« Back to BG&S in the News

THE ADMISSIBILITY OF COMPUTER GENERATED BILLS IN NO-FAULT TRIALS
By: Allison L. Goldstein, Esq.

FOR THE DEFENSE


THE ADMISSIBILITY OF COMPUTER GENERATED BILLS IN NO-FAULT TRIALS

By: Allison L. Goldstein, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


In a recent no-fault matter tried before the Honorable Peter B. Sweeney, a few interesting
evidentiary questions presented themselves. Specifically, is a computer generated bill admissible, and, if so what is the proper foundation required to be laid prior to its acceptance into evidence?

The matter of Norman Schoenberg, M.D., P.C., a/a/o Anthony Vespa v. State Farm, Civil Court, Kings County, Index 8363/05, was sent to the courtroom of Judge Sweeney on July 20, 2005. This case involved billing for MRI services provided to the assignor, Anthony Vespa, on July 12, 2004 and July 22, 2004, by the plaintiff, Norman Schonberg, M.D., P.C. Upon conferencing the matter, as counsel for defendant, I explained State Farm’s position in reference to the receipt of plaintiff’s bills. State Farm’s records revealed that it only received plaintiff’s bills on November 12, 2004. Based upon that receipt date, State Farm timely denied payment of the bills based, in part, on the grounds that the billing was not provided to State Farm within forty-five (45) days, as required by New York No-Fault Regulation 68. In response, Plaintiff’s counsel advised that she intended to call as a witness an individual who would prove that the bills were sent on July 22 and 28, 2004, respectively, refuting State Farm’s position.

Counsel for plaintiff called as its only witness a billing manager from Norman Schoenberg, M.D., P.C. During the course of the witness’ testimony, counsel for plaintiff attempted to move into evidence copies of two bills that were allegedly “created and maintained” in the ordinary course of business at the plaintiff’s facility. Based upon general testimony regarding the creation and maintenance of the documents in the ordinary course of business, the court allowed the document into evidence after voir dire over defendant’s objection. During the witness’ examination and voir dire, she noted that it was not the practice of Plaintiff’s business to keep copies of bills in their files. She noted that a bill is usually printed out and a copy is placed in the file when a denial of claim form is received from an insurance carrier. The witness testified that in this matter, based upon her review of the documents, the bills were printed on November 3, 2004. However, she later testified that the bills were forwarded to State Farm on July 22, 2004, and July 28, 2004 respectively. Her only basis of knowledge as to the mailing was based upon a review of the printed bills that were entered into evidence at time of trial.


Upon cross-examination, it was determined that the plaintiff’s original explanation for the printing of the billing was incorrect since the denial in the matter was dated well after the noted printing date. The witness then assumed that the bills must have been printed when they were forwarded to counsel for processing. In addition to being unable to give a definitive explanation for the printing, Ms. Robinson testified that she did not print these bills out herself. She also did not testify that the document entered into evidence was an accurate reflection of a computer record that she herself observed. Upon further cross-examination the witness testified that there were several changes on the document entered into evidence that could not have been on the original forwarded to the carrier.

Courts have historically found that computer generated business documents are governed
by CPLR 4518. See Schozer v. William Penn Life Insurance Company of New York, 84 N.Y.2d 639, 644 N.E.2d 1353, 620 N.Y.S2d 797 (1994); HUD v. Torres, 2 Misc.3d 53, 774 N.Y.S.2d 245 (2nd Dept. 2003) In fact, CPLR 4518(a) was amended in 2002 to provide, “[a]n electronic record...used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record.”

In post trial briefs on behalf of defendant, it was argued that the bills should be stricken from the record due to the fact that the plaintiff failed in establishing the proper foundation for the admission of the alleged bills when it did not properly authenticate the documents. This was especially important in a case where the only testimony regarding the disputed mailing was based upon the witness’ review of the records in question. Additionally, plaintiff did not establish the requisite foundation for the admission of the records under the “business record exception” to the hearsay rule that is carved out in CPLR 4518.

It is a basic rule of evidence that, in order for a private document to be admitted into evidence at time of trial, the genuineness of that document must be established. Unless falling under some exception for public documents, which this case did not, all writings must be authenticated. People ex. rel. Bruckner v. Wyner, (1955) 207 Misc, 673, 142 N.Y.S.2d 393. “Computer printouts are admissible as routine business records if the data was stored in the normal course of business or properly authenticated by certification or a competent witness.” Soeurette Badio v. Liberty Mutual, 2002 N.Y. Slip Op. 50708U (Supreme Court, New York County December 30, 2002) (citations omitted). In this case, it was argued that the plaintiff’s witness did not, and could not, authenticate this document. The evidence showed that the document was not what it purported to be; that is, a copy of the claim allegedly forwarded to State Farm. Therefore, not only was this document inadmissible, but it was completely irrelevant to the case.


After the completion of the witness’ testimony it was also clear that she could not properly establish that the bills admitted into evidence were created and maintained in the ordinary course of business since the document contained several changes from what would have allegedly been its original form. Plaintiff’s witness originally testified as to standard business practice regarding the creation of bills at Norman Schoenberg, M.D., P.C. The testimony elicited noted the bills are created at or close to the time that services are provided. The documents entered into evidence were not created in accordance with those alleged procedures. Specifically, the witness noted at least two subsequent dates that had to have been changed after the original bill’s creation. The witness would never be able to verify that these were the only alterations from the original since she did not create the original, nor did she ever review it. Accordingly, she was not only unable to verify its genuineness, but she was also unable to establish that the document entered into evidence qualified under the business record exception to the hearsay rule. She could not establish that the instant documents, as entered into evidence, were created in the ordinary course of business. The witness only laid the proper foundation for what would have been the original bill created at the time that the services were provided. These changes to the document disqualify the document under the business records exception since the document then could not be qualified as being made in the ordinary course of business. See General Bank v. Mark II Imports, Inc., 290 A.D.2d 240, 735 N.Y.S. 2d 530 (Finding that records with changes from an unknown source could not have been made in the ordinary course of business).

In reference to the maintenance prong of the business record exception to the hearsay rule under CPLR 4518, plaintiff’s witness also could not establish that the document entered into evidence was maintained in the ordinary course of business. It was clear that neither the printed document entered into evidence, nor the computer record itself was “kept” or “maintained” in its original form in the ordinary course of business.

Finally, the witness did not testify that she herself printed the bill from the computer record, nor did she testify that she reviewed same to make sure it was a true and accurate reflection of the computer record. Additionally, she would be unable to testify that it was an accurate representation of the original computer record since there were clearly changes to the original that was allegedly forwarded to State Farm.

As of the date of the drafting of this article, the defendant has yet to receive a decision from the court. Without even knowing the outcome, lessons have been learned. Counsel for plaintiff argued at the time of trial that in modern society where many offices are now paperless, courts must accept computer generated documents into evidence at the time of trial. Plaintiff’s counsel is absolutely correct. However, the same basic principles that apply to ordinary business records now apply to computer records. The plaintiff in this matter clearly could not meet those standards.


Editor’s Note: Allison L. Goldstein is a graduate of Boston University School of Law and an associate at Bruno, Gerbino & Soriano, LLP, located in Melville, New York

« Back to BG&S in the News