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Barringer v. Mid Pines Development Group9/3/2002
yle, 49 N.C. App. 98, 270 S.E.2d 582 (1980), disc. rev. denied, 301 N.C. 724, 274 S.E.2d 233 (1981) concerning "records of a regularly conducted activity" has been superceded. Hoyle was decided prior to the adoption of the North Carolina Rules of Evidence in 1983. Rule 803(6) now controls the admission of records of a regularly conducted activity at trial, not Hoyle. Under Rule 803(6), medical records may be admissible when there is an affidavit from a custodian of the records which shows that the record was made at or near the time of the evaluation, that the record was created by a person with knowledge, and the record was kept in the ordinary course of business. Chamberlain v. Thames, 131 N.C. App. 705, 716-17, 509 S.E.2d 443, 449-50 (1998) ("This affidavit satisfied the requirements of Rule 803(6).")
Here, the record shows that defendant fully complied with all of the requirements of North Carolina Rule of Evidence 803(6), Records of Regularly Conducted Activity. Plaintiff was afforded the opportunity to depose the author of the report and subpoena her to appear at trial. Plaintiff declined all of the above. Medical records are not "crossexamined," people are. There is no evidence in the record that plaintiff was unfairly surprised by the information elicited by defendant from plaintiff's witness on cross-examination. I would overrule this assignment of error.
IV. Other Assignments of Error
The majority's opinion does not reach plaintiff's remaining assignments of error. I have thoroughly reviewed plaintiff's remaining assignments of error, and find them without merit. The trial court correctly refused to allow cross-examination about defendant's insurance coverage. Plaintiff also failed to show that the trial court abused its discretion in awarding expert witness fees. I would overrule plaintiff's remaining assignments of error.
V. Summary
The facts here do not approach with any similarity those facts in prior cases where "undivided attention to other matters" or "hurry or confusion" or "conditions arising suddenly" were present. On several occasions, plaintiff had traveled to the buffet, was warned not to go behind the table, and had safely traversed the same cord that he later tripped over. Plaintiff had fair and full opportunity to depose or call the author of the medical report as a witness at trial. Any reliance on Hoyle is misplaced due to the adoption of the North Carolina Rules of Evidence in 1983. From the evidence presented, after diligent argument from counsel and proper instructions, the jury unanimously found plaintiff to be contributorily negligent. I would affirm the decision of the trial court. I respectfully dissent.
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