Merrow v. Bofferding

Boyle, J.

(dissenting). Because I find that the trial court did not abuse its discretion in admitting the medical record evidence, I dissent.

The Court reviews a trial court’s determination of the admissibility of evidentiary issues for an abuse of discretion.1 In reviewing evidentiary issues, we are mindful that

“close questions arising from the trial judge’s exercise of discretion on matters concerning the admission of evidence do not call for appellate reversal because the reviewing justices would have ruled differently. Reversal is warranted only if the resolution of the question by the trial court amounted to an abuse of discretion. The decision upon a close evidentiary question by definition ordinarily cannot be an abuse of discretion.”[2]

The second hearsay event, the oral statement made to the physician, is properly admitted as a nonhearsay party admission under MRE 801(d)(2). An admission is “simply words or actions inconsistent with the *637party’s position at trial, relevant to the substantive issues in the case, and offered against the party.”3

While most hearsay exceptions are grounded on a probability of trustworthiness, “the admissibility of an admission made by the party himself does not rest upon a notion that the circumstances in which it was made furnish the trier of fact with adequate means of evaluating the statement.”4 This is because the out-of-court declarant, the party-opponent, “has but to take the stand” to subject the statement “to the safeguard of cross-examination.”5 The Advisory Committee Notes to FRE 801(d)(2) state:

Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. ... No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility.

Whether plaintiff made the statement at issue is a disputed preliminary factual question. As with any *638preliminary factual question of admissibility under MRE 104(a), the condition is met if it is more likely than not that the fact occurred. Disputed preliminary questions of fact are resolved by a preponderance-of-the-evidence standard.6 hi making the determination, the trial judge may consider all available evidence, including otherwise inadmissible evidence.7

The contested statement in the medical record, which on its face purports to have been made by a person with knowledge of the facts, is itself evidence that the statement was made by the plaintiff.8 There is also evidence in the context of the medical record supporting the contention that Mr. Merrow was the declarant.9 The medical record reports that the plaintiff was alert and oriented at the time the history and physical examination was conducted. Furthermore, the testimony of Ms. Leptich revealed that hospital *639protocol required that the physician obtain the medical history directly from the patient.10 Under a preponderance-of-the-evidence standard, there is sufficient evidence showing that the statement was made by Mr. Merrow. Factors cited by the majority, such as the administration of narcotic analgesics, are relevant only to the weight of the evidence, not to its admissibility.

Assuming arguendo that the admission of the contested statement was erroneous, we note that the statement was admitted by the trial court and argued by the parties pursuant to MRE 803(6). The majority properly finds that the medical record is admissible *640under the business records exception. However, the multiple hearsay issue was not raised by the opponent of the evidence. MRE 103 requires that evidentiary errors affect a “substantial right” of a party;11 in addition, “a timely objection or motion to strike” must appear in the record, “stating the specific ground of objection, if the specific ground [is] not apparent from the context.”12 Even if the admission of the statement was erroneous, the issue of the second level of hearsay was not preserved for appellate review.13

*641The majority further errs in evaluating the admissibility of the out-of-court statement under MRE 613(b) because the rule is simply inapplicable to party admissions. The plain language of the rule states that “[t]his provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).”14 This is because admissions are substantive evidence, not merely impeaching statements, and “no preliminary foundation need be laid by examining the declarant concerning the admission . . . .”15

Because I believe that there is competent evidence in the record and that the trial court did not abuse its discretion in admitting the contested statement in the medical record, I would reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

Weaver, J., concurred with Boyle, J.

People v Adair, 452 Mich 473, 485; 550 NW2d 505 (1996), citing People v Perkins, 424 Mich 302, 308; 379 NW2d 390 (1986). People v Bahoda, 448 Mich 261, 289, n 57; 531 NW2d 659 (1995), explained the abuse of discretion standard:

“The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an ‘abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” [Id., quoting Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).]

Bahoda, supra at 289, quoting People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982).

2 McCormick, Evidence (4th ed), § 254, p 142.

4 Weinstein & Berger, Evidence, ¶ 801(d)(2)[01], p 801-232. 31 Graham, Federal Practice & Procedure (1997 interim ed), § 6715, p 149, n 3. “Under this view, admissions need not satisfy the traditional requirement for hearsay exceptions that they possess circumstantial guarantees of trustworthiness. Rather, admissions are simply classed as nonhearsay and outside the framework of exceptions to the hearsay rule.” See Peoples v State, 928 SW2d 112, 117 (Tex App, 1996); State v Palmer, 507 NW2d 865 (Minn, 1993).

5 Weinstein, Federal Evidence (2d ed), § 801.20[1], p 801-36.

Bourjaily v United States, 483 US 171, 175; 107 S Ct 2775; 97 L Ed 2d 144 (1987) (“We are therefore guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof. . . . Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case ... or a civil case. . . . The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration”).

MRE 104(a) states that “[i]n making its determination [the court] is not bound by the Rules of Evidence except those with respect to privileges.”

See Bourjaily, n 6 supra, pp 176-181. Bourjaily held that Rule 104(a) permits a court to consider the statements sought to be admitted in determining whether the preliminary requirements of a rule have been met. See also United States v Martinez de Ortiz, 907 F2d 629, 635 (CA 7, 1990) CBourjaily holds that Rule 104[a] abolished the anti-bootstrapping rule, and the evidence comfortably satisfies the preponderance standard under Rule 104[a]”).

Within the same document, under the “past history” section of the record, it states that “[h]e denies any medications” and “[h\e denies any prior surgeries.” (Emphasis added.)

The majority disagrees that the preponderance of the evidence standard has been met because the “only” evidence is the statement itself and the testimony of Ms. Leptich regarding the hospital protocol that a patient history be obtained directly from the patient, as required by jcho regulations. However, where a hospital employee testifies “that the ‘patient history’ was derived from the patient’s (plaintiffs) statements” to a physician, there is sufficient evidence to “support a finding that the plaintiff made the statement . . . .” Bradbury v Ford Motor Co, 123 Mich App 179, 188; 333 NW2d 214 (1983), modified on other grounds 419 Mich 550; 358 NW2d 550 (1984). Contrary to the majority’s reading of the above-quoted passage, I fail to see that the hospital employee in Bradbury had actual firsthand knowledge that “the statements in the history were actually made by the patient . . . .” Ante at 633, n 14. I read that portion of the opinion to hold that where a patient history is derived from the patient as a matter of customary hospital procedure, it is sufficient to establish that the patient is more likely than not the source of information.

There is also evidence in the context of the record itself, aside from the contested statement, tending to show that the patient was alert, oriented, and an active participant in the history and examination. The majority seems to insist on a higher quantum of proof that is not warranted by MRE 104. See Bourjaily, n 6 supra. See also Huddleston v United States, 485 US 681; 108 S Ct 1496; 99 L Ed 2d 771 (1988).

The fact that the document does not attribute the statement to the plaintiff is not outcome determinative. Actual ascription would certainly be additional evidence tending to establish the preliminary fact, but does not diminish the utility of the other factors in finding that it is more likely than not that the plaintiff made the statement. Furthermore, there is nothing within either MRE 803(6) or 801(d)(2) that would require that Dr. Yasuda be deposed in order to render the contested statement admissible.

“[T]he plain error doctrine should be applied only where the ‘error [is] so serious and flagrant that it goes to the very integrity of the trial.’ ” Brenner v World Boxing Council, 675 F2d 445, 456 (CA 2, 1982). “Plain error ... is a rare species in civil litigation; it will be found only ‘to prevent a clear miscarriage of justice.’ ” Gay v P K Lindsay Co, Inc, 666 F2d 710, 712, n 1 (CA 1, 1981). McCormick notes that reversals based on plain error are rare in civil cases because “liberty and life are not involved.” 1 McCormick, Evidence (4th ed), § 52, p 212. “Many of the reasons given for the use of the ‘plain error’ doctrine are simply not applicable in civil cases.” 21 Wright & Graham, Federal Practice & Procedure, § 5043, p 236.

MRE 103(a)(1). Where an objection is not raised below, it is waived on appeal. People v Furman, 158 Mich App 302; 404 NW2d 246 (1987); see also People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994).

McCormick notes that “[i]f the administration of the exclusionary rules of evidence is to be fair and workable the judge must be informed promptly of contentions that evidence should be rejected, and the reasons therefor. The initiative is placed on the party, not on the judge." 1 McCormick, n 11 supra, § 52, p 200 (emphasis added).

Even if one were to further assume that the issue was preserved for appellate review, I believe that the case should not be reversed because there has been no miscarriage of justice. See n 11. The plaintiff, the purported out of court declarant, testified, was cross-examined, and wholly denied making the statement. Another medical record made after surgery containing a hearsay statement made by the plaintiff to a nurse that supported plaintiff’s version of the incident was also admitted. Mitigating factors, such as substantial blood loss, the administration of narcotic analgesics, and the fact that the plaintiff was married at the time of the incident were presented to the finders of fact. Under the facts of this case, there has been no miscarriage of justice requiring reversal.

The heading of Rule 613 describes the rule as pertaining to “prior statements of witnesses.” Obviously, plaintiff is not a witness in this case; rather, he is a party. The plain language of the heading, combined with the unambiguous language of the last sentence of MRE 613(b), precludes analysis of the contested statement under this evidentiary rule.

31 Graham, Federal Practice & Procedure, n 4 supra, § 6715, p 151. See United States v Kenny, 645 F2d 1323, 1340 (CA 9, 1981).