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noting that Fed.R.Evid. 803 refers to statements by person seeking treatment, not doctor
Summary of this case from Jackson v. HallOpinion
C.A. NO.: 3:17-CV-522-JWD-RLB
2020-05-11
Damian FRANCOIS v. GENERAL HEALTH SYSTEM
Andrew David Bizer, Emily Anne Westermeier, Garret Scott DeReus, Bizer & DeReus, LLC, New Orleans, LA, for Damian Francois. Craig James Sabottke, Caleb Joshua Huval, Adrien Gingles Busekist, Michael Marcel Remson, Watson, Blanche, Wilson & Posner, LLP, Baton Rouge, LA, for General Health System.
Andrew David Bizer, Emily Anne Westermeier, Garret Scott DeReus, Bizer & DeReus, LLC, New Orleans, LA, for Damian Francois.
Craig James Sabottke, Caleb Joshua Huval, Adrien Gingles Busekist, Michael Marcel Remson, Watson, Blanche, Wilson & Posner, LLP, Baton Rouge, LA, for General Health System.
RULING ON OBJECTIONS TO MEDICAL RECORD EXHIBITS
JOHN W. deGRAVELLES, JUDGE
This matter comes before the Court on a portion of Plaintiff's Consolidated Motion in Limine ("Motion") seeking to exclude the "Introduction of Medical Records from Other Providers" brought by plaintiff Damian Francois ("Francois" or "Plaintiff"). (Doc. 128-1 at 1-6.) The motion was opposed by defendant General Health System, d/b/a Baton Rouge General Medical Center ("BRG" or "Defendant"). (Doc. 146.) Supplemental submissions were made by the Defendant (Docs. 168 and 191) and Plaintiff (Doc. 184). The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, the Motion is granted in part, denied in part and deferred in part.
PROCEDURAL BACKGROUND
In neither the Plaintiff's motion nor Defendant's original opposition did the parties supply the actual documents at issue. In his motion, Plaintiff simply referred to the medical records as they were listed by Defendant in the Pretrial Order. (Doc. 128-1 at 1-2.) In the Pretrial Order, Defendant listed certified copies of the records of 10 health care providers or facilities. (Doc. 123 at 23-25, Exhibits 24-34.) In his Motion, Plaintiff complained of the "thousands of pages of medical records referenced" in those exhibits which included "dozens of medical appointments, scores of medical professionals, and a wide array of facilities." (Doc. 128 at 2.) In its opposition, Defendant represented that "Defendant intends to offer at trial the certified records of the following health care providers for treatment of Plaintiff, Damian Francois", thereafter listing, without limitation or page numbers, the records of nine providers or facilities. (Doc. 146 at 1-2.) In a companion case, Ward v. Baton Rouge General Physicians, Inc. , No. 18-451, Doc. 90, the Court ruled on an identical motion as follows:
In its memorandum, Defendant represents that "BRG's proposed exhibits D24-34 are and always have been excerpted medical records." (Doc. 168 at 1, n.1, emphasis in original.) This statement is belied by BRG's listing of these exhibits in the Pretrial Order. (Doc. 123.) Two exhibits (26 and 28) have well over 1000 pages each. Five exhibits have no page numbers listed, merely stating that "Defense counsel determining specific range of documents," (25, 27, 30 and 34) and for two exhibits, the records had not yet been received by defense counsel when the Pretrial Order was submitted (32 and 33). (Doc. 123 at 23-25.) In its opposition, Defendant stated "Defendant intends to offer at trial the certified records of the following providers ..." (Doc. 146 at 1.) The current excerpted medical records which are the subject of the present controversy total 64 pages. (Doc. 167-1 at 1-60; Docs. 199 and 199-1 and Docs 201-2 and 201-3.)
The Court finds that the records cannot come into evidence in total; and if there are specific parts of the records the Defendant would like to introduce, the Defendant shall submit a chart to the Court ... which contains the following:
a. Specific entries sought to be introduced;
b. Where the entry can be found in the record;
c. The relevance of the entry;
d. Whether or not it is hearsay, and if not, why not, and if so, what exception to the hearsay rule Defendant intends to apply;
e. Whether the introduction would be for impeachment;
f. If the entry is admissible, how does the entry qualify for admission under Federal Rule of Evidence 701.
The Court adopted the order in Ward and made it applicable in the present case. (Doc. 162.) In response to the Court's order, Defendant filed a Memorandum in Support of Defendant's Medical Record Exhibits to be Offered at Trial (Doc. 168) which contains the ordered chart. (Doc. 168 at 9-28.) The actual exhibits were filed under seal. (Doc. 167-1 at 1-60, Docs. 199 and 199-1, and Docs. 201-2 and 201-3.) Francois filed Plaintiff's Response to Defendant's Memorandum Regarding Medical Records Exhibits (Doc. 184) which attaches a copy of Defendant's chart but adds a column where Plaintiff's responses to each exhibit are summarized. (Doc. 184-1 at 1-37.) Defendant filed a Memorandum in Reply to Plaintiff's Arguments in Opposition to Defendant (sic) Medical Record Exhibits (Doc. 191).
During its review of the records, the Court found that certain pages listed in the chart were not in the record. The Court requested that Defendant supplement the record with these pages and Defendant complied. (Docs. 199, 199-1, 201-2 and 201-3.)
As narrowed, there are approximately 64 pages of medical records at issue, grouped in 58 blocks on Defendant's chart. (Doc. 168 at 9-28). Each block summarizes the excerpt which Defendant wants to introduce, (by Defendant's exhibit number and Bates page number), along with Defendant's contention as to its relevance, and its rationale for how it survives Plaintiff's motion. (Id. ) Of the 58 excerpts, Plaintiff fully waived his objection to 12 of those (numbers 1, 2, 6, 12, 17, 19, 21, 34, 36, 39, 40 and 55), leaving 46 at issue.
Three pages (Docs. 167-1 at 58-60; Bates Numbers 8217, 8218 and 8228) are attached to Defendant's submission but are not on its chart. Because these documents are not on the Defendant's chart with an explanation of their relevance and why they are admissible in the face of Plaintiff's challenge, they will not be considered by the Court. There were certain documents listed on the chart which were not originally submitted but were submitted in supplemental filings (Docs. 199 and 199-1 and Docs. 201-2 and 201-3). These are considered.
The Court has carefully considered the proposed exhibits, the arguments of the parties and the applicable law and, for the reasons which follow, sustains in part, overrules in part and defers in part Plaintiff's Motion. The Court provides a chart at the end of this decision stating its ruling as to each of the objections. The Court has numbered each excerpt block (1-58) and, for sake of simplicity, will refer in its discussion and rulings to these record excerpts by the excerpt numbers given in the Court's chart.
FACTUAL BACKGROUND
Plaintiff alleges that he is a "profoundly deaf, illiterate, and language-deprived individual" (Doc. 77 at 1) who suffered a gunshot wound in April 2017 which rendered him a paraplegic. (Doc. 48-1 at 5.) He thereafter sought and "received extensive medical care at the Baton Rouge General wound care clinic" ("BRGWC") from June 14, 2017 until September 8, 2017. (Doc 77 at 1.)
According to Plaintiff, he "communicates primarily in American Sign Language (‘ASL’) and has a very limited understanding of English." (Id. ) Plaintiff sues Defendant as the owner and operator of the BRGWC (Doc. 21 at 2-3) charging that "Defendant failed to provide him with adequate auxiliary communication aids and services he needs to communicate effectively in a medical setting" (id. at 2) in violation of Title III of the Americans with Disabilities Act, 42 U.S.C § 12181 ("ADA"); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("RA"); and Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116. (Id. at 2-3.) Plaintiff asks for injunctive relief and damages.
SUMMARY OF ARGUMENTS OF THE PARTIES
In his original motion (Doc. 128-1 at 1-6), Plaintiff argued that his medical records from facilities other than Defendant's are irrelevant in that they contain complaints, examinations, diagnostic workups and treatments for complaints, injuries and illnesses which are not at issue here. The issue, insists Plaintiff, is what happened (or didn't happen) at Defendant's facility. He reiterates the relevance argument in his response. (Doc. 184 at 8.) Plaintiff also argues that certain entries in the records are independently irrelevant to any conceivable issue in the case. (Doc 184 at 1, referring to the entry regarding Plaintiff being hit in the nose by his uncle and a GoFundMe campaign started on Plaintiff's behalf).
Second, Plaintiff maintains that, even if relevant, the documents contain hearsay, and in some instances, multiple levels of hearsay, and none of the exceptions to the hearsay rule posited by Defendant (namely, Rules 803(4) and 803(6) ) apply. (Id. at 4-6.) Third, in the alternative, even if minimally relevant and either not hearsay or subject to an exception to the hearsay rule, the probative value of the evidence is far outweighed by the prejudicial potential for confusing and misleading the jury. In addition, considering this evidence will cause an undue delay in the trial by having to try multiple mini-trials on side issues raised by the records. (Id. at 8-9; 184-1 at 1-37.) The excerpts dealing with Plaintiff's ability to communicate without an interpreter are untrustworthy and misleading in the absence of a live witness who can be challenged on cross examination. (Doc. 184-1 at 1-37.)
Fourth, Plaintiff argues that, in some instances, the entries constitute opinion testimony and are inadmissible since no Fed. R. Civ. Pro. 26 report was produced by Defendant, and any lay opinions given in these excerpts would be inadmissible since a live witness is not going to testify at trial as to these opinions and be able to provide the foundational testimony required under Fed. R. Evid. 701. (Id. ) Further, argues Plaintiff, he will be severely prejudiced by not being able to cross examine those who authored the excerpts. In compliance with the Court's order, Defendant provided a chart specifying by exhibit and page number the proposed excerpt, its relevance, and the basis for its admission in the face of Plaintiff's hearsay and other objections. (Doc. 168 at 9-28.) Defendant responds generally to Plaintiff's relevance challenge by arguing that the records are highly relevant to rebut the main contentions of Plaintiff's case, namely, that "(1) Mr. Francois's ‘preferred’ mode of communication at medical appointments is via an in-person interpreter; (2) Mr. Francois is essentially illiterate or has very little literacy as it pertains to written English; [and] (3) Mr. Francois suffered worsening pressure wounds as a result of ineffective communication provided to him (using VRI instead of in person interpreters) during admissions to BRG and BRG Wound Care. " (Doc. 168 at 6, emphasis in original.) In addition, these entries rebut and impeach the contention of Plaintiff's expert "Dr. Judy Shepherd-Kegl, that in-person interpreters are the only effective communication (sic) for him in a medical setting." (Id. , italics in original; see also pages 6-9.)
Furthermore, argues Defendant, Plaintiff contends his pressure sores and decubitus ulcers were made worse as a result of Defendant's failure to provide a sign language interpreter which prevented him from getting "information as to how to prevent the bedsores from growing or how to avoid contracting new bedsores." (Id. at 8, quoting from ¶ 33 of Plaintiff's Complaint.) Some of the records belie this contention in various ways, e.g., by showing that he was properly instructed on wound care with an interpreter present and was nonetheless non-compliant in following instructions on how to care for his wounds and that he simply disliked the debridement therapy. (Id. at 8-9; see also reply brief, Doc. 191 at 4-5.)
As to the alleged hearsay objection raised by Plaintiff, Defendant responds first, because the medical records are certified in compliance with La. R.S. 13:3714(A), they are admissible without regard to whether they contain hearsay. (Doc. 168 at 2-4.) In addition, argues Defendant, the records are either not hearsay as set out in Fed. R. Evid. 801(d)(2) (id. at 5-6) and/or fit into the exceptions set out Fed. R. Evid. 803(4) and/or 803(6) (Id. at 4, 9-28). In its reply and in its chart, Defendant also argues that the records are not offered for the truth of the statements contained therein but rather are for the purpose of showing that "Plaintiff had NOTICE of information bearing on chronic prevention, notice provided via in-person interpreter ..." (Doc. 191 at 2., emphasis in original), and to show not the truth of the history taken, but that a history could be taken from Plaintiff in the absence of an in-person interpreter (id. at 3-4).
In response to Plaintiff's objection regarding expert or lay opinion testimony, Defendant suggests that a limiting instruction should suffice to allay any prejudice to Plaintiff. (Id. at 6.) Finally, in argument made in its chart, Defendant maintains that much of the objected to material should be allowed to impeach anticipated testimony of Plaintiff's lay and expert witnesses such as, for example, that Plaintiff preferred to have an in-person interpreter during in-patient hospitalizations. (Doc. 168 at 9, et seq.)
STANDARD
As this Court has previously explained:
Generally, motions in limine are disfavored. See, e.g., United States v. Dish Network, L.L.C. , No. 09-3073, 2015 U.S. Dist. LEXIS 17055, at *5 (C.D. Ill. Nov. 30, 2015);
United States v. Amor , No. 14-20750-CR-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 144291, at *3, 2015 WL 6438479, at *1 (S.D. Fla. Oct. 23, 2015) ; Mahmoud v. Rambosk , No. 2:13-cv-63-FtM-38DNF, 2014 U.S. Dist. LEXIS 98700, at *3, 2014 WL 3593763, at *1 (M.D. Fla. July 21, 2014) ; Mi-Jack Prods. v. Intl. Union of Operating Engrs., Loc. 150 , No. 94 C 6676, 1995 U.S. Dist. LEXIS 16930, 1995 WL 680214 at *1 (N.D. Ill. Nov. 14, 1995). Instead, "[b]y deferring evidentiary rulings until trial, courts can properly resolve questions of foundation, relevancy, and prejudice." Telewizja Polska USA, Inc. v. Echostar Satellite Corp. , No. 02 C 3293, 2005 U.S. Dist. LEXIS 4502, at *3, 2005 WL 289967, at *1 (N.D. Ill. 2005). Such a result aligns with the Rules' broad tenor: "In fairness to the parties and their ability to put on their case, a court should exclude evidence in limine only when it is clearly inadmissible on all potential ground." United States v. Gonzalez , 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) (emphasis added); cf. Luce v. United States , 469 U.S. 38, 41, 105 S. Ct. 460, 463, 83 L.Ed. 2d 443 (1984) (emphasizing how a "court must know the precise nature of ... testimony" in performing the balancing required under Rule 609(a)(1)).
Tucker Mgmt., LLC v. United Nat'l Ins. Co. , No. 13-CV-626-JWD-RLB, 2016 WL 8261722, at *2 (M.D. La. July 8, 2016)
Nonetheless, the parties have asked the Court to rule in advance of trial on Plaintiff's objections to certain parts of his medical records which Defendant intends to introduce. To the extent the Court is able to do so, it will rule on those objections. Where it is impossible to do so, it will defer the ruling until time of trial.
ANALYSIS
Defendant has broken the contested exhibits into 58 blocks on its chart. As mentioned above, Plaintiff has withdrawn his objection to 12 of these (1, 2, 6, 12, 17, 19, 21, 34, 36, 39, 40 and 55), leaving 46 contested excerpts. The Court provides a ruling herein in chart form on each of the 46 contested excerpts at issue. However, for context and in support and explanation of the Court's rulings, the Court makes these general observations.
The excerpts being offered by Defendant are set out, pursuant to the Court's order, in Defendant's chart. The Defendant also provided the documents from which the excerpts were drawn. (Docs. 167-1, 199, 199-1 and 201-2 and 201-3.) As to each excerpt where the Court denies Plaintiff's motion, it is only the excerpts, and not the entire document, which will be allowed into evidence.
a. Relevance
Plaintiff spends very little of his argument on the issue of relevance, concentrating on his other arguments. (Doc. 184 at 8.)
"Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. "Relevant evidence is admissible unless any of the following provide otherwise: the United States Constitution; a federal statute; [the Federal Rules of Evidence]; or other rules prescribed by the Supreme Court." Fed. R. Evid. 402. "Irrelevant evidence is not admissible." Id.
Tingle v. Hebert , No. CV 15-626-JWD-EWD, 2018 WL 2287028, at *5 (M.D. La. Apr. 23, 2018).
In determining relevance, the Court should view the issue of relevance broadly.
Evidence need not be conclusive of a material issue in order to be admitted. Fed. R. Evid. 401 defines relevant evidence as any evidence "having any tendency
to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See, e. g., United States v. Ashley , 555 F.2d 462 (5th Cir. 1977) ; United States v. Carter , 173 U.S.App.D.C. 54, 522 F.2d 666 (1975). Generally, all relevant evidence is admissible, under Fed. R. Evid. 402, unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentations of cumulative evidence." Fed. R. Evid. 403. Under the Federal Rules of Evidence, the trial judge has broad discretion to admit evidence, and the exercise of that discretion will not be reversed unless a clear abuse of discretion is shown. See, e. g., United States v. Grimm , 568 F.2d 1136 (5th Cir. 1978) ; United States v. Bibbs , 564 F.2d 1165 (5th Cir. 1977).
United States v. Madera , 574 F.2d 1320, 1322 (5th Cir. 1978)
To the extent that Defendant's proposed excerpts inform the issues outlined by Defendant as summarized above and briefed at Doc. 168 at 6-9, the Court finds that they are, for the most part, relevant. At the heart of Plaintiff's case on liability is the effectiveness of communication between Plaintiff and Defendant's employees. A second issue is whether or not the technique(s) used by Defendant to communicate with Francois played a role in the aggravation of his wounds and pressure sores. The medical record entries submitted by Defendant go, for the most part, in one way or the other, to these two issues.
As to the first issue, Defendant insists that many of these entries are "not offered to prove effectiveness or quality of communication with Plaintiff" (Doc. 168 at 10). Rather, they are offered for other purposes, such as to show that Plaintiff was using a dry-erase board rather than an in-person interpreter while an in-patient in the hospital (id. at 9); that he used written questions to communicate (id. at 10); and to impeach his testimony that he "prefers" in-person interpreters.
As to the second issue, these excerpts address the cause of Plaintiff's damages by showing, inter alia , the status of his wounds at various points in time, instructions given to him and family members regarding proper home care for his wounds, and the lack of patient compliance with those instructions. (Id. at 11-29.) These entries address the issue of causation, i.e. whether the aggravation of Plaintiff's wound were caused by Defendant's failure to adequately communicate with Plaintiff or, on the other hand, by Plaintiff's failure to follow wound care instructions given to him by the providers, which instructions are referenced in the records. While there may be other reasons to exclude some of these entries from evidence, there is no doubt that the excerpts addressing these general issues are relevant. Unless ruled irrelevant in its Chart ruling, the Court finds that the excerpts are relevant.
b. Hearsay or not – Rule 801(d)(2) and 801(c)(2)
Defendant argues that many of the excerpts (items 3, 4, 7, 8, 10, 11, 13, 14, 15, 18, 22, 24, 25, 27, 28, 29, 30, 33, 44, 47, 50, 54, and 58) are not hearsay at all under Rule 801(d)(2) because the statements in question are "offered against an opposing party and (A) [were] made by the party in an individual or representative capacity" or "(C) [were] made by a person authorized to make a statement on the subject" or "(D) [were] made by a party's agent ... on a matter within the scope of that relationship and while it existed." (Doc. 168 at 9-28.) While not noted in its chart, Defendant also argues in its reply that some of these entries are not being offered for the truth of the statements contained in them but for another purpose (e.g., to give "notice") and hence do not meet the definition of hearsay under Rule 801(c)(2). (Doc. 191 at 1-4.)
The Court does not include the items where Plaintiff waived his hearsay objection.
With respect to 801(d)(2), Defendant ignores altogether that the statement made by the party (i.e. Plaintiff or his alleged representative) is itself recounted by another out of court declarant (the record maker) and is hearsay. Before the Court can even reach the statement allegedly made by the party, Defendant must show that the record entry itself is not hearsay or is subject to an exception. In many instances, Defendant has failed to do so. Secondly, in some instances, the statement attributed to Plaintiff was either not made by Plaintiff (as where, for instance, in excerpt 18, Bates 7989, the statement is made by Plaintiff's grandmother), or it is entirely unclear who made the specific statements Defendant seeks to introduce (as where, for example, in excerpt 7, Bates 7969, the patient, the patient's mother and the patient's grandmother are all listed as the "source of patient information". See also, excerpt 5, Bates 7957: "Source of history: the patient, grandmother and chart review"). In addition, while Defendant argues that the statements of Plaintiff's grandmother, mother and Paula Rodriguez can be treated as Plaintiff's statements for purposes of this Rule, Defendant has failed to make a sufficient showing that they were Plaintiff's agent, employee or authorized representative under Rule 801(d)(2).
Defendant argues for some entries, that they are being introduced not for the truth of the statement but to show notice "on information bearing on chronic wound prevention." (Doc. 191 at 2.) An example pointed to by Defendant is entry 22, Bates 8006 which states: "OT educated pt. on the importance of trying to stay out of bed and upright in chair or recliner as much as possible outside of therapy hours. He verbalized understanding and was agreeable to staying up in chair after OT session this PM until after dinner."
It is axiomatic that "an out-of-court statement only constitutes hearsay if its relevance depends on the truth of the matter asserted by the out-of-court declarant." 30B Jeffrey Bellin, Federal Practice & Procedure § 6718 (2020 ed.). Despite Defendant's protests to the contrary, these statements are being offered for the truth of the statements since they are only relevant if they are true, e.g. that Plaintiff was told about steps that could be taken to improve his wound condition and that he verbalized an understanding of those instructions. This is fundamentally different from the documents Defendant compares this to, i.e. ones where, whether true or not, Defendant was made aware of complaints that would arguably trigger a duty to respond. Thus, this proffered exhibit and similar excerpts are hearsay.
c. Hearsay – Applicability vel non of La. R.S. 13:3714(A)
In support of its argument that certified copies of medical records are admissible in this case, Defendant cites La. R.S. 13:3714(A) and this Court's decisions in Ariza v. Loomis Armored, U.S., LLC , No. 13-419, 2016 WL 297702, at n.6 (M.D. La. January 22, 2016) and Williams v. Sanders , No. 13-97, 2016 WL 81272 * 1 (M.D. La. January 7, 2016). La. R.S. (Doc. 168 at 2-4.) This same argument was made by Defendant in this case (Doc. 125) in connection with another motion by Plaintiff (Doc. 124) and rejected by the Court. (Doc. 185; Francois v. General Health System , No. 3:17-CV-533, 437 F. Supp. 3d 530, 534–36 (M.D. La. March 3, 2020)).
La. R.S. 13:3714(A) states:
A. Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A), certified or attested to by the state health care provider or the private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.
Defendant misreads Ariza and Williams. Neither case holds that this Louisiana statute can somehow avoid or overcome conflicting Federal Rules of Evidence. In Ariza , a case based on both Louisiana as well as federal substantive law, (Docket No. 13-419, Doc. 1 at 1), the Court granted the motion in limine to exclude the medical records at issue based on the Federal Rules of Evidence hearsay rules and found that the records did not fall into the business records exception to that rule. Ariza , 2016 WL 297702 at *4-5 ("Notes scratched on a pad by a doctor or an email written at a patient's request are not the kind of official records to which Rule 803(6) applies, for they are too informal and too unique to the individual to be classified as records of a regular business activity. However, according to Plaintiff, a foundation may still be laid as to Exhibits 6 and 8, as the doctors who drafted those notes are scheduled to testify.") In that connection, the Court noted that La. R.S. 13:3714(A) might possibly be used to assist in laying that foundation at trial. ( Id. at n. 6.)
Similarly, in Williams , there was no hearsay issue. There, the issue was the relevance of the pro se plaintiff's medical records. The Court held that its finding that plaintiff's medical records were relevant in showing injuries that demonstrated excessive force was "buttressed" and "strengthened" by the full control over those records exercised by the defendant's employer and the employer's certification of those records under 13:3714(A). Williams , 2016 WL 81272 at *1. The Court went on to hold that, to be admissible, however, the plaintiff would need to lay a proper foundation for the introduction of the records at trial. Id. at *2.
"It is well-settled that federal law governs the admissibility or other use of evidence in a federal proceeding, even if the evidence was obtained in violation of state law." United States v. Edwards , 79 F. Supp. 2d 645, 648 (M.D. La. 1999) (citations omitted). "The principle that governs today is stated easily.... [I]f a[ ] [Federal Rule of] Evidence [ ] covers a disputed point of evidence, the Rule is to be followed, even in diversity cases, and state law is pertinent only if and to the extent the applicable Rule makes it so or it provides the federal court with guidance in the construction and application of the Evidence Rules." Offered for the "Truth of the Matter Asserted", 19 Charles A. Wright and Arthur R. Miller, Federal Practice & Procedure § 4512 (3d ed. 2020); See also, Jacked Up, LLC v. Sara Lee Corp. , 291 F. Supp. 3d 795, 800 (N.D. Tex. 2018), aff'd , No. 11-3296-L, 2018 WL 2064126 (N.D. Tex. May 2, 2018) (stating that, even "[i]n a diversity case, the admissibility of evidence is a procedural issue governed by federal law.") (citing Reed v. Gen. Motors Corp. , 773 F.2d 660, 663 (5th Cir. 1985) ); Dawsey v. Olin Corp. , 782 F.2d 1254, 1262 (5th Cir. 1986) ("[W]e need not concern ourselves with the Louisiana statute because the statute does not apply in federal court; questions concerning the admissibility of evidence in federal court are governed by the Federal Rules of Evidence.") (citing Fed. R. Evid. 1101 ; Pollard v. Metropolitan Life Insurance Co. , 598 F.2d 1284, 1286 (3d Cir. 1979) ). Thus, in determining whether the statements made in the medical records are admissible, the Court turns to the Federal Rules of Evidence.
d. Statement Made for Medical Diagnosis or Treatment - Rule 803(4)
As to many of the excerpts, Defendant contends that Rule 803(4) applies as an exception to the hearsay rule, arguing that the statement "is made for – and is reasonably pertinent to – [Plaintiff's] medical diagnosis and treatment and describes medical history; past or present, symptoms or sensations; their inception; or their general cause." With respect to any statement found in the medical records made by someone other than the patient, this exception does not apply. This Court has previously stated: "The exception contained in Federal Rule of Evidence 803(4), which permits the admission of statements made for the purposes of medical diagnoses or treatment, is limited to statements made by the person seeking medical treatment or care." Gray v. Energy XXI GOM LLC , No. CIV.A. 12-165-JJB, 2013 WL 4011990, at *6 (M.D. La. Aug. 5, 2013) (citing Field v. Trigg County Hosp., Inc. , 386 F.3d 729, 735–36 (6th Cir. 2004) ; Bombard v. Fort Wayne Newspapers, Inc. , 92 F.3d 560, 564 (7th Cir. 1996) ; Stull v. Fuqua Industries, Inc. , 906 F.2d 1271, 1273 (8th Cir. 1990) ; Bulthuis v. Rexall Corp. , 789 F.2d 1315, 1316 (9th Cir. 1985).) See also, Tucker v. Nelson , 390 F. Supp. 3d 858, 862 (S.D. Ohio 2019) (holding exception only applies to statements made by the one actually seeking or receiving medical treatment); Truschke v. Phyllis Chaney, LPN , No. 5:17-cv-93, 2019 WL 1960344, at *5 (S.D. Ga. May 2, 2019) (statements made by doctors to plaintiff are not admissible pursuant to the Fed. R. Evid. 803(4) ).
An example of such a proffered excerpt where Defendant claims 803(4) applicability (Doc. 184-1 at 5) but does not qualify is excerpt 8, Bates 7970: "Discussed with patient if medication non-compliance continues, we will be unable to continue to provide medical care for the patient." Because this and similar statements proffered by Defendant are not made by the person seeking medical treatment, Plaintiff, 803(4) does not apply.
With respect to statements made by the patient, "... Rule 803(4) does not require that each statement be ‘necessary’ for medical treatment; it requires only that statements be "reasonably pertinent to diagnosis or treatment." " United States v. Santos , 589 F.3d 759, 763 (5th Cir. 2009). See also Reasonably Pertinent to Treatment or Diagnosis, 30B Jeffrey Bellin, Federal Practice & Procedure § 6845 (2020 ed.) ("The text of Federal Rule of Evidence 803(4)(A) requires an objective inquiry into whether the proffered statements were ‘reasonably pertinent’ to the medical provider's diagnosis and treatment tasks. Importantly, the proffered statement does not need to be necessary to treatment, only reasonably related to that purpose.").
e. Records of a Regularly Conducted Activity – Rule 803(6)
Defendant claims that certain excerpts fall within the 803(6) exception: "records of a regularly conducted activity." As a general rule, "[m]edical records are routinely admitted as evidence under the business records exception to the hearsay rule. Therefore, the medical records are admissible if it was kept in the course of regularly conducted business activity." Logan v. Westfield Ins. Co. , No. 17-29, 2020 WL 406785, at *3 (W.D. La. Jan. 24, 2020). See also Wilson v. Zapata Off-Shore Co. , 939 F.2d 260, 271 (5th Cir. 1991) (" Rule 803(6) provides a hearsay exception for records kept in the course of any regularly conducted business activity, which would include hospitals." (emphasis in original, citations omitted)).
However, as discussed elsewhere in this ruling, medical records qualifying under this exception may nonetheless be excluded for lack of trustworthiness or for their potential to mislead or confuse the jury or create undue prejudice.
Defendant contends that essentially every entry it has submitted is subject to the 803(6) exception by the mere fact that the records are certified by the records custodian. (Doc. 168 at 2, 9-28.) Defendant argues that "the Eastern District Court has further specifically ruled that the statement of the custodian affirming that the certification is made in the custodian's ordinary course of business qualifies the medical record as an exception to the hearsay rule under Federal Rule 803(6)." (Id. , citing Rodgers v. Hopkins Enters. of Miss., LLC , No. 17-6305, 2018 WL 6335778 (E.D. La. Dec. 5, 2018) and Wright v. National Interstate Ins. Co. , No. 16-16214, 2017 WL 3686562 (E.D. La. Aug. 25, 2017).) Neither case stands for the broad and immutable proposition for which Defendant cites them. For instance, with respect to any statements made in the medical records ascribed to Plaintiff or any other "outsider", this exception does not apply. As stated by this Court in connection with another ruling in this case,
"An important distinction arises when a business record contains a hearsay statement of an ‘outsider’ to the business. If the source of the statement is an outsider, Rule 803(6) "does not, by itself, permit the admission of the business record." Wilson v. Zapata Off-Shore Co. , 939 F.2d 260, 271 (5th Cir. 1991). "To be admissible, the outsider statement must itself qualify for admission over a hearsay objection, for example by satisfying a separate hearsay exception." 30B Charles A. Wright and Jeffrey Bellin, Federal Practice & Procedure § 6866 (2018). See also, Bradley v. Sugarbaker , 891 F.3d 29, 35 (1st Cir. 2018) (refusing to apply Rule 803(6) exception to patient's statement in hospital record).
Francois , 437 F. Supp. 3d at 537. See also Bellin, supra , § 6866 ("As a prototypical example of the outsider principle, a patient's description of his medical history could not be admitted under Rule 803(6) even though the description appeared in the business records of a hospital.").
This principle applies not only to the statements of Plaintiff in the records but also to other "outsiders" such as Plaintiff's mother, grandmother and Paula Rodriguez. See, e.g. entry 27, Bates 8026: "grandmother states she has two options ..."
f. Expert and lay opinion testimony
At the heart of the present case is the question of Plaintiff's ability to adequately communicate with the health care providers employed by Defendant. Each side has an expert addressing this question. Each party filed a Daubert motion to exclude the others' expert. (Docs. 46 and 48.) For oral reasons given (Doc. 127), the Court granted in part and denied in part both motions. (Doc. 121.) In addition, it is anticipated that both sides will have lay witnesses who will testify as to their perceptions of Plaintiff's ability or inability to effectively communicate with Defendant's employees in different scenarios. Plaintiff complains that Defendant is attempting through these medical records to improperly insert expert and lay opinion evidence. (Doc. 184 at 3, 6-8 and Doc. 184-1 at 1-37.) No expert reports have been provided as to any of these individuals whose views are captured in the proffered records and, argues Plaintiff, their opinions should therefore not be allowed. To the extent that these constitute lay opinions, it will be impossible for Defendant to show that the opinions are "rationally based on the witness's perception," as required by Fed. R. Evid. 701(a) since no witnesses will testify at trial in connection with the records. Therefore, these opinions should not be allowed. (Doc. 184 at 7, citing United States v. Garcia , 291 F.3d 127, 140 (2d Cir. 2002).)
Defendant denies such phrases as "poor historian" are expert opinions (Doc. 191 at 6) but maintains that, to the extent that they are, any prejudice to Plaintiff can be cured with a limiting instruction. (Doc. 191 at 6.) Defendant fails to address Plaintiff's argument regarding lay opinion evidence.
To the extent that any of the statements call for expert testimony, the Court rules that they are excluded since none of the record keepers involved in the proffered exhibits have been listed as experts, nor has Defendant provided Rule 26 expert reports. But even if their statements constitute merely lay opinion, Rule 701(a) requires that the opinion be one "rationally based on the witness's perception." Before the witness is allowed to give lay opinion testimony, a foundation must be laid which demonstrates that the factual basis upon which the opinion is given is rationally based on the witness's perception and absent that foundation, the opinion is inadmissible. Baxter v. Anderson , No. 3:16-CV-142, 2018 WL 1959596, at *3 (M.D. La. Jan. 25, 2018) ("[I]t is impossible without context and foundation to rule on the admissibility of such [ Rule 701 ] opinion testimony in the abstract."). See also United States v. Garcia , 291 F.3d 127, 140 (2d Cir. 2003) ("[A] witness offering a lay opinion must base his opinion on his own personal knowledge, which must be established to the court and jury. ‘When a witness has not identified the objective bases for his opinion, the proffered opinion obviously fails completely to meet the requirements of Rule 701... because there is no way for the court to assess whether it is rationally based on the witness's perception." (quoting United States v. Rea , 958 F.2d 1206, 1212 (2d Cir. 1992) ); "Rationally Based on the Witness's Perception", 29 Victor J. Gold, Federal Practice & Procedure § 6254 (2020 ed.) ("While Rule 701 requires that lay opinion must be rationally based on perception, the provision is silent as to whether the proponent of the opinion must elicit the details concerning the witness' perceptions before the opinion is given. However, the courts have held that such a foundation must be established before the opinion is admissible. The foundation must refer to the specific matters perceived; vague, general statements about the basis for lay opinion are insufficient.").
Furthermore,
Even if a witness has perceived a matter with his senses, the second component of personal knowledge requires that the witness has the experience necessary to comprehend those perceptions. In many cases, comprehension requires no more experience than that presumably universal to the human condition. However, where the lay witness observes matters that can be comprehended only with specialized experience, it may be necessary to demonstrate that the witness has such experience.
Gold, supra , § 6254.
Here, because of Plaintiff's alleged deafness and intellectual limitations, whether or not Plaintiff understood what was being said and, if so, the extent of that understanding is, as mentioned above, the main issue in the case and the subject of expert testimony on both sides. So, when a nurse writes "Patient deaf but can communicate via writing back and forth..." (Doc. 167-1 at 17, excerpt 17, Bates 7989), this is an opinion. What training or experience does the writer have in communicating with a deaf person? What factors led the nurse to reach this conclusion? What was the level of communication? What difficulties were encountered in the communication? If there was an interpreter present, what were that person's qualifications? These questions and many others are unanswered and unanswerable since no live witness will be presented. They are questions central to the case.
Similarly, when an entry reads, "Patient in bed communicating with dry erase board and sign language through family member at bedside" (Doc. 167-1 at 3, excerpt 3, Bates 7965), this is expressing an opinion. What was being communicated on the dry erase board and what was being communicated by sign language to relatives? How effective was the communication? Etc. Because Defendant is not calling the writer to testify, there is no way for Defendant to make the requisite factual showing regarding what he or she perceived and whether the writer has sufficient experience or expertise to give this opinion rationally based on the witness's perception. Further, were the Court to allow this into evidence, there would be no way for Plaintiff to cross-examine the writer and test the level of that experience or the details of what he/she saw to challenge whether Plaintiff was truly "communicating." The limitations of this exhibit are demonstrated by the exhibit itself, which goes on to say, "History limited by communication," (itself, an opinion). (Id. ) In what way was it limited? Why? The records provide no answers.
Examples of similar excerpts are 3, 4, 5, 10, 11, 13, 14, 15, 16, 18, 22, 24, 25, 38, 44, 46, and 47. Thus, to the extent that these entries are not hearsay or are subject to an exception to the hearsay rule, they are excluded because of an insufficient foundation laid to admit Rule 701 lay opinion testimony. In addition, those entries that deal indirectly with Plaintiff's ability to understand, e.g. those entries that purport to show that Plaintiff was instructed regarding wound care and/or acknowledged understanding those instructions and/or disregarded them, the Court's ruling is the same since they implicitly convey the opinion that the communication was effective. These include excerpts 7, 8, 9, 20, 22, 23, 24, 25, 26, 29, 32, 33, 28, 45, 46, 48, 49, 50, 53 and 54.
There are also excerpts that describe the state of healing of Plaintiff's wound. An example is excerpt 52 (D31, Bates 8214, Doc. 167-1 at 53). That proposed entry reads: "...Patient is also showing steady improvement of his [left] ischium area wound. His wound surface is healing on the wound bed and around the edges." This entry is relevant to the damages and causation issues and is a valid 803(6) exception to the hearsay rule. While it does express an opinion, it does not involve any express or implied opinion regarding Plaintiff's ability to communicate, and therefore is more in the nature of an observation than a matter of interpretation or speculation. Thus, the Court exercises its discretion and denies Plaintiff's motion as to this and similar excerpts. (See, e.g. excerpts 41, 42, part of 43 and 52.)
In closing, the Court must limit its holding. The Court is not finding that, in all cases, medical records are inadmissible or that, in every situation, such documents cannot sufficiently convey that a deaf patient understood instructions that were given to him. Rather, the Court is merely holding that, under the unique facts of this case—for example, where no corroborating witness subject to cross examination has been or will be called, where the level of understanding is the subject of contradictory expert opinions, where there are a considerably large number of documents at issue that would subject the jury to numerous mini-trials, and where the records are almost completely devoid of any foundation establishing the basis upon which the provider concluded the deaf patient did in fact understand—the records at issue are inadmissible.
g. Rule 403 Balancing
Plaintiff argues that, even if the proposed exhibits are not hearsay, or are subject to a hearsay exception, or are otherwise admissible, they should be excluded Fed. R. Evid. 403.
Entirely discretionary, Federal Rule of Evidence 403 allows a court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. According to the relevant advisory committee, " ‘[u]nfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advisory committee note. As case law further explains, "evidence is prejudicial [for purposes of Rule 403 ] only when it tends to have some adverse effect upon accused beyond proof of fact or issue that justified its admission into evidence, by proving some adverse fact not in issue or exciting emotions against accused." United States v. Figueroa , 618 F.2d 934, 943 (2d Cir. 1980).
Tucker Mgmt. , 2016 WL 8261722, at *1.
Plaintiff argues that, because these 58 medical record excerpts cover multiple different health care providers at different facilities, no one of whom is being called to testify at trial, it will require Plaintiff to litigate multiple "cases within a case" (Doc. 184 at 3), "without the benefit of cross examining the medical professional[s] who wrote down the out of court statement[s]." (Doc. 184-1 at 3.) To the extent any of these documents are relevant, their "relevance is outweighed by the danger of unfair prejudice due to the lack of cross examination." (Id. at 4.) Because the witnesses are not being called live, it allows Defendant to "utilize ‘back door’ expert testimony without the benefit of challenging those opinions on cross examination." (Id. at 5-6; see also id. at 7, 8, 12, 14, 15, 22, 25, 28, 30, and 35.)
Defendant does little to address Plaintiff's arguments, responding only that there are no expert opinions in the proffered entries and that any prejudice can be remedied with a limiting instruction. (Doc. 191 at 6.) Defendant fails to address at all Plaintiff's argument regarding lay opinion testimony and the practical effect of requiring Plaintiff to try multiple cases within a case without the benefit of cross examination.
As discussed previously, a central issue in this case is how well Plaintiff gave, received and understood information to and from healthcare providers by way of a variety of communication techniques utilized at different times, including using a live interpreter, video remote interpreting, family members and writing. The issue is a complex one and the position of Plaintiff and Defendant on this issue is starkly different, as is the evidence that will be presented on this point through both lay and expert witnesses. While the medical records from Defendant's facilities will be introduced and used by both sides, these records are fundamentally different from those being considered here in that, as to the former, there will be lay witnesses who will testify in connection with the records and events described therein. Plaintiff will therefore have the right to examine or cross examine those witnesses on points such as the details of the interactions and the witness's level of training with deaf or impaired patients. And while both sides have experts who will provide their view of what those records mean on the ultimate question, the experts will have the benefit of the testimony of those who were actually involved in the interactions.
Here, Defendant seeks to introduce the medical records at issue in this motion without any accompanying testimony. As Plaintiff correctly argues, if the records at issue here are admitted, there will be no such ability to cross examine the record makers. Many of these records either directly or implicitly express an opinion on the critical issue of Plaintiff's ability to communicate under various scenarios. While Defendant posits that it is not offering the evidence for that purpose, it is clear that the jury will almost certainly use it as such. While certain of these records may fall into the 803(6) exception to the hearsay rule, the Court must still consider the implications of these rules under Rule 403. In doing so, the Court finds that the potential for the jury being confused or, worse, misled, as well as the unfair prejudice to Plaintiff in being unable to cross examine the record makers is such that those records touching on Plaintiff's communication with providers must be excluded.
[A]dmissibility of all such entries [under Rule 803(6) ] is not assured. First, where indications of lack of trustworthiness are shown, which may result from a lack of expert qualifications or from a lack of factual support, exclusion is warranted. Moreover, inclusion of opinions or diagnoses within the rule only removes the bar of hearsay. In the absence of the availability of the expert for explanation and cross-examination, the court may conclude that the probative value of this evidence is outweighed by the danger that the jury will be misled or confused. This is of particular concern if the opinion involves difficult matters of interpretation and a central dispute in the case, such as causation. Under these circumstances, a court operating under the Federal Rules, like earlier courts, is likely to be reluctant to permit a decision to be made upon the basis of an un-cross-examined opinion and may require that the witness be produced.
Sims v. State Farm Mutual Automobile Insurance Company , No. 4:13CV00371, 2016 WL 3511712, at *3 (E.D. Ark. Jan 13, 2016) (quoting McCormick On Evidence § 293 (John W. Strong, Ed., 4th ed. 1992) ) (citing Raycraft v. Duluth, Missabe, and Iron Range Ry. Co. , 472 F.2d 27 (8th Cir. 1973) ); see also Nagle v. Gusman , No. CV 12-1910, 2016 WL 560688, at *5 (E.D. La. Feb. 12, 2016) ("The average juror does not have the specialized knowledge or experience necessary to understand or interpret a patient's medical records." (citing Greeno v. Daley , 414 F.3d 645, 658 (7th Cir. 2005) (noting that understanding medical records and patient treatment likely requires expert testimony); Fowler v. Carrollton Pub. Library , 799 F.2d 976, 982 (5th Cir. 1986) (holding that a district court erred in admitting medical records "with no accompanying expert explanation of their significance")); Sims, supra , quoting Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence, § 8.45 (1995) ("Where the physician who made the diagnosis testifies, or where another with firsthand knowledge testifies, admitting reports reflecting difficult, elaborate, or unusual diagnoses seems easier to justify. Without such testimony, risks of confusing the issue or misleading the jury are likely to justify exclusion under FRE 403."). Included in these records are a number of excerpts where the recorder indicates that that the patient and/or the patient's relative was instructed on some aspect of wound care. This kind of entry is relevant to damages and causation. Plaintiff argues that this kind of entry is intended to prove Plaintiff's comparative fault which is not a defense in this kind of case. (Doc. 184-1 at 8-9.) Defendant responds that it is not offering this evidence to establish comparative fault but rather on the issue of causation and to counter Plaintiff's argument that he was unable to learn about proper wound care. (Doc. 191 at 4-5.) As stated above, the entries are relevant to the issue causation. But this does not answer the question of whether they suffer from the potential for confusing or misleading the jury as previously discussed in connection with other kinds of entries.
An example of this kind of record is excerpt 24 (D28, Bates 8011) which reads, in pertinent part:
Patient nodded head that he understood importance of following a bowel program, as well as risks of developing pressures (sic) sores with poor positioning in bed and lack of movement. Encouraged patient to have more awareness of his bodies (sic) needs with skin checks, proper diet and movement.
Patient and patient's grandmother nodded head in understanding of self-care needs upon discharge." Part of the reason Defendant seeks to introduce this entry is to impeach the testimony of Plaintiff, Plaintiff's lay witnesses and Plaintiff's expert that Plaintiff was compliant with his wound care instructions. (Doc. 184-1 at 16.) The first and third entries raise the 701 and 403 concerns already discussed above and are excluded. The second sentence is more problematic in that it only concerns what the recorder told Plaintiff and his grandmother. However, even if isolated, it suggests, without the ability of Plaintiff to challenge this assumption on cross examination, that Plaintiff received and understood the instruction. Thus, because of the potential for misleading and confusing the jury, the second sentence is excluded as well. Thus as to the entries which purport to show that Plaintiff (or Plaintiff and someone else) was/were instructed on wound care, the Court finds that the probative value of these is outweighed by the prejudicial effect, which, as the Court previously mentioned, is compounded by the inability of Plaintiff to cross examine the recorders.
There is a separate reason that some of the proffered exhibits may confuse or mislead the jury: in a number of the entries, the information charted is coming from multiple sources (e.g. Plaintiff, grandmother, mother, Paula Rodriguez), and it is impossible to determine how much of the information charted came from Plaintiff. See Petrocelli v. Gallison , 679 F.2d 286, 289–91 (1st Cir. 1982) (finding that two entries in hospital record stating that the nerve was previously severed, the most critical issue in case, were properly excluded; it was impossible to determine whether patient or physician was source of information, and plaintiff made no attempt to depose or otherwise seek clarification from physicians).
Defendant suggests that these issues can be resolved with a limiting instruction and likens the case to the Court's ruling in allowing emails from Ms. Rodriguez into evidence, with a limiting instruction, to show notice. (Doc. 191 at 6, citing Doc. 166.) The Court disagrees that these are comparable. In the case of the Rodriguez emails, Ms. Rodriguez will testify at trial and can be cross examined while here, cross examination of those who created the records is not possible. Here, the Court finds that a limiting instruction would not sufficiently cure the concerns generated by the admission of these exhibits. Finally, because there are 58 separate excerpts by multiple providers at multiple facilities, the Court also agrees with Plaintiff that allowing many of these into evidence would potentially require numerous mini-trials within the main trial. The Court finds that, under these unique facts, this would, to use the words of Rule 403, waste time and cause undue delay. The Court's rulings on each entry is set out in the Chart at the conclusion of this decision.
h. Impeachment
Defendant maintains that the vast majority of the proposed entries can properly be used for impeachment. (Doc. 168 at 6-7.) For instance, Defendant intends to use the statements of Plaintiff, Leona Deemer and Paula Rodriguez reflected in the medical records to impeach their anticipated in court testimony. (Id. at 6.) In addition, Defendant contends the in-court expert testimony of Plaintiff's expert, Judy Shepherd-Kegl "that in-person interpreters are the only effective communication for [Plaintiff] in a medical setting" can be impeached by some of the proposed records. (Id. , at 6-7, emphasis in original.) While Plaintiff seems not to take issue with the proposition that extrinsic evidence can be used to impeach a witness's in court testimony, he argues that either the extrinsic evidence is excludable on other grounds (like hearsay or on 403 grounds) or that the proffered exhibit doesn't actually contradict the anticipated testimony.
Excerpts 3, 4, 5, 7, 8, 9, 11, 13, 14, 15, 16, 18, 20, 21, 22, 23, 24, 25, 26, 28, 33, 35, 38, 42, 43, 44, 45, 46, 47, 48, 49, 59, 51, 53, 56 and 58. In some of these excerpts, Defendant did not argue directly for impeachment but this was plain from Defendant's comments. (Excerpts 3, 4, 21, 28, and 58.)
Indeed, in one instance, Plaintiff states that "[a]s to purported party admissions by Ms. Deemer and Mr. Francois, Plaintiff concedes that these statement (sic) is sufficient (sic) specific that Defendant should be permitted to use the page to impeach Ms. Deemer and Mr. Francois, if appropriate and somehow relevant." Entry 20, Doc. 184-1 at 20; see also entry 13.)
Ultimately, whether a document can be used for impeachment must wait for trial where the Court can hear the foundational question, the answer, determine whether the proper steps for impeachment follow, and whether the document may properly be used for impeachment. However, the Court provides the following for guidance to the parties.
With respect to statements made by anticipated witnesses that are found in the records (e.g., Ms. Deemer, Ms. Rodriguez and Mr. Francois), the statements themselves are not hearsay and may be used to impeach. See Fed. R. Evid. 607, Advisory Note. ("If the impeachment is by a prior statement, it is free from hearsay dangers and is excluded from the category of hearsay under Rule 801(d)(1).") But the statements of these witnesses are embedded in a record created by another out of court declarant, which is itself hearsay. Therefore, in order for the statements to be used for impeachment, there must be an exception to the hearsay statement of the recorder.
With respect to other entries (e.g. descriptions of Plaintiff using the dry erase board to communicate to impeach Shepherd-Kegl's testimony that an in-person interpreter is the only effective way for Plaintiff to communicate in a medical setting), these statements could be used for "impeachment by contradiction" if they were given in court by the eyewitness. But here, Defendant offers that extrinsic evidence by way of records not supported by eyewitness testimony. In such a circumstance, the extrinsic evidence is collateral and cannot be used for impeachment if it is inadmissible as hearsay or on other grounds. As one noted commentator stated:
"Impeachment by contradiction occurs when a party offers evidence to prove that a fact to which a witness testified is not true. While the Evidence Rules do not explicitly recognize contradiction as a basis for attacking credibility, the admissibility of contradiction evidence can be inferred from the relevance rules and Rule 607." Bases For Attacking Credibility—Contradiction, 27 Victor J. Gold, Federal Practice & Procedure § 6096 (2d ed. 2020).
[I]t is important to emphasize that contradiction evidence is non-collateral only if it is admissible, not just probative, of a substantive issue in the case. This means that the evidence is collateral if some exclusionary rule renders the evidence inadmissible to prove the substantive fact in question. So in the murder prosecution mentioned in the preceding paragraph, even though extrinsic evidence of the victim's death goes to a key substantive fact, that evidence is collateral if it is inadmissible hearsay. Once more, Rule 403 should produce the same result. Under Rule 403, the probative value of the evidence to prove the substantive fact would be disregarded if it is inadmissible for that purpose while the danger of unfair prejudice would be enhanced by the risk that the jury might misuse the evidence for this inadmissible substantive purpose.
27 Victor J. Gold, Federal Practice & Procedure § 6096 (2d ed. 2020).
Therefore, the motion is granted as to Defendant's use for impeachment by contradiction any excerpt the Court has ruled otherwise inadmissible. As to any other excerpt, the motion is deferred until trial.
i. Ruling
Table of Medical Records Exhibits to be Offered with Specific Positions as to Each's Admissibility