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In People v. Dean (May 26, 2009) 09 C.D.O.S. 6352, the defendant
appealed a judgment and order committing him to the State Department
of Mental Health as a sexually violent predator (SVP). The SVP
commitment and appeal are civil proceedings. Part of the Dean’s
appeal was based on his contention that the State’s medical experts
testified—over Dean’s objections—about matters that were otherwise
inadmissible hearsay. Dean contended that by allowing that testimony
to come in, the court abused its discretion and deprived him of a
fair trial. This decision is of interest because it cites to Garibay
v. Hemmat (2008) 161 Cal.App.4th 735.
On appeal, Dean argued that the State’s experts were allowed to
testify to inadmissible hearsay in three different subject areas,
one of which was “information gleaned from the records of ASH
[Atascadero State Hospital] and other institutions.” Interestingly,
according to Footnote 5, “[t]he respective medical records were not
marked as exhibits, nor were they admitted into evidence pursuant to
Evidence Code sections 1271 [Business Records exception] or 1272
[Absence of Record as Evidence]. Hospital and prison records, if
properly authenticated, fall within the umbrella of the business
record exception.” The issues raised by Dean would not have existed
had the State moved the ASH and other records into evidence under
the Ev. C. 1271.
Despite the fact the records were not authenticated or admitted, of
the experts’ specific references to and reliance on them the court
said:
As a general rule, out-of-court statements offered to support an
expert’s opinion are not hearsay because they are not offered for
the truth of the matter asserted. Instead, they are offered for the
purpose of assessing the value of the expert’s opinion.
The court observed, however, that the State’s experts’ “extensive”
testimony as to the details of the ASH and other institutional
records was “problematic.”
As earlier indicated, “An expert may generally base his opinion on
any ‘matter’ known to him, including hearsay not otherwise
admissible, which may ‘reasonably…be relied upon’ for that purpose.
(Cite omitted). Here, Drs. Goldberg and Starr could reasonably rely
on and base their opinions on the ASH and other institutional
records in forming their opinions. (See Garibay v. Hemmat (2008) 161
Cal.App.4th 735, 743 [hospital records can be used as a basis for
expert opinion.].)
The court did find that the State’s experts’ testimony about the
details of the ASH and other institutional records was inadmissible
hearsay. Also in Footnote 5, the court cited to Garibay for the
proposition that a proper foundation laid by authentication of the
records in conformance with the Evidence Code “ensures that the
entries are made by personal knowledge, not on secondhand
information days following the act, condition or event.” (Garibay v.
Hemmat, supra 161 Cal.App.4th at p. 742.)
While noting this is the preferred route of introducing medical
record evidence relied on and referred to in detail by medical
experts, the court did say that “Experts can properly and credibly
place before the jury the matters they relied upon and the nature of
those matters, without testifying to the specific details of the
documentary entries not otherwise admitted into evidence.” However,
an expert’s inability to point to specific entries or items referred
to and relied upon in reaching his or her opinions may affect his or
her credibility.
The court in Dean found that while the trial court erred in letting
the otherwise inadmissible evidence in, the error was harmless
because the “court more than once gave limiting instructions to the
jury.” One such instruction was “[A]n expert witness may testify
that in reaching their conclusions as expert witnesses they
considered statements made by other persons and sources. Now you may
consider those statements only to evaluate the expert’s opinion. Do
not consider those statements as proof that the information
contained in the statements is true or false.” In addition, much of
the evidence that came in through the experts about what the ASH
records showed had happened at Atascadero, also came in through
Dean; he admitted he did not finish the treatment program, was
abusive to the female staff and possessed drugs during his
confinement.
Though the court in this case found the error was harmless, it did
refer to and rely on the principles set out in Garibay regarding the
importance of authentication and admission of medical and other
institutional records used by experts in support of their opinions.
This appears to be particularly true if specifics of the records
will be testified to and opined upon, rather than generically used
to form an overarching opinion. In a medical negligence setting,
where the expert’s opinions are always dissected to determine the
basis for the opinion and what the expert relied upon in forming an
opinion, under Garibay, each part of a medical record used by and
relied upon by the expert should be admitted (whether in the MSJ—as
in Garibay—or other setting).
1 - Though in Footnote 6, the court cautioned that a limiting
instruction may not remedy the problem or prejudice caused by
admission of the hearsay evidence.
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