Are Lab Results a Business Record?

Business records are evidence in many kinds of proceedings. And it appears that there is some disagreement in Indiana’s appellate courts regarding what constitutes a business record and what does not. This panel of the Indiana Court of Appeals made its position clear in this case.

Father and Mother were the parents of a child. A police officer stopped their car after receiving a report of a theft at a Target. Mother admitted stealing the items so “she could … sell the items she had stolen, to get food.” The officer then searched the car and found several electronic items from Target, some syringes, and a bent spoon. The parents admitted using methamphetamine. The parents were arrested, and the child (who was in the back seat) was put in the care of the DCS.

A CHINS petition was filed. While it was pending, Father and Mother submitted to drug tests, which were processed at Forensic Fluids. At the fact-finding hearing, DCS presented the testimony of the lab director of Forensic Fluids, Lemberg, over Father’s objections. She testified that she did not personally process the drug tests, but described the procedure (including how the lab reports were created) and the results of the tests of Mother and Father (which showed continued use of various illegal drugs).

After the hearing, the trial court found that the child was a CHINS, relying in part on Lemberg’s testimony. Father appealed, arguing that the trial court erred when it admitted the lab reports.

In a recent case, In re L.S., 125 N.E.3d 628 (Ind. Ct. App. 2019), trans. not sought, the Court of Appeals held that lab reports from this same lab did not fall under the business records exception because they were documented for DCS’s benefit; the lab did “not depend on these records to operate or conduct business.” This panel disagreed.

First, Forensic Fluids does depend on the lab reports to operate. That is, Lemberg testified that Forensic Fluids is required to create and keep lab reports for two years to maintain its federal CLIA certification. … All of this shows that if Forensic Fluids does not maintain lab reports for two years it would lose its certification and, presumably, its business.

Second, the L.S. panel did not consider the other two indicators of reliability mentioned by our Supreme Court in In re E.T.: (1) the records being subject to review, audit, or internal checks and (2) the precision engendered by repetition. Here, Lemberg testified that Forensic Fluids is subject to physical inspection by the federal government every twelve to eighteen months and that Forensic Fluids does blind-sample testing. Furthermore, Lemberg testified that a lab report is routinely created for every result rendered by Forensic Fluids. Thus, because Forensic Fluids depends, at least in part, on the lab reports to operate, the lab reports are subject to federal review and internal checks, and the lab reports are created for every result rendered by Forensic Fluids, we find that the trial court did not err by admitting the lab reports under the business-records exception

Thus, we have a clear conflict between different panels of the Court of Appeals within the last year. The Court’s opinion, however, highlights that there may be a resolution to this conflict soon in a footnote:

A different panel of this Court held in In re K.R. that Forensic Fluids lab reports were business records. 133 N.E.3d 754, 762 (Ind. Ct. App. 2019), trans. granted. Our Supreme Court granted transfer in that case, and oral argument is scheduled for April 16, 2020. See 20S-JT-63.

Due to COVID-19, that argument was rescheduled and took place on May 21. So it is likely that we will get more definitive guidance on this issue in the near future.

Lessons:
1. It is currently uncertain the extent to which lab results are business records for the purposes of the hearsay rule.
2. The disagreement centers on how central the results are to the business’s operations.
3. A related case is currently pending before the Indiana Supreme Court.

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