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Admission of unauthenticated records was harmless error

Virginia Lawyers Weekly//December 4, 2019

Admission of unauthenticated records was harmless error

Virginia Lawyers Weekly//December 4, 2019//

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The jury’s failure to award plaintiff damages after finding defendant liable was not flawed by the trial court’s admission of unauthenticated medical records. The error was harmless either because the information was established by other testimony, or it “had only a slight effect upon the verdict.”


In December 2016, Spruill was a passenger in Tyler’s car when Garcia hit it with his vehicle. Notes from a responding officer indicated “minimal” vehicle damage. Both Tyler and Garcia were able to drive their vehicles to a nearby gas station. Tyler and Spruill refused an ambulance and returned to work immediately after the accident. Both went to the emergency room later that evening “‘not because [they] were feeling tingling or an injury at that time’ but ‘to make sure they were okay.’”

Later, Spruill sued both Tyler and Garcia.

At trial, Spruill admitted to back problems and numbness in her feet when she was in the military. She had an MRI before she was discharged in 1998. On discharge, she was given a 10 percent disability rating for back problems. She testified to “flare ups” of her back issues and had an MRI in 2013. She did not recall a 2011 MRI or treatment from Dr. Ton at Consultants in Pain Management despite those records being furnished at trial to refresh her memory.

Dr. Berkowitz provide Spruill with chiropractic treatment after the accident. On an intake form, Spruill indicated she had a herniated disc. Berkowitz testified that Spruill’s pain complaints resulted from accident-related injuries based on her reporting that she was not in pain before the accident. He also reviewed a report Spruill provided that compared the results of the 2013 MRI with a 2011 MRI. Berkowitz concluded she had a bulging disc rather than a herniation.

Tyler and Garcia sought to introduce copies of Ton’s treatment. “In lieu of testimony, Tyler and Garcia presented copies of the medical records with a statement of their authenticity signed by the records custodian for Consultants in Pain Medicine, Inc. The statement was not sworn to under oath or made under penalty of perjury but was merely ‘acknowledged’ as being ‘true and correct’ before a notary public.”

The records revealed Spruill’s self-reported history of back pain. Ton diagnosed degenerative disc disease and a bulging disk. There were results of a 2011 MRI and notations of a prescription for pain killers and a steroid injection.

These records were admitted over Spruill’s objections that they were not properly authenticated. The court overruled the objection, stating that Tyler and Garcia were using the records for impeachment but later allowed Garcia to use the records “for any purpose” in his closing argument.

The jury found against Tyler only on liability and awarded no damages. Spruill appeals the trial court’s denial of her motion to set aside the verdict.


Copies of the contested records should not have been admitted into evidence.

First, the statement signed by the records’ custodian was not made under oath or an unsworn declaration made under pain of perjury. The custodian instead acknowledged before a notary public that the copies were “true and correct.”

Second, Tyler and Garcia, the records’ proponents, provided no foundation to satisfy the hearsay rule’s business-records exception. There was no live testimony, sworn affidavit or an unsworn declaration made under pain of perjury.

Moreover, Spruill was not furnished with the records and certification 15 days in advance of trial as required by Code § 8.01-390.3(B). “In short, neither the requirements of the authentication statute nor Rule 2:803(6) were satisfied.”

Harmless error

‘[A] non-constitutional error is harmless ‘if, when all is said and done, the error did not influence the jury, or had but slight effect.’ Commonwealth v. Swann, 290 Va. 194, 201 (2015) (per curiam)[.] …

“Each of the pages in the 2011 medical records contains information either that came into evidence through the testimony of Spruill and Dr. Berkowitz or that had only a slight effect upon the verdict. …

“To the extent that specific details in those records were not directly or indirectly before the jury from other sources, the relevance of such details is diminished by the persuasive force of the entire record in this case.

“With or without the 2011 medical records, the jury heard Spruill’s admission to having chronic back pain with intermittent symptoms going back to at least 1998 when she first had received an MRI while she was in the military and her admission that she had experienced two separate flare ups of her back pain in 2011 and 2013.

“All of this evidence has enhanced weight because the uncontested physical and testimonial evidence demonstrates a very minor collision. In the unique context of this case, we hold that the admission of the 2011 medical records was harmless error because such evidence was either cumulative “or had but slight effect,” Swann, 290 Va. at 201 (citation omitted), if any, upon the jury’s verdict.”


Spruill v. Garcia, et al. Record No. 181002 (Published Order) Nov. 7, 2019 (Norfolk Cir. Ct.). William David Breit for Appellant, Todd Michael Fiorella, Alexander Christopher Zaleski, Katherine Marguerite Lennon for Appellees. VLW 019-6-083, 10 pp.

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