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Shpigel v. White12/10/1999
re prepared in clear anticipation of litigation." Id. at 689-90. That added element of trustworthiness was found in those reports that were rendered by physicians to whom the plaintiff had been referred by the defendant, and the Yates court ruled that it would admit those reports. On the other hand, the court would not admit those reports rendered by the plaintiff's treating physicians, saying: "No case, however, has been found or cited wherein a plaintiff was permitted to introduce self-serving reports made by doctors of his own choosing, in anticipation of litigation to shore up his own case." Id. at 691 (footnote omitted).
The Court of Special Appeals in Chadderton, applying the Yates rationale, held that the reports rendered by physicians to whom the claimant had been referred by the workers' compensation insurer and the Subsequent Injury Fund were not admissible when introduced by the parties who had arranged for those reports, essentially for a lack of trustworthiness. Chadderton, 101 Md. App. at 483-84, 647 A.2d at 142. Erroneously admitting the reports was held to be prejudicial, because the plaintiff was unable to cross-examine the physicians whose opinions were introduced in report form. Id. at 486, 647 A.2d at 144. Thus, although the circuit court in Chadderton had been persuaded that the reports were admissible under a section of the Workers' Compensation Act stating that "'the proceedings in an appeal shall be informal and summary,'" id. at 479, 647 A.2d at 140, and although the circuit court had found the reports to be sufficiently trustworthy, the Court of Special Appeals focused only on the trustworthiness aspect of that ruling. The appellate court in effect held that the circuit court had abused its discretion in concluding that the reports were trustworthy.
Much the same problem was presented in Kelly v. HCI Heinz Construction Co., 668 N.E.2d 596 (Ill. App.), appeal denied, 675 N.E.2d 634 (Ill. 1996). Kelly, a bricklayer, was injured in the collapse of a scaffold on which he was working. Under the Illinois Structural Work Act he sued the general contractor and the company which had supplied the scaffolding. At trial Kelly unsuccessfully sought to introduce as business records the records of his attending physician and the records prepared by a physician to whom the scaffolding supplier had referred Kelly. The appellate court sustained both exclusions. The treating physician's records were excluded as records prepared in anticipation of litigation and not made in the regular course of business. Id. at 600. The same objection applied to the report by the defense expert, but those records "may nevertheless be admissible against a party as an admission." Id.
The Illinois court then summarized a portion of 2 J.W. Strong, McCormick on Evidence ยง 293, at 281 (4th ed. 1992).
The full text of the cited portion of that commentary, dealing with diagnostic statements in hospital records, is as follows:
"However, admissibility of all such entries is not assured. First, where there are indications of lack of trustworthiness, which may result from a lack of expert qualifications or from a lack of factual support, exclusion is warranted under the rule. 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 the probative value of this evidence is outweighed by the danger that the jury will be misled or confused. This is of particular concern if the opinion involves difficult matters of interpretation and a central dispute in the case, such as causation. Under these circumstances, a court operating under t
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