[WSBARP] Off Topic Question

[scott at scottgthomaslaw.com]

In addition, ER 702 governs opinions of experts and you can't back door it
by putting in medical records containing opinions about medicine or the
client without a doctor.  ER 703 - Bases of expert opinions - CAN BE
inadmissible hearsay  so experts could testify based on the records but the
records don't come in unless to impeach. And ER 801 - It is hearsay unless
it meets 801 (d)(2).  Medical records do not meet that test - it is not the
party's statement; it is not a statement the plaintiff has adopted or said
was true; it is not a statement by the party's agent or servant with
authority to make the statement.

 

 

 

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Friday, January 28, 2022 12:46 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Off Topic Question

 

I think so on evidentiary basis-lack of foundation. Who is going to testify
from personal knowledge as to the authenticity and completeness and true
source of the records, or otherwise satisfy the authenticity requirements of
ER 901? I assume the "third party" is not the records custodian, and I don't
think having documents handed to you from an office is sufficient "personal
knowledge" to authenticate. Also there are the typical hearsay objections to
the contents of the records (though for medical records that is limited by
scope of ER 803(a)(4)).

 

Note that if they use the pre-trial admissibility notice procedure under ER
904, it will be important to object to authenticity, hearsay, etc. in
response, but the stakes go up because related fees and costs can be imposed
if there's no reasonable basis to object to authenticity. See ER 904(c)(1).

 

Sincerely,

 

Eric

 

Eric C. Nelsen

Sayre Law Offices, PLLC

1417 31st Ave South

Seattle WA 98144-3909

206-625-0092

eric at sayrelawoffices.com <mailto:eric at sayrelawoffices.com> 

 

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From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
<wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com> > On Behalf Of
Jeff at bellanddavispllc.com <mailto:Jeff at bellanddavispllc.com> 
Sent: Friday, January 28, 2022 11:51 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com
<mailto:wsbarp at lists.wsbarppt.com> >
Subject: [WSBARP] Off Topic Question

 

Unrelated Third party obtains medical records from patient's doctor.
Forgetting the HIPPA issue with the medical provider, can't the patient
object to them being used in a court proceeding?

 

Jeff Davis

 

W. Jeff Davis

BELL & DAVIS PLLC
P.O. Box 510

720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129 
Fax: (360) 683.1258 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 
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