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Can Opinion Come In Under the Business-Records Exception?

Here’s a common evidence question: Are opinions admissible when they’re in business records? The answer is generally “yes,” as long as the statement of opinion is in a writing that qualifies otherwise for the business-records exception to the hearsay rule.

A writing qualifies for the business-records exception to the hearsay rule is admissible in evidence if:

  • The statement of opinion is based primarily on the declarant’s personal observations; and
  • The statement of opinion is one that would be admissible if testified to by the declarant as a witness in court.

 The most common example is a hospital or physician’s record containing a doctor’s diagnostic opinion of a patient’s condition.

One important determining factor is whether the opinion is a “record of an act, condition, or event” as required by Evid C §1271. The evidence shouldn’t be a conclusion based on acts, conditions, or events that the person rendering the opinion didn’t personally observe. For example, an examining physician’s diagnosis “that a man has suffered a compound fracture of the femur” is a record of what the person making the diagnosis has seen and is thus admissible.

The phrase “record of an act, condition, or event” is generally interpreted broadly. Many decisions justify admitting opinion statements as business records on the ground that there’s no doubt about the physician’s qualifications as an expert to give a diagnostic opinion about a patient’s physical condition and that such an opinion is based primarily on examination of the patient and so is sufficiently reliable to be admitted in evidence.

Several additional factors may be relevant to a particular factual situation:

  • Do the sources of information indicate trustworthiness for the expert opinion found in the business writing? For example, a doctor’s opinion based solely on a review of other doctors’ reports without any examination of the patient may not be sufficiently trustworthy.
  • Is there is a danger of prejudice to the opponent that outweighs the probative value of the opinion calling for exclusion under Evid C §352?
  • Does the opinion rely on a consideration of many different factors requiring that the person who rendered the opinion be subject to cross-examination on the witness stand? If so, the witness can be questioned to see if the opinion is based primarily on his or her observation of the patient’s condition and whether the witness is qualified to give that opinion.

Federal law is much simpler on this: Federal Rules of Evidence 803(6) explicitly includes “opinions or diagnoses” as part of the business-records hearsay exception. This precludes a holding that such an opinion isn’t the record of an act, event, or condition. But it doesn’t prevent a court from holding that an opinion is inadmissible because circumstances or a source of information would indicate a lack of trustworthiness, or it would circumvent the requirement that a witness be disclosed as an expert.

For everything you need to know about getting business records into evidence, turn to CEB’s Jefferson’s California Evidence Benchbook, chap 4 and Effective Introduction of Evidence in California, chap 13. And fine tune your evidentiary skills with the help of Judge Renee Korn and Judge Scott Gordon from the Los Angeles County Superior Court, as they focus on the relationship between hearsay and business records in Evidence: The Business Records Exception to the Hearsay Rule, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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