Evidence Corner: G.L. c. 233 s. 79B
The Supreme Judicial Court recently issued a decision regarding a little-used and often-overlooked hearsay exception that provides an avenue for the admission of a wide variety of documents into evidence. In N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Ins. Co., the Court held that the trial court properly rejected an attempt by Liberty Mutual to offer into evidence a statistical study culled from a database of medical charges, as evidence that the plaintiff’s charges were unreasonably high.
Liberty attempted to invoke G.L. c. 233, § 79B, which provides that:
“Statements of fact of general interest to persons engaged in an occupation contained in a list, register, periodical, book or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated.”
The trial court rejected the evidence, noting that the statistics offered by Liberty Mutual were based on data voluntarily submitted by participating insurers, to which a proprietary formula was applied. There was no evidence that the resulting costs had ever been cross-checked against actual data for accuracy. In fact, the Court noted that the New York Attorney General had investigated the company and criticized the methodology, noting that its calculations seemed to understate medical costs.
Liberty Mutual argued–against the specific language of the statute–that the trial judge had no discretion to reject the evidence. The SJC, not surprisingly, disagreed. The Court noted that the exercise of discretion encompassed a finding of reliability or trustworthiness by the trial court as a foundation requirement for admissibility.
Notwithstanding Liberty Mutual’s failure, G.L. c.233 s.79B is a powerful weapon in the trial lawyer’s arsenal. The statute’s potential applicability is limited only by the lawyer’s imagination, and may provide a path to admissibility for a surprisingly broad range of documents into evidence. These may include such varied items as membership directories, Medicare billing code definitions, historical interest rates, and other financial calculations. The statute forms the basis for Section 803(17) of the Massachusetts Guide to Evidence.
Any trial lawyer with a directory or database to offer should review Section 79B to see if the document satisfies the requirement for admissibility under this important but largely ignored statute. If the document contains objective facts, rather than conclusions or opinions, there’s a good chance it’s admissible under Section 79B.
Read the decision in N.E. Physical Therapy v. Liberty Mutual here.