dissenting. The majority opinion reverses because “the trial court abused its discretion in admitting the hospital record into evidence.” It is difficult to squarely join issue with the majority opinion because the point of appeal is not about admitting a hospital record into evidence, but rather it is about the admissibility of questions and answers contained in the deposition of Dr. J.C. Callaway, plaintiff Kenneth Benson’s orthopedic surgeon.
The parties agreed to take the evidentiary deposition of Dr. Callaway because he would be unavailable to testify on the scheduled trial date. The deposition was to constitute a part of plaintiffs’ case-in-chief, and, at trial, it was read into evidence for that purpose. In taking the deposition, plaintiffs’ counsel asked about plaintiff Kenneth Benson’s condition when he was initially brought into the emergency room of the hospital. After a few questions, and without objection from the defendant, plaintiffs’ counsel asked, “Did you take a history from him at that time?” Dr. Callaway responded, “As best I could with his injuries and all.” On cross-examination, after the plaintiffs’ attorney had opened the door, the defendant’s attorney asked additional questions about that history. Subsequently, plaintiffs’ attorney filed a motion objecting to the questions and answers about the medical history. See ARCP Rule 32(b). The motion identified by page and line the questions and answers to which plaintiffs objected. The trial court carefully considered each objection and separately ruled on the admissibility of each. Some objections were sustained, while others were overruled. In this point of appeal, the Bensons contend the trial court erred in overruling some of the objections and allowing the jury to hear the answers.
We have often set out the standard of review for a case of this kind: A trial court has discretion in admitting evidence, and, on appeal, we will reverse a trial court’s ruling on the admissibility of evidence only in the case of abuse of that discretion. Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992). That standard should be applied in this case.
The facts surrounding the trial court’s ruling are as follows. After the deposition had been transcribed, plaintiffs filed their initial motion to exclude the questions and answers as follows: “Plaintiffs would move to exclude the following testimony of Dr. J.C. Callaway for the reasons of hearsay; page 20, line 17; page 20, lines 21-24; page 21, lines 2-8; page 6, lines 9-25; page 15, lines 5-8; page 25, lines 13-19.” In the motion, plaintiffs did not cite a rule of evidence, nor did they cite a single case to the trial court. The abstract does not reflect that plaintiffs filed a brief in support of the motion. The complete objection was contained in the motion, and that was the sole word “hearsay.”
Later, plaintiffs amended their motion as follows: “The Plaintiffs would additionally designate the following testimony of Dr. J.C. Callaway to be excluded: page 21, lines 9-25; page 22, lines 1-3.” Again, neither a rule of evidence nor a case was cited in the motion, nor was a supporting brief filed. The parties did not make an oral argument to the court, so the plaintiff did not supply any additional citations.
The abstract does not reflect that the trial court ever ruled on the motion to exclude the specific questions and answers, and, consequently, we might affirm solely on that basis. Linnell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). Even so, I would not do so. Rather, I would go to the record, examine the rulings, reach the merits, and affirm the rulings of the trial court because the trial court did not abuse its discretion.
While plaintiffs’ abstract does not reflect that they filed a brief in support of their motion, the record reflects that they did do so. The record discloses that they filed a brief and objected to the admission of the questions and answers on the ground that Dr. Callaway was not certain who gave him the medical history. No other ground for exclusion was ever argued to the trial court. In response to that one argument, the trial court ruled:
These motions dealt with the testimony of Dr. J.C. Call-away, who will be presented to the jury by deposition. Specifically, those exceptions dealt with Dr. Callaway’s testimony on pages 6 of the deposition, page 15 of the deposition, page 20 of the deposition, page 21 of the deposition, page 22 of the deposition, and page 25 of the deposition.
The Court from the motions did some preliminary research and caused rulings to be presented and made. Basically, the Court relied on the Arkansas Rules of Evidence, Rule 803(4), which deals with diagnosis or medical information taken by the medical care provider and Rule 803(6) which deals with recorded statements and business records.
The Court feels that any evidence, either admitted or excluded, would have to be, particularly with regard to Dr. Callaway’s statements, reasonably relied on and reasonably pertinent to the diagnosis or treatment.
There are several authorities for that and the court founded it’s rulings on Huls v. State, 27 Ark. App. 242. Although a criminal case dealt with these statement or statements and I think in that case it was the statement of a victim concerning the defendant throwing something at her and busting her tooth. The court felt that was not necessary because whether it was thrown at her or whatever the situation was, it wasn’t necessary for the purpose of diagnosis or treatment.
The second was United States Iron and Steel, 636 Fed. 2d, 177, an 8th Circuit case [United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)]. It gave the test of this which hopefully the Court is using.
The Court then reviewed the depositions and on page 6, lines 9 through 25, granted the motion to exclude on the basis that it was not certain to the court or from the deposition who the declarant was, who the source of the statement was received from, that this statement made by Dr. Callaway would be at best speculative, not reliable and not trustworthy.
Secondly, on page 15 the testimony of Dr. Callaway dealt with social security. That is a collateral source and the Court feels that that should be excluded.
Finally, on pages 20, 21, 22, and 25, [the basis of this appeal] the Court felt that all of this or all of these statements by Dr. Callaway were elicited in the questioning of Dr. Callaway and basically he says that the source of these statements, he assumed were from Mr. Benson and he further stated “I would not know where else I got it.”
I think that that was written down on his discharge summary or the statements relating thereto from the discharge summary do have reliability, do have trustworthiness and are admissible under 803(4) and 803(6) and specifically, on page 20 there were lines 17 and lines 21 and 24; on page 21 line 8; on page 22 lines 1 through 3; and on page 25 lines 13 through 19. I think that those should not be excluded arid should be admitted as testified to by Dr. Call-away.
The majority opinion takes direct issue with the trial court’s finding of fact and implies that there was no evidence whatsoever that plaintiff Kenneth Benson gave the history. The majority opinion states: “In the absence of any evidence attributing the statement to Mr. Benson or someone in a special relationship with him, or that Dr. Callaway relied on this statement to fashion his diagnosis or treatment of Mr. Benson, we hold that the trial court abused its discretion in admitting the hospital record into evidence.” That statement reflects the issue between the majority opinion and this dissent. The issue is whether the trial court abused its discretion in ruling that there was sufficient evidence to allow Dr. Callaway to testify about the medical history.
The majority opinion discusses other issues, and they can be quickly laid aside. We have often written that we will not consider arguments raised for the first time on appeal. Babbitt v. Quick-Way Lube & Tire Inc., 313 Ark. 207, 853 S.W.2d 273 (1993). The majority opinion goes far beyond the one issue raised in the trial court. The majority opinion reverses in part because of a Rule 403 weighing of probative worth against the danger of prejudice. The notion that a 403 weighing should have been conducted is raised for the first time in the majority opinion. Plaintiffs did not ask for a 403 weighing, and the argument should not be considered for the first time on appeal. To do so is very unfair to appellee, for it has not been given the opportunity to make a record on the issue.
Additionally, the majority opinion holds, in part, that the defendant, as a matter of law, had the burden of showing the admissibility of the evidence and that it failed to meet that burden. The majority opinion cites a case decided before the adoption of the Uniform Rules of Evidence. Arkansas State Highway Comm’n v. Roberts, 246 Ark. 1216, 441 S.W.2d 808 (1969). Even though the Arkansas Rules of Evidence do not address the burden of proof, the statement is subject to question, because all relevant evidence is now admissible unless excluded by a rule of evidence or by law. A.R.E. Rule 402. Under the Rules it would seem that the opponent of evidence must invoke some rule of evidence that excludes the evidence, and, if it is applicable, then the proponent must make the evidence satisfy the rule. Regardless of the correct rule about the burden of proof, the argument should not be considered, because, like the others, it is raised for the first time on appeal. This part of the holding in the majority opinion should also be laid aside.
There is only the one issue before this court. The record of evidence on that issue is just as the trial court found: On direct examination, plaintiffs’ counsel asked about plaintiff Kenneth Benson’s condition when he was brought to the hospital. A few questions later plaintiffs’ counsel asked Dr. Callaway the following:
Q Did you take a history from him at this time?
A As best I could with his injuries and all.
Later, on cross-examination, defendant’s counsel asked, and the doctor answered:
Q Yes. You spoke earlier of history, the history that you have, I believe you said, such as you were able to obtain or something like that. Is history important to you in treating a patient?
A In the extent in this case or in many cases, it was in the emergency room, that the nature of the injury and the mechanism of injury is sometimes important in assessing the severity of the injury. A high velocity crush injury is going to be much more severe even though the x-rays and appearances may be very similar to a low velocity injury in the emergency room.
Q So you try from whatever source you can to get the best information you can about what caused the injury, is that correct?
A At this time, of course, there wasn’t much—
Q I’m not taking about this particular case.
A Yes, we try to ascertain how much the patient was injured and particularly the mechanism of injury and whether it was a high velocity or low velocity type injury.
Q In your discharge summary, which you dictated October the 7th, 1984, you wrote, quote, “The patient is a 22 year old white male in an oil tank explosion.” I think maybe the word “injured” is left out, “. . .in an oil tank explosion, fell from the catwalk around the oil tank down to the ground sustaining a fracture of the left femur, a com-minuted fracture of the lateral femoral condyle on the left and posterior dislocation of the right hip,” unquote. Do you know who told you that he fell from a catwalk?
A I assume that is came out in the subsequent, when he was able to talk about it, or someone told us but —
Q You wrote this on October 7th, after the accident on September 24th, and that was the time he was discharged from the hospital. Do you assume that Mr. Benson gave you this information?
A I would not know where else I would have gotten it, unless a relative or somebody — I’m sure that once he was able to discuss it, we discussed the mechanism of injury and that may be where that came from, but at this point, I don’t have any documentation to tell me how I got that information.
Q But you did write on October 7th, 1984, that “he fell from the catwalk around the oil tank down to the ground,” is that correct?
A If that is what it says, it is correct as far as I know.
Q Well, would you like at your—
A I read it just a few minutes ago.
The trial court read the foregoing questions and answers, examined them in light of the sole objection regarding uncertainty about who gave the information, and ruled “basically he says that the source of these statements, he assumed were from Mr. Benson and he further stated T would not know where else I got them.’” The trial judge thought the doctor’s testimony about the history was certain enough to allow the evidence to be admitted, and the weight to be given the evidence would be left up to the jury. It is inconceivable that the majority opinion says the ruling constituted an abuse of discretion, and, in addition, the ruling has a basic fairness about it. On direct examination, plaintiffs’ counsel asked whether Dr. Callaway had taken a history from Kenneth Benson, and, after finding that he had done so, questioned him on the subject. On cross-examination, defendant’s counsel asked about the details of the history. Plaintiffs objected to the detailed information. The trial court read the deposition and recognized that the jury would hear plaintiffs’ question about taking a history and the answer that the doctor had taken a history from the plaintiff Kenneth Benson, but would never hear the details of that history. It was obvious that plaintiffs wanted the jury to know that the doctor had taken a history, but they did not want the jury to know what it was. In comparable cases we have said that one who opens up a line of questioning should not be heard to complain of that for which he was responsible. Bull Shoals Community Hosp. v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1992). That is only fair.
In summary, the trial court had discretion in allowing the relevant testimony into evidence, and the trial court did not abuse its discretion in allowing the testimony. Accordingly, I dissent from the majority opinion.
Hays, J., joins in this dissent.