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Bradley v. Brotman2/19/2003
ver, the note may have been inadmissible as a business record on the grounds that it was "untrustworthy" because the opinion was given without having conducted another examination of Kelly or having followed her progress. See generally Beckerman v. Greenbaum, 439 So. 2d 233, 235 (Fla. 2d DCA 1983) (holding a supplemental record was inadmissible where it was made in 1980 to summarize a 1974 transaction and was prepared in anticipation of trial not as part of business activity).
Even if the medical record satisfied the business record exception, the opinion still may be excluded if it is unfairly prejudicial or confusing under section 90.403, Florida Statutes. This prejudice or confusion is more likely to occur in a case where the expert does not testify at trial and is not subject to cross-examination. See Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994); accord McElroy v. Perry, 753 So. 2d 121, 125-26 (Fla. 2d DCA 2000); Phillips v. Ficarra, 618 So. 2d 312, 313-14 (Fla. 4th DCA 1993); see generally Lazorick v. Brown, 480 A. 2d 223, 226 (N.J. Super. Ct. App. Div. 1984) (noting that despite the business records exception to the hearsay rule, the record may be excluded as substantive proof if the opinions therein relate to the diagnosis of a complex medical condition difficult to determine or substantiate and the expert is unavailable for cross-examination). See also Charles W. Ehrhardt, Florida Evidence § 803.6 (2001 ed.).
Section 90.403 allows the trial court to exercise its discretion to exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." McCormick on Evidence notes that opinions and diagnoses contained in medical records may be excluded from admission under the similar Federal Rule of Evidence 403. McCormick states that the,
dmissibility of all such [opinions and diagnoses] is not assured. First, where indications of lack of trustworthiness are shown, which may result from a lack of expert qualifications or from a lack of factual support, exclusion is warranted. Moreover, inclusion of opinions or diagnoses within the rule only removes the bar of hearsay. In the absence of the availability of the expert for explanation and cross-examination, the court may conclude that probative value of this evidence is outweighed by the danger that the jury will be misled or confused. This concern is particularly significant if the opinion involves difficult matters for interpretation and a central dispute in the case, such as causation. John W. Strong, McCormick on Evidence § 293 (5th ed. 1999) (footnotes omitted) (emphasis added).
The second district recognized this limitation on an otherwise admissible business record in Perry. See 735 So. 2d at 126. In that case, the court held the trial court abused its discretion in admitting the report of an independent medical examination because the report was prepared solely for litigation purposes, and thus, lacked trustworthiness. See id. at 127. However, the court also noted that, if the physician had not testified and not been subjected to voir dire and cross-examination, then that "would, without question, render the admission" an abuse of discretion. Id. at 126 (emphasis added).
In this case, the court could have easily prevented the prejudice and cured any potential error by excising the reference to the telephone note in the record. That is what Krupnick repeatedly asked the court to do. The jury had not seen the notes. Therefore, the jury's mind was not as yet "tainted" by this evidence. We conclude for all of these reasons that the court abused its discretion
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