Larsen v. Decker

• Decision Date: 17 February 2000
• Docket Number: No. 1 CA-CV 99-0414.,1 CA-CV 99-0414.
• Citation: 995 P.2d 281,196 Ariz. 239
• Parties: Karen H. LARSEN, a single woman, Plaintiff-Appellant, v. Robert C. DECKER, a single man; Robert C. Decker and CATHY Decker, husband and wife, Defendants-Appellees.
• Court: Arizona Court of Appeals

995 P.2d 281

196 Ariz. 239

Karen H. LARSEN, a single woman, Plaintiff-Appellant, v. Robert C. DECKER, a single man; Robert C. Decker and CATHY Decker, husband and wife, Defendants-Appellees.

No. -0414.

Court of Appeals of Arizona, Division 1, Department E.

February 17, 2000.

As Amended February 22, 2000.

Stanley David Murray, P.C. by Stanley David Murray, Phoenix, Attorneys for Appellant.

David M. Bell, J. Gregory Cahill, Phoenix, Attorneys for Appellees.

OPINION

TOCI, Judge.

¶ 1 Karen H. Larsen appeals from the judgment awarding her damages resulting from an automobile accident and from the trial court's denial of her motion for new trial. She contends that the court erred in excluding some of her medical records and bills and a Social Security Administration ("SSA") report finding her permanently disabled after the auto accident. Specifically, she argues that Rule 803(8)(C), Arizona Rules of Evidence ("the Rule"), does not distinguish between factual findings and conclusions for purposes of the admissibility of a public agency report. Although we agree and reject the contrary dictum in Davis v. Cessna Aircraft Corp., 182 Ariz. 26, 36, 893 P.2d 26, 36 (App.1994), we conclude that the trial court did not err in excluding the SSA report on the grounds of unreliability. We further find no abuse of discretion in the exclusion of the medical records and no error in the ruling on her request for new trial. We therefore affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Larsen fell from her bicycle in November 1993, and suffered a broken hip and elbow. In September 1994, Robert C. Decker's car collided with her car at an intersection, and she again sustained a number of injuries.

¶ 3 Decker admitted liability, and trial was confined to Larsen's damages attributable to the auto accident. Although no doctor testified, deposition testimony of Doctors Bodell, Calkins, Calderone, and McLean was presented to the jury.

¶ 4 Larsen claimed a broken elbow, a left shoulder injury that required surgery, and aggravation of her hip injury. She admitted that no spinal damage resulted from the auto accident, but she claimed very significant and continuing back pain.

¶ 5 Decker disputed a connection between her shoulder complaints and the auto accident because Larsen had fallen on the left arm and hand in the bicycle accident, had reported shoulder pain before the auto accident, and diabetes might have contributed to her shoulder problems. Decker also disputed whether the accident had aggravated the prior hip injury and suggested that the back pain was due to aging and degenerative conditions unrelated to the accident. Although Larsen requested damages ranging from $150,000 to $300,000, the jury awarded $24,040.

II. DISCUSSION

A. Standard of Review

¶ 6 We review the trial court's evidentiary rulings for a clear abuse of discretion; we will not reverse unless unfair prejudice resulted, see Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917 P.2d 222, 235 (1996),

or the court incorrectly applied the law. See Conant v. Whitney, 190 Ariz. 290, 292, 947 P.2d 864, 866 (App.1997). We view the excluded evidence most favorably to the proponent. See id.

¶ 7 Larsen argues, however, that we should exercise de novo review because interpretation of a rule or statute is a question of law, and the trial court misinterpreted the Arizona Rules of Evidence, citing Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.1996) (civil procedure rule's interpretation is a legal issue reviewed de novo). Decker counters that the court's rulings were not based on interpretations of the evidentiary rules but merely on findings of insufficient trustworthiness for the SSA records and of inadequate foundation for some of the medical records and bills.

¶ 8 Before ruling on the proffered evidence, the trial court had to read and understand the evidentiary rules. The court, however, is entrusted with broad discretion in the application of those rules to specific items of evidence. Here, the court had to determine whether the SSA records were sufficiently trustworthy and whether sufficient foundation had been laid for admission of certain medical records. We review these determinations for an abuse of discretion. See Gemstar, 185 Ariz. at 506,

917 P.2d at 235.

B. Exclusion of the SSA Report

¶ 9 Hearsay evidence is excluded from trial because it cannot be subjected to cross-examination and cannot be probed for possible errors in perception, memory, sincerity, or clarity. See Morris K. Udall et al., Law of Evidence § 121 (3d ed.1991). The hearsay exception in Rule 803(8)(C) assumes that public agency reports avoid these problems. ¶ 10 The trial judge, however, excluded the SSA report finding Larsen disabled from working because it was the opinion "of somebody who's not even a medical person" and because it was not "trustworthy enough" and the evidence relied on was not subject to cross-examination. Rule 803(8) provides, "[u]nless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, [or] statements ... in any form, of public ... agencies, setting forth ... factual findings resulting from an investigation made pursuant to authority granted by law" may be admitted as an exception to the hearsay rule. (Emphasis added.)

¶ 11 Larsen argues that the SSA report and findings fall within the Rule's parameters because the report is by a public agency on a matter it had a legal duty to report upon after an investigation made pursuant to legal authority. She analogizes to State ex rel. Miller v. Tucson Associates Ltd. Partnership, 165 Ariz. 519, 519-20, 799 P.2d 860, 860-61 (App.1990), a case in which a United States Geological Survey report was admitted although the author did not testify. Division Two of this court affirmed and overturned a prior holding that opinions were not admissible under Rule 803(8)(C), citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). Id. at 520, 799 P.2d at 861.

¶ 12 Larsen notes, however, that Davis, 182 Ariz. at 36, 893 P.2d at 36, adopted a contrary view of the Rule. In Davis, we held that a federal statute limited the use of a National Transportation Safety Board report as evidence in a damages action arising from an airplane crash. Id. at 34, 893 P.2d at 34. In dictum, we also suggested that Rule 803(8)(C) distinguished between factual findings and conclusions. Id. at 36, 893 P.2d at 36. We agree that Rainey's more expansive reading allowing admission of both facts and opinions or conclusions is the better interpretation. We therefore reject Davis' suggestion that opinions in public agency reports are not admissible.¹

¶ 13 Nevertheless, the SSA finding that Larsen was permanently disabled from working and entitled to widow's benefits was based on the physical injuries suffered in both accidents as documented by her medical records and on her subjective pain complaints. The trial court's concern here appeared to be that the SSA proceedings were essentially ex parte, that the Administrative Law Judge ("ALJ") was not qualified as a medical expert, and that none of Larsen's treating doctors had testified and been cross-examined in those proceedings.² The court concluded that the report was not sufficiently reliable under these circumstances.

¶ 14 We have found no Arizona case on point, but we do not find Larsen's citation to Goodman v. Boeing Co., 75 Wash.App. 60, 877 P.2d 703, 714-15 (1994), persuasive. There, a Washington court affirmed admission of a SSA finding that the plaintiff was disabled in her suit against her former employer for handicap discrimination. Washington's evidence rule differs significantly from ours, however, and the trial court had carefully examined the disability report, redacted certain parts, invited further redaction, and noted that the report relied on evidence already admitted at the trial. Other courts have excluded SSA findings. See Jones v. Miller, 964 S.W.2d 159, 162 (App. Tex.1998)

(SSA notice granting plaintiff disability benefits was properly excluded as unsworn incompetent hearsay in her medical malpractice suit); Keller v. Regan, 212 A.D.2d 856, 622 N.Y.S.2d 612, 614 (1995) (SSA permanent disability findings excludable in administrative proceeding for disability retirement benefits).

¶ 15 We have also looked at federal court interpretations because our Rule is very similar to Federal Rule 803(8). See Tucson Assocs.,165 Ariz. at 520,799 P.2d at 861 (we may consider federal cases when the federal rule is similar). For example, some courts have held that a lack of opportunity for cross-examination in conjunction with a public agency report does not necessarily show untrustworthiness. See In re Japanese Elec. Prods., 723 F.2d 238, 268 (3d Cir.1983),

rev'd on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (reports from evidentiary hearings where no cross-examination occurred may be reliable if prepared under a legally imposed duty and standards). Others have held that lack of cross-examination, though not per se reason to exclude a report, is an element of trustworthiness to consider. See Wilson v. Attaway, 757 F.2d 1227, 1245 (11th Cir.1985).

¶ 16 At least one court has rejected the argument that an author's or investigator's lack of expertise affects admissibility. See Clark v. Clabaugh, 20 F.3d 1290, 1294-95 (3d Cir.1994)

(police report on racial violence is presumed admissible; unlike Federal Rule 702, nothing in Federal Rule 803 requires the writer be an expert). Another has upheld exclusion of an employment commission report denying a worker unemployment benefits for having voluntarily left her job because of the report's "prejudicial effect" and because the parties to the report were available to testify in the later constructive discharge suit. See Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1357-58 (4th Cir.1995).

¶ 17 In this instance, we cannot say that the...