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Granger v. Odyssea Vessels, Inc.

United States District Court, Eastern District of Louisiana

March 16, 2015

JAMES P. GRANGER
v.
ODYSSEA VESSELS, INC., ET AL

SECTION "C"

ORDER AND REASONS

HELEN G. BERRIGAN UNITED STATES DISTRICT JUDGE

IT IS ORDERED that:

1. Exhibit 16 - Incident Report by "Odyssea" regarding James Granger, dated 4-19-13

Defendants object that this exhibit contains hearsay, specifically relating to statements about pain complaints by Granger, and asks that the Court exclude any such hearsay statements. Rec. Doc. 35 at 1-2. Plaintiff responds that thereport falls under an exception to the hearsay rule under Fed. R Evid. 803(6) and 804(a)(5) because it is a record of a regularly conducted activity. Rec. Doc. 37 at 1-2. The Court finds that the exhibit will qualify as an exception under the hearsay rule provided that plaintiff is able to corroborate through witness testimony at trial that the requirements of Rule 803(6) are met. Defendants further object that the report is improperly used to prove liability for the incident, though the report itself does not address liability, and will be cumulative of testimony of witnesses that plaintiff has subpoenaed for trial. Rec. Doc. 35 at 2. The Court disagrees that thereport is unrelated to liability. The "Description of Incident" field provides an account of the events leading up to James Granger's injury, which is relevant to the is sue of liability. As to whether the report will be cumulative, the account represents the impressions of Captain Mark Nevala, whose vantage point during the events differed from other potential witnesses. Plaintiff states that Capt. Nevala has been subpoenaed but has been offshore and may not be available at trial. Thus, the Court finds that the exhibit is cumulative only if Capt. Nevala is available to testify at trial. Accordingly, the objection is OVERRULED IN PART and DEFERRED IN PART.

2. Exhibit 17- Performance Evaluation of James Granger, 8/20-22/12

Defendants object that this exhibit is irrelevant under Fed. R Evid. 401 since it describes Granger's performance on August20, 2012, eight months prior to the incident at issue in this suit. Rec. Doc. 35 at 2. The Court finds that the exhibit is relevant since defendants assert that Granger's injury was due, in part, to his work performance-in particular his failure to position hims elf correctly, pay attention to the seas, or exercise his stop work authority. Rec. Doc. 34 at 1-2. Thus, the objection is OVERRULED.

3. Exhibit 18-Dr. Morvant's records

Defendants object that the inclusion of Dr. Morvant's entire file is cumulative since plaintiff will be taking Dr. Morvant's deposition on March 12. Rec. Doc. 35 at 2. Plaintiff agrees that Dr. Morvant's deposition may supersede the records in his file. The Court therefore SUSTAINS the objection. Plaintiff may not introduce exhibits from Dr. Morvant's file that are duplicative of Dr. Morvant's deposition testimony.

4. Exhibit 20-Rehab in Motion Physical Therapy

Defendants object that this exhibit contains hearsay in the form of statements Granger made about the incident and alleged re-injury. They assert that the records should be limited to only those parts relevant to plaintiffs knee injury. Rec. Doc. 35 at 2. Plaintiff avers that these records are relevant only "to the extent they are for treatment relating to the knee injury, " and appears to suggest that they do not plan to use therecords for any other purpose beyond showing the extent of Granger's knee injury. Thus, this exhibit is admitted to the extent it is relevant for showing treatment for plaintiff s knee injury. Those portions which contain plaintiffs statements about how he injured and re-injured his knee are not admitted, since they do not fall under any of the hearsay exceptions.

5. Exhibit 21-Records of Thomas Hospital

Defendants contend that the records of plaintiff s visits to Thomas Hospital are irrelevant and unfairly prejudicial because plaintiff had not previously presented the charges for these visits to his employer, which he would have done had they been job-related, and had not previously complained of back pain. Rec. Doc. 35 at 2-3. However, plaintiffs complaint lists back injuries as one of the injuries caused by the incident at issue. Rec. Doc. 1 at 4. Accordingly, these records are relevant to plaintiff s alleged back injury. Fed. R Evid.401. In addition, the Court finds that the probative value of these records is not outweighed by the potential for prejudice Fed. R Evid. 403. Defendants have been on notice since at least December 29, 2014 that plaintiff intended to introduce records relating to Granger's back pain. Rec. Doc. 26. Finally, defendants argue that the records contain hearsay in the form of statements made by Granger. However, the Court finds that Granger's statements contained in pages 19 and 45 of these records are excepted from the rule against hearsay under Fed. R Evid. 803(4). The records show that Granger stated he had previously been diagnosed with sciatica, described the pain and symptoms he was experiencing at the time of the visit, and when those symptoms arose. These are "of the type reasonably pertinent to a physician in providing treatment." Rock v. HuffcoGas & Oil Co., Inc., 922 F.2d 272, 277 (5th Cir. ...


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