Jack Holt, Jr., Chief Justice.
This lawsuit arose when a saltwater tank owned by Shuler Drilling Company (“Shuler”), which was being serviced by Mr. Kenneth Benson, an employee of Arkansas Service Company, exploded, injuring him. Mr. Benson and his wife sued Shuler claiming that the explosion was the result of Shuler’s negligence. A crucial factual question at trial was whether Mr. Benson was on the catwalk on the side of the tank or on the ground near the tank when the explosion occurred. The jury found in favor of Shuler. We reverse and remand.
I. Admission of physician’s discharge summary
A. A.R.E. Rule 803 (4) — Medical Records Exception to Hearsay Rule
For their first allegation of error, the Bensons contend that the trial judge erred in refusing to grant their motion in limine as to certain sections of Dr. Callaway’s deposition relating to his medical records. Dr. Callaway was Mr. Benson’s orthopedic surgeon whose deposition was admitted into evidence in lieu of his live testimony.
Of primary concern is Dr. Callaway’s written discharge summary, which provides in pertinent part: “The patient is a 22 year old white male in an oil tank explosion, fell from the cat walk around the oil tank down to the ground.”
When asked who had informed him that Mr. Benson had fallen from the catwalk, Dr. Callaway spoke in contradictory terms: “I assume that it came out in the subsequent, when he was able to talk about it, or someone told us. . . .1 would not know where else I would have gotten it except from Mr. Benson, unless a relative or somebody — I’m sure that once he was able to discuss it, we discussed the mechanism of injury, and that may be where that came from, but at this point, I don’t have any documentation to tell me how I got that information.” On the other hand he stated: “When opposing counsel asked me about the catwalk fall and that thing, I said I just assumed that Mr. Benson told me that, but I can’t state that with any degree of certainty. I don’t know where we got it, but I didn’t pick it out of the air someplace. Somebody told me, or I got the information from some place.”
In addition, it is unclear from the record when Dr. Callaway was informed that Mr. Benson had fallen from the catwalk. The written history, taken in the emergency room, reflects that Dr. Callaway was not informed at the time of Mr. Benson’s admission that he had allegedly fallen from a catwalk: “The patient is a 21 year old white male involved in an oil field explosion in which he sustained injuries to both arms and both lower extremities. Exact mechanism of injury is not known.” (Emphasis added.) In his deposition, Dr. Callaway explained that he had taken a history from him “as best he could at that time with his injuries and all”
Dr. Callaway acknowledged that it is helpful for him to learn of the cause of a patient’s injuries immediately and stated:
In the extent in this case or in many cases, it was in the emergency room, that the nature of the injury and the mechanism of injury is sometimes important in assessing the severity of the injury. A high velocity crush injury is going to be much more severe even though the x-rays and appearances may be very similar to a low velocity injury in the emergency room.
Yet, Dr. Callaway did not indicate that he had relied upon the information that Mr. Benson had fallen from the catwalk in making his diagnosis or prescribing treatment. Judging from the doctor’s testimony and his case history report, it is readily apparent that Dr. Callaway did not have this information upon Mr. Benson’s admission nor did he utilize it in making his diagnosis and prescribing treatment.
Because of Dr. Callaway’s uncertainty as to who made the statements or when they were made, Mr. Benson filed a motion in limine prior to trial, seeking to exclude portions of testimony contained in Dr. Callaway’s deposition, namely matters relating to Mr. Benson’s cause of injury. The trial court examined his testimony on a line-by-line basis, excluding certain portions but admitting the information relating to his discharge summary which attributed his injury to a fall from the catwalk. We have stated that motions in limine are to enlighten the court and advise counsel of the specific nature of the anticipated evidence so that the court may intelligently act on such motions. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Schichtl v. Slack, 293 Ark. 281,737 S.W.2d 628 (1987). Motions in limine are not ordinarily used to extinguish an entire claim or defense. Rather, they are usually used to prohibit the mentioning of some specific matter, such as an inflammatory piece of evidence, until the admissibility of that matter has been determined out of the hearing of the jury. Schichtl, supra, (citing Lewis v. Buena Vista Mutual Ins. Ass’n, 183 N.W.2d 198 (Iowa 1971)).
It follows, then, that one who offers evidence has the burden of showing its admissibility. See Arkansas State Highway Comm. v. Roberts, 246 Ark. 1216, 441 S.W.2d 808 (1969). When a party asks for a motion in limine to exclude evidence because it is hearsay, the burden is on the “offering party to prove the admissibility of the evidence.” See Robin L. Lafferty, Comment, Motion in Limine, 29 Ark. L. Rev. 215, 226 (1975)(citing Aetna Casualty and Surety Co. v. Finney, 346 S.W.2d 917 (Tex.Civ.App. 1961)). This burden was not met in this case.
Since the introduction of evidence is a matter within the sound discretion of the trial judge, we must determine whether or not he abused his discretion in allowing the discharge summary in evidence before we reverse his findings, and in the absence of abuse of that discretion, we will not reverse. See Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). See Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993); Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992).
In support of their argument that the trial court abused its discretion and committed error in admitting the discharge summary, the Bensons cite A.R.E. Rule 803 (4):
Hearsay exceptions — Availability of declarant immaterial.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensation or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
The Bensons contend that because Dr. Callaway could not say with any certainty when or from whom he had acquired the information that Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
Jack Holt, Jr., Chief Justice.
This lawsuit arose when a saltwater tank owned by Shuler Drilling Company (“Shuler”), which was being serviced by Mr. Kenneth Benson, an employee of Arkansas Service Company, exploded, injuring him. Mr. Benson and his wife sued Shuler claiming that the explosion was the result of Shuler’s negligence. A crucial factual question at trial was whether Mr. Benson was on the catwalk on the side of the tank or on the ground near the tank when the explosion occurred. The jury found in favor of Shuler. We reverse and remand.
I. Admission of physician’s discharge summary
A. A.R.E. Rule 803 (4) — Medical Records Exception to Hearsay Rule
For their first allegation of error, the Bensons contend that the trial judge erred in refusing to grant their motion in limine as to certain sections of Dr. Callaway’s deposition relating to his medical records. Dr. Callaway was Mr. Benson’s orthopedic surgeon whose deposition was admitted into evidence in lieu of his live testimony.
Of primary concern is Dr. Callaway’s written discharge summary, which provides in pertinent part: “The patient is a 22 year old white male in an oil tank explosion, fell from the cat walk around the oil tank down to the ground.”
When asked who had informed him that Mr. Benson had fallen from the catwalk, Dr. Callaway spoke in contradictory terms: “I assume that it came out in the subsequent, when he was able to talk about it, or someone told us. . . .1 would not know where else I would have gotten it except from Mr. Benson, unless a relative or somebody — I’m sure that once he was able to discuss it, we discussed the mechanism of injury, and that may be where that came from, but at this point, I don’t have any documentation to tell me how I got that information.” On the other hand he stated: “When opposing counsel asked me about the catwalk fall and that thing, I said I just assumed that Mr. Benson told me that, but I can’t state that with any degree of certainty. I don’t know where we got it, but I didn’t pick it out of the air someplace. Somebody told me, or I got the information from some place.”
In addition, it is unclear from the record when Dr. Callaway was informed that Mr. Benson had fallen from the catwalk. The written history, taken in the emergency room, reflects that Dr. Callaway was not informed at the time of Mr. Benson’s admission that he had allegedly fallen from a catwalk: “The patient is a 21 year old white male involved in an oil field explosion in which he sustained injuries to both arms and both lower extremities. Exact mechanism of injury is not known.” (Emphasis added.) In his deposition, Dr. Callaway explained that he had taken a history from him “as best he could at that time with his injuries and all”
Dr. Callaway acknowledged that it is helpful for him to learn of the cause of a patient’s injuries immediately and stated:
In the extent in this case or in many cases, it was in the emergency room, that the nature of the injury and the mechanism of injury is sometimes important in assessing the severity of the injury. A high velocity crush injury is going to be much more severe even though the x-rays and appearances may be very similar to a low velocity injury in the emergency room.
Yet, Dr. Callaway did not indicate that he had relied upon the information that Mr. Benson had fallen from the catwalk in making his diagnosis or prescribing treatment. Judging from the doctor’s testimony and his case history report, it is readily apparent that Dr. Callaway did not have this information upon Mr. Benson’s admission nor did he utilize it in making his diagnosis and prescribing treatment.
Because of Dr. Callaway’s uncertainty as to who made the statements or when they were made, Mr. Benson filed a motion in limine prior to trial, seeking to exclude portions of testimony contained in Dr. Callaway’s deposition, namely matters relating to Mr. Benson’s cause of injury. The trial court examined his testimony on a line-by-line basis, excluding certain portions but admitting the information relating to his discharge summary which attributed his injury to a fall from the catwalk. We have stated that motions in limine are to enlighten the court and advise counsel of the specific nature of the anticipated evidence so that the court may intelligently act on such motions. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Schichtl v. Slack, 293 Ark. 281,737 S.W.2d 628 (1987). Motions in limine are not ordinarily used to extinguish an entire claim or defense. Rather, they are usually used to prohibit the mentioning of some specific matter, such as an inflammatory piece of evidence, until the admissibility of that matter has been determined out of the hearing of the jury. Schichtl, supra, (citing Lewis v. Buena Vista Mutual Ins. Ass’n, 183 N.W.2d 198 (Iowa 1971)).
It follows, then, that one who offers evidence has the burden of showing its admissibility. See Arkansas State Highway Comm. v. Roberts, 246 Ark. 1216, 441 S.W.2d 808 (1969). When a party asks for a motion in limine to exclude evidence because it is hearsay, the burden is on the “offering party to prove the admissibility of the evidence.” See Robin L. Lafferty, Comment, Motion in Limine, 29 Ark. L. Rev. 215, 226 (1975)(citing Aetna Casualty and Surety Co. v. Finney, 346 S.W.2d 917 (Tex.Civ.App. 1961)). This burden was not met in this case.
Since the introduction of evidence is a matter within the sound discretion of the trial judge, we must determine whether or not he abused his discretion in allowing the discharge summary in evidence before we reverse his findings, and in the absence of abuse of that discretion, we will not reverse. See Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). See Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993); Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992).
In support of their argument that the trial court abused its discretion and committed error in admitting the discharge summary, the Bensons cite A.R.E. Rule 803 (4):
Hearsay exceptions — Availability of declarant immaterial.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensation or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
The Bensons contend that because Dr. Callaway could not say with any certainty when or from whom he had acquired the information that Mr. Benson had fallen from the catwalk and because he could not have relied upon this information “for purposes of medical diagnosis and treatment,” Shuler has not met its burden of proof.
Granted, where an injured party has described how his injury occurred, the basis for this hearsay exception is his strong motivation to be truthful in giving statements for diagnosis and treatment. Carton v. Missouri. Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). Moreover, it has been suggested that, under these circumstances, a fact reliable enough to serve as the basis for diagnosis is also reliable enough to escape hearsay proscription. United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980). Thus, the trustworthiness of statements made to a physician and offered at trial under the exception may be tested by determining whether the information provided is of a type reasonably relied upon by a physician in diagnosis and treatment, and by determining whether the patient’s motive is consistent with this rule’s purpose. Id. However, when, as here, the declarant is unknown, the reliability of the statement is highly suspect.
Although we have not addressed this precise issue before, the Eighth Circuit Court of Appeals faced a similar situation in Stull v. Fuqua Industries, Inc., 906 F.2d 1271 (8th Cir. 1990). In Stull, there was a factual dispute as to how the seventeen-year-old appellee hurt himself on a riding lawnmower — the question was whether he jumped off the mower or got his foot trapped in the mower. The Eighth Circuit affirmed the trial judge’s decision to exclude a hospital record that stated that the accident occurred when Stull jumped off the lawn mower, explaining:
The medical records exception to the hearsay rule assumes that a person making a statement for the purpose of obtaining medical diagnosis or treatment will likely tell the truth to a medical person and that the statement is therefore inherently reliable. Hence, to fall within the exception, the statement must be obtained from the person seeking treatment, or in some instances from someone with a special relationship to the person seeking treatment, such as a parent.
Here the word “apparently” in the hospital record indicates that the statement about jumping off the mower may not have been made by Stull; it may instead represent conjecture on the part of the person filling out the record. Fuqua introduced no evidence rebutting this possibility. In fact, Dr Wolf, the treating physician, testified that he did not know from whom the statement was obtained. In the absence of any evidence attributing the statement to Stull, the district court acted well within its discretion in excluding the hospital record.
Stull, 906 F.2d at 1273-1274.
Although not binding, the holding of the Eighth Circuit Court of Appeals is persuasive and in applying its rationale to the case at bar, we see that the trial court abused its discretion in admitting Dr. Callaway’s statements from the discharge summary into evidence, for Dr. Callaway could not remember whether or not he obtained this statement from Mr. Benson while he was seeking treatment or from someone who was in a special relationship with him. In short, he could not remember who told him about Mr. Benson falling from a catwalk.
Furthermore, the record is devoid of any indication that Dr. Callaway relied on the information he received that Mr. Benson fell from the catwalk to fashion his diagnosis of Mr. Benson or his treatment. Construing the federal equivalent to A.R.E. Rule 803(4), Professor Weinstein explains that in order to be admissible, these statements need to be for the purposes of diagnosis or treatment:
Statements relating to someone else’s symptoms, pains or sensations would be admissible, provided again, they were made for purposes of diagnosis or treatment. The relationship between the declarant and patient will usually determine admissibility ... As the relationship becomes less close, the statement becomes less reliable, both because the motive to tell the truth becomes less strong, and because even a stranger in good faith may not be able to describe another’s physical pain and suffering as infallibly as an intimate. The court in its discretion pursuant to Rule 403 will have to assess the probative worth of the statement, which will depend on its significance, its contents, by whom it is made, and in what circumstances it was made, and decide whether admission is warranted despite the dangers of prejudice, confusion and waste of time.
Weinstein’s Evidence, Vol. 4 (1993), p. 803-145.
In the absence of any evidence attributing the statement to Mr. Benson or to someone in a special relationship with him, or that Dr. Callaway relied on this statement to fashion his diagnosis or treatment of Mr. Benson, we hold that the trial court abused its discretion in admitting the hospital record into evidence.
B. A.R.E. Rule 803(6) — Business Records Exception to Hearsay Rule
Shuler also claims that the discharge summary was admissible under the business records exception contained in A.R.E. Rule 803 (6), which provides:
Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
We interpreted the business records exception as having seven requirements: (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the act or event occurred, (4) by a person with knowledge, or from information transmitted by a person with knowledge, (5) kept in the course of regularly conducted business, (6) which has a regular practice of recording such information, (7) all as known by the testimony of the custodian or other qualified witness. Terry v. State, 309 Ark. 64, 67, 826 S.W.2d 817, 819 (1992). Rule 803 (6) further provides that business records will be not be admitted if the source of information or the method of circumstances of preparation indicate lack of trustworthiness. Id.
Applying these seven requirements to the discharge summary, we hold that it was not admissible under this exception because the source of information indicates lack of trustworthiness and the record was not made by a person with knowledge of the testimony. Nor was the record made at or near the time the event occurred.
C. Waiver of testimony by “opening the door”
Lastly, Shuler claims that the Bensons “opened the door” on this testimony in Dr. Callaway’s deposition and, therefore, have waived their right to complain about it. Yet, as the Bensons point out in their brief, the parties stipulated prior to the taking of the deposition that “[t]he right to object to the testimony of the witness on the grounds of incompetency, irrelevancy and immateriality is expressly reserved. . . .” Our rules of civil procedure permit parties to stipulate to preserve any objections as to the taking of the deposition until the time of trial. See Ark. R. Civ. R 29; Carlton Bailey, “Usual Stipulations” are Usually a Mistake at the Oral Deposition, 1991 Ark. L. Notes 3. In addition, Ark. R. Civ. P. 32(b) provides that an objection may be made at the trial or hearing to receiving into evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness was then present and testifying. Shelter Mut. Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988). As such, even though the Bensons first explored the medical history in a limited manner during the taking of Dr. Callaway’s deposition, they have a well-established right to make objections and to try to excise portions of his testimony at trial.
II. Bracketed material in AMI 301
Although we reverse and remand this case based on the introduction of the discharge summary, we address the Bensons’ argument regarding AMI 301 as it will, in all probability, be an issue facing the trial court in the event of retrial.
The Bensons contend that the trial court committed reversible error by giving the bracketed portion of AMI 301. The jury instruction given provides:
When I use the word “negligence” in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case. [To constitute negligence an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.]
The Bensons claim that by giving the bracketed material, the court “eroded and lessened the ‘reasonable care’ standard.” We disagree, for as Shuler emphasizes, Arkansas law recognizes that the failure to guard against an occurrence that is not reasonable to anticipate is not negligence.
Foreseeability is a necessary ingredient of actionable negligence in this state. Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972); North Little Rock Transp. Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967). There is no negligence in not guarding against a danger which there is no reason to anticipate. First Electric Cooperative Corp. v. Pinson, 277 Ark. 424, 642 S.W.2d 301 (1982). There is a duty on the part of one in charge of a dangerous instrumentality to protect against danger if he knew or should have known that the situation was dangerous. Id.
In the situation before us, the evidence was disputed as to whether the saltwater tank resting on gravel would create static electricity and if so, whether this was the cause of the explosion. Evidence presented at trial also established that Shuler’s saltwater tank was no different than those used by other companies in similar situations. Accordingly, foreseeability of the accident was in issue and the bracketed portion of AMI 301 was justified under the circumstances.
Since this case is being reversed and remanded, we need not address the Bensons’ argument that the verdict for Shuler was not supported by substantial evidence.
Reversed and remanded.
Dudley and Hays, JJ., dissent.