- Petrocelli v. Gallison (1st Cir 1982)
- Petrocelli’s lawyers discover two documents in which it is written that his nerve was severed, want to admit this under FRE 803(6) to prove that the nerve was severed; one of the reports was written by Dr. Swartz, who was not called; probably would have testified, if called, that he was just repeating what was told to him – which makes the value of the business record virtually nil
- trial judge excluded evidence because he had no confidence in the statement
- holding: no abuse of discretion in excluding statement – failed the personal knowledge of the source req’t of FRE 803(6)
- info in the report could have come from Petrocelli or his wife
- note: even if internal statement isn’t Dr. Swartz’s opinion and can’t come in under 803(6), it’s still a medical diagnosis – why didn’t Petrocelli try FRE 803(4)?
- strategic decision – if jury was told that the source of the information was one of the Petrocellis, it would have no probative value (as compared to the great value it would have had had jury been asked to conclude that it was Dr. Swartz’s opinion, had it been deemed a true business record).
Thursday, September 6, 2012
Petrocelli v. Gallison case brief
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