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Shpigel v. White12/10/1999
ck injury, and White contests the opinion, expressed in the records of the P.A., that there are no residual symptoms from that prior injury. The instant case also involves issues of the degree of force of the trauma, and there is a conflict between the P.A.'s opinion of a total disability of several weeks duration and the prognosis of three days discomfort made in the hospital discharge instructions.
Although Maryland Rule 5-803(6) is not verbatim Fed. R. Evid. 803(6), the changes in the former from the latter "are intended to be non-substantive." L. McLain, Maryland Rules of Evidence, at 245 (1994). The editors of 5 Weinstein's Federal Evidence ยง 803.11 , at 803-76 through 803-77 (2d ed. 1999), in addressing the type of issue now before us, state that " f the expert is available and the diagnostic opinion is of a kind competent physicians may disagree upon, the Judge has discretion to require the expert to testify to insure trustworthiness through cross-examination, particularly if the medical issue is crucial." (Footnote omitted).
In Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 604 A.2d 47, cert. denied, 506 U.S. 871, 113 S. Ct. 204, 121 L. Ed. 2d 145 (1992), this Court described the factors that could lead to a determination that a business record is untrustworthy.
We said:
"The factors that can be utilized by a trial Judge in determining whether a business record or a portion of a business record should be excluded for lack of trustworthiness may include such factors as: 1) the purpose for which the record was prepared and any possible motive to falsity including whether the record's use in prospective litigation was a motive for its preparation; 2) how routine or non-routine the record is and how much reliance the business places on the record for business purposes; and 3) where, as in the instant case, the record contains opinions and Conclusions--how valid, speculative, or conjectural the opinions or Conclusions are, as well as the need for interpretation or cross-examination to prevent misleading or confusing the trier of fact." Id. at 115, 604 A.2d at 50-51 (citations omitted).
Somewhat analogous to the instant matter is Chadderton v. M.A. Bongivonni, Inc., 101 Md. App. 472, 647 A.2d 137 (1994). Chadderton was a workers' compensation case in which the insurer and the Subsequent Injury Fund succeeded in placing in evidence in the circuit court copies of the reports rendered to them by the physicians to whom they had referred the claimant for the purpose of obtaining an opinion on the nature and extent of disability. Closely following the analysis in Yates v. Bair Transport, Inc., 249 F. Supp. 681 (S.D.N.Y. 1965), the Court of Special Appeals held that the reports were inadmissible.
Yates was a motor vehicle accident case involving a plaintiff who had previously made a workers' compensation claim. The plaintiff sought a pretrial ruling on the admissibility of medical reports rendered by his treating physicians in the then pending accident case and by physicians who had examined him for the insurer in the workers' compensation case and for the insurer of the defendant in the motor vehicle accident case. Id. at 689. There was a stipulation that the reports were authenticate, and the court concluded that they were regularly maintained business records. The Yates court then addressed the concern noted in Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943), "with the likely untrustworthiness of materials prepared specifically by a prospective litigant for courtroom use." Yates, 249 F. Supp. at 689. The court in Yates looked for "an added element of trustworthiness which will counterbalance the fact that these reports we
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