Evidentiary — continued from Page 56
are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact.”
(Id., at pp. 742-743.) A motion for summary judgment
that does not meet the requirements set forth in Garibay should be opposed on that basis. Although primarily a trap for the
unwary defense lawyer, plaintiffs’ counsel also need to be mindful that opposition to a motion for summary judgment must conform to the same rules of evidence and burden of production. If plaintiff ’s attorney submits a declaration in opposi- tion to the motion, it will be necessary to attach and authenticate the medical records on which plaintiff ’s expert relied in formulating the opinions contained in that declaration. If the requisite medical records are attached to the defendant’s moving papers and are properly authenti- cated, it should be sufficient for plaintiff ’s expert to state that he reviewed those records that are before the court and that they form the basis for his opinion. Any additional records on which plaintiff ’s expert relied, however, must be attached to the opposition and be authenticated.
Note: To authenticate a writing, the pro- ponent of the evidence must have a witness testify that the writing is what the propo- nent says it is or establishes its authenticity by “any other means provided by law.” A stipulation as to authenticity is sufficient for this purpose. Typically, such a stipula- tion will be agreed to between the parties before trial of a medical malpractice case in order to avoid the time and expense of bringing in custodians of record to testify. For the purpose of summary judgment, the records may be authenticated by the plead- ings. If plaintiff ’s expert relies on defen- dant’s medical chart, which was produced in a verified response to a discovery request, that should suffice for the purpose of authentication, if that information is contained in the attorney’s declaration. See Comment to Evid. Code, § 1400 and Code
Civ.Proc., § 446.
Evidentiary issues at trial
•Medical records As noted previously, medical records
can be introduced into evidence under the business-records exception to the hearsay rule, once they are authenticated. Frequently, opposing counsel will stipu- late to their authenticity. (Evid. Code, §
1271, People v. Moore (1970) 5 Cal.App.3d 486).
However, properly-authenticated
medical records can be received into evi- dence as “business records” only insofar as they record personal observations of the attending physician or pertinent statements of a patient’s history which the physician used in reaching his profes- sional opinions. (Springer v. Reimers (1970) 4 Cal.App.3d 325.) Opinions contained in the medical
record are not admissible. Opinions or conclusions are not “the record of an act, condition or event” within the meaning of Evidence Code section 1271. (People v. Reyes (1974) 12 Cal.3d 486.) An expert may rely on opinions set forth in the medical records, but that does not make the opinion admissible. If an expert on the stand attempts to read into the record the opinion of another doctor from the medical records, a hearsay objection should be asserted and sus- tained. Before the medical records go to the jury, opinions of doctors who did not testify at trial should be redacted for the same reason. Consider a motion in lim- ine if it appears that this may be an issue at trial.
See Evidentiary, Page 60
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