/01), 779 So. 2d 961, and the invoices in Cole Oil & Tire Co. v. Davis, 567 So. 2d 122 (La. App. 2 Cir. 1990). This assignment lacks merit.
Conclusion
For the reasons expressed, the judgment is affirmed. The plaintiff, Jennifer O. Berry, is to bear all costs.
AFFIRMED.
LOLLEY, J., dissenting.
I respectfully dissent from the ruling of the majority concerning the issue(s) of negligence/gross negligence on the part of Children's Protective Services (CPS) and the agents/employees of that agency.
A review of the record of this case leads me to conclude that the actions and inactions of the officers/agents of CPS had a direct effect and constituted a causal link to the murder of Haley Oliveaux. Therefore, I am of the opinion that
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