## Facts

- Peter J. Ricciardi underwent open-heart surgery to replace his aortic valve at Children’s Hospital Medical Center in Boston on July 11, 1979.
- After surgery, Ricciardi developed neurological problems and alleged they were caused by negligence during the operation.
- Ricciardi’s only proof of an intraoperative mishap was a July 13, 1979 neurology consult note in his chart written by Dr. Krishna Nirmel (a neurology resident) stating, in substance, that during surgery the aortic cannula came out for 40–60 seconds.
- The aortic cannula is used to return blood from a heart-lung machine to the body during bypass.
- Dr. Nirmel did not witness any cannula incident, could not recall who told him about it, and could not explain how he obtained the information.
- The note therefore depended on at least two layers of hearsay: an unknown declarant’s statement to Nirmel and Nirmel’s recording of it.

## Issues

1. Whether the chart note was admissible under Fed. R. Evid. 803(6) (business records) or another hearsay exception despite the author’s lack of personal knowledge and inability to identify the source.
2. Whether Fed. R. Evid. 703 permitted plaintiff’s expert to base a causation opinion on the excluded note.
3. Whether judgment as a matter of law for defendants was proper once the note and expert reliance on it were excluded.

## Decision

- The First Circuit affirmed the exclusion of the chart note as inadmissible hearsay.
- The court affirmed the ruling that plaintiff’s expert could not base a causation opinion on the note.
- The court affirmed judgment as a matter of law for defendants because, without the note, plaintiff lacked evidence that any cannula incident occurred or that defendants caused his injury.

## Legal Principles

- Under Rule 803(6), a record is admissible only if the information was transmitted by someone with knowledge acting under a business duty to report accurately; embedded statements from an unknown or unverified source do not satisfy the exception.
- When a business record contains multiple levels of hearsay, each level must independently fall within a hearsay exception; otherwise the embedded statement is inadmissible.
- Courts may exclude records under Rule 803(6) when the source of critical information is unknown and the trustworthiness rationale for the exception cannot be shown.
- Rule 703 does not allow an expert to present an opinion based on information not shown to be of a type reasonably relied upon by experts in the field; a party cannot use expert testimony to place unreliable hearsay before the jury.
- If excluded evidence eliminates the plaintiff’s only proof on breach or causation, judgment as a matter of law is appropriate because no reasonable jury could find for the plaintiff.

## Conclusion

Because the chart note’s account of a surgical mishap was traceable to an unidentified source and lacked the indicia required by Rule 803(6), it was properly excluded, and Rule 703 did not permit an expert to rely on it without a showing of reasonable professional reliance; without that evidence, the defendants were entitled to judgment as a matter of law.


Ricciardi v. Child.’s Hosp. Med. Ctr., 811 F.2d 18 (1st Cir. 1987)