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Shpigel v. White12/10/1999
he issue before it as one raised by a motion for summary judgment in favor of the defendant. The court granted the motion, stating that it was "this court's view that in a case such as this, the issue of causation requires an expert opinion."
The court then explained why "as a practical matter" the records would not be admitted "in a case such as this," saying:
"The defense alleges that these injuries are not caused by this accident. That the plaintiff's condition is not as a result of the occurrence that happened on May 21st involving Miss White, that it's related to some other occurrence or other occurrences. That the treatment was not reasonable. That the medical expenses the plaintiff incurred were not reasonable. And the defense wants the opportunity to cross-examine and to see if some expert will say that they are reasonable, will say that it's causally connected in court. Without such testimony put on by the plaintiff that, in fact, there is a causal connection between the negligence the breach of the duty and the damages then the jury cannot hear the case."
After referring to Maryland Code (1974, 1998 Repl. Vol.), ยง 10-104 of the Courts and Judicial Proceedings Article (CJ), dealing principally with the admissibility in the District Court of Maryland of writings or records of health care providers and discussed, infra, the court ruled that "the types of records sought to be introduced in this case are not admissible in circuit court."
The plaintiffs appealed to the Court of Special Appeals, and this Court issued the writ of certiorari on its own motion in order to address the fundamental issues presented.
I.
We shall first address whether, and to what extent, the plaintiffs were able to overcome a hearsay objection to their attempted introduction of the records as business records under Rule 5-803(b)(6).
To lay the authenticity foundation for admission under that hearsay exception, the plaintiffs sought to use Rule 5-902(a)(11) which reads as follows:
"(a) Generally. Except as otherwise provided by statute, extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
....
"(11) Certified records of regularly conducted business activity. The original or a duplicate of a record of regularly conducted business activity, within the scope of Rule 5-803(b)(6), which the custodian or another qualified individual certifies (A) was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters, (B) is made and kept in the course of the regularly conducted business activity, and (C) was made and kept by the regularly conducted business activity as a regular practice, unless the sources of information or the method or circumstances of preparation indicate lack of trustworthiness; but a record so certified is not self-authenticating under this subsection unless the proponent makes an intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it."
The notice sent by the plaintiffs on or about October 21, 1998, arguably complied with the requirement of Rule 5-902(a)(11) for notice of intent to offer the documents as self-authenticating records "sufficiently in advance of [their] offer in evidence to provide [White] with a fair opportunity to challenge [them]." The records had been furnished to White in the preceding February in the plaintiffs' response to White's request for the product
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