Durant v. United States

NEWMAN, Associate Judge,

concurring:

Much has happened since 1945, when New York Life Insurance Co. v. Taylor, 147 F.2d 297 (D.C.Cir.1945), was decided. That case applied the so-called “federal *1330 shopbook rule”, 28 U.S.C. § 1732 (a). Section 1732 was repealed on July 1,1975, and was replaced by Federal Rules op Evidence 803(6). However, on June 30, 1975, local rule 43-1 became effective in the Superior Court. Super.Ct.Civ.R. 43-1. That rule is substantially identical to the former federal shopbook rule.

Rule 803(6) of the Federal Rules op Evidence is substantially broader in the admissibility of diagnoses and opinions that was the federal shopbook rule. “Rule 803(6) in accord with the trend of state decisions and the conclusion of leading authorities rejects any attempt to exclude a particular class of hospital records. Diagnoses and opinions, without regard to routine vis-a-vis conjectural, or physical as against psychiatric, are included as proper subjects of admissible entries in addition to acts, events and conditions.” Weinstein’s Evidence, II 803(6) [06], at 803-200 (1988) (footnotes omitted). 1 According to the Advisory Committee Note to 803(6), Rule 803(6) was intended to overturn such decisions as New York Life, supra, and Lyles v. United States, 254 F.2d 725 (D.C.Cir.1957), ce rt. denied, 356 U.S. 961 , 78 S.Ct. 997 , 2 L.Ed.2d 1067 (1958). See Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183 , 309 (1973).

An analysis of what was at issue under the federal shopbook rule in New York Life Insurance Co. v. Taylor, supra, is instructive in understanding that decision. The insured decedent died while a patient at Walter Reed General Hospital by falling down a stairwell. There were no witnesses. The circumstances of the fall indicated the possibility of suicide. Taylor sued New York Life seeking to recover the double indemnity payable upon accidental death. New York Life sought to introduce records of the hospital relating to the cause of death of the insured, seeking to show that the decedent committed suicide. These records consisted of the (1) patient’s history given upon admission, including an account of his illness and his mental state; (2) diagnosis upon admission; (3) reports of three operations performed in the hospital; (4) recordation of insured’s statements indicating he was contemplating suicide; (5) report of psychiatrist’s consultation resulting from contemplated suicide; (6) psychiatric diagnosis; and (7) the transcript of Walter Reed Hospital’s Board of Officers’ proceedings, including findings with respect to cause of death. The trial court sustained Taylor’s objection to the admission of these records; New York Life appealed an adverse jury verdict.

The United States Court of Appeals for the District of Columbia Circuit affirmed. New York Life, supra, 147 F.2d at 299 . It held that the Supreme Court, in Palmer v. Hoffman, 318 U.S. 109 , 63 S.Ct. 477 , 87 L.Ed. 645 (1943), “limited the admission of records under the federal shopbook rule statute to those which are trustworthy because they represent routine reflections of day-to-day operations.” New York Life, supra, 147 F.2d at 300 . Since these records were “not offered to prove routine facts such as the date of admission to the hospital, the names of attending physicians, etc.," they were not admissible. Id. In his dissent, Judge Edgerton argued that all of the proffered medical records (except for the transcript of the Board of Officers’ proceedings) should have been admitted under the federal shopbook statute. To support his view, he pointed to the medical records cases cited with approval in the congressional committee reports as the type of records to be admitted under the federal shopbook statute Congress was then considering (and later adopted). He noted that both the Second and Third Circuits had adopted this position. He pointed out that the federal statute was virtually identical to the Model Act and that courts in states which had adopted the Model Act had applied it repeatedly to medical records, including diagnosis (including in at least New York, a diagnosis of manic depressive insanity). He noted further that *1331 even before the adoption of the federal shopbook act, the District of Columbia Circuit had held that diagnoses and opinions as well as observations of medical officers contained in medical records were admissible (citing United States v. Balance, 59 F.2d 1040, 1042 (D.C.Cir.1932)). That hospitals rely on these diagnoses and opinions of medical officers in matters of life and death provided the necessary indicia of trustworthiness in Judge Edgerton’s view to render them admissible. He found Palmer v. Hoffman, supra, easily distinguishable given the issue presented in that case — the admissibility when offered by the railroad defendant of the statement that the engineer of the train made to his supervisor about the cause of the accident in which Hoffman and his wife suffered injury. Judge Edgerton noted correctly that the Supreme Court found the records were not admissible since the business of railroads is railroading, not investigating accidents in which its trains were involved. In essence, Judge Edgerton argued that the records in Palmer v. Hoffman were rejected because they lacked the necessary indi-cia of trustworthiness, noting that “the primary utility [of such reports] is in litigating, not railroading.” New York Life, supra, 147 F.2d at 301 (Edgerton, J., dissenting) (citing Palmer, supra, 318 U.S. at 114 , 63 S.Ct. at 480 ).

Subsequent to New York Life, the Second, 2 Third, 3 Fourth, 4 Seventh, 5 Eighth, 6 and Ninth 7 Circuits held medical records, including diagnoses and opinions admissible under the federal shopbook statute.

We have cited New York Life v. Taylor, supra, in construing Super.Ct.Civ.R. 43-1; see, e.g., Rotan v. Egan, 537 A.2d 563, 566 (D.C.1988); Adkins v. Morton, 494 A.2d 652, 662 (D.C.1985); Christensen v. Gammons, 197 A.2d 450, 452-53 (D.C.1964), although we were not required to follow New York Life, since it addressed the applicability of the federal rule, not our local rule. M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971); see West v. United States, 346 A.2d 504, 506 (D.C.1975) (rejecting proposition that D.C. Court of Appeals “is bound by the interpretation given to similar procedural rules by the District of Columbia Circuit Court”). See also Joyner v. United States, 540 A.2d 457 , 459 n. 1 (D.C.1988) (stating that “federal appellate court construction of comparable federal rules is persuasive authority in interpreting local rules”); Tupling v. Britton, 411 A.2d 349, 351 (D.C.1980) (same); Bazata v. National Insurance Co., 400 A.2d 313 , 314 n. 1 (D.C.1979) (stating that D.C. Court of Appeals is not bound in its interpretation of Superior Court Rules by federal courts interpretations of analogous federal rules, although such interpretation may be persuasive).

Our reliance on New York Life has caused us to state the admissibility test to be whether the diagnosis or opinion is one “upon which competent physicians would not disagree.” Rotan v. Egan, supra, 537 A.2d at 566 (citing Washington Coca-Cola Bottling Works v. Tawney, 98 U.S.App.D.C. 151 , 152, 233 F.2d 353, 354 (1956). Such a test not only deprives the rule of its utility where medical issues are in real dispute, but also places on the trial court, and ultimately on us, trained in law, not medicine, the task of determining whether a diagnosis or opinion is one about which physicians would be in agreement. See, e.g., Jones v. Prudential Insurance Com *1332 pany of America, 388 A.2d 476 (D.C.1978) heroin usage); Smith v. United States, 337 A.2d 219 (D.C.1975) (vaginal pap smears); Christensen v. Gammons, supra (cerebral thrombosis and hypertension). We are ill-suited to such a task.

The approach taken by Fed.R.Evid. 803(6) is far preferable. This rule focuses on trustworthiness which is what the law of evidence should focus on. In my view, it has greater predictability, while retaining the trial court’s right, subject to appellate review, to exclude that which is untrustworthy.

Whatever may be the validity of New York Life where psychiatric opinion is offered by an insurance company to prove that its insured died by suicide rather than by accident (i.e. on the issue of factual causation), its application more generally is, in my view, suspect. Indeed, I find Judge Edgerton’s dissent to be insightful and persuasive. It’s long past time for us to reexamine this area of the law. We should adopt the approach of Fed.R.Evid. 806(6) as have a multitude of states. See for a compilation of state adaptions, Wein-stein’s Evidence, supra, If 803(6) [8] at 803-213-25.

This is not a proper case in which to embark on this task, for I share the view expressed in Chief Judge Rogers’ opinion that, on the facts of this case, given the evidence of mental illness, the diagnosis of PCP intoxication lacked sufficient indicia of trustworthiness to be admissible, and that other portions of the records lack relevance without expert testimony.

. Fed.R.Evid. 803(6) explicitly gives the trial court discretion to exclude records where "the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” See also Fed.R.Evid. 403 (trial court may exclude otherwise relevant evidence if its probative value is "substantially outweighed by the danger of unfair prejudice

. See, e.g., White v. Zutell, 263 F.2d 613 (2d Cir.1959); Terrasi v. South Atlantic Lines, 226 F.2d 823 (2d Cir.1955), cert. denied, 350 U.S. 988 , 76 S.Ct. 475 , 100 L.Ed. 855 (1956).

. See, e.g., Bartkoski v. Pittsburgh & Lake Erie R.R. Co., 172 F.2d 1007 (3d Cir.1949). See also Norwood v. Great American Indem. Co., 146 F.2d 797 (3d Cir.1944), a case decided prior to New York Life.

. See, e.g., Thomas v. Hogan, 308 F.2d 355 (4th Cir.1962) (en banc); Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825 , 79 S.Ct. 42 , 3 L.Ed.2d 65 (1958).

. See, e.g., United States v. Ware, 247 F.2d 698 (7th Cir.1957).

. See, e.g., Glawe v. Rulon, 284 F.2d 495 (8th Cir.1960); Missouri-Kansas-Texas R.R. Co. v. Ridgway, 191 F.2d 363 (8th Cir.1951).

. See, e.g., Lew Moon Cheung v. Rogers, 272 F.2d 354 (9th Cir.1959); Medina v. Erickson, 226 F.2d 475 (9th Cir.1955), cert. denied, 351 U.S. 912 , 76 S.Ct. 702 , 100 L.Ed. 1446 (1956).