United States District Court, E.D. Louisiana
ORDER AND REASONS
E. FALLON, UNITED STATES DISTRICT JUDGE.
the Court are two motions in limine. First,
Plaintiff seeks to exclude portions of the medical records
involving a second, separate automobile accident that
occurred after the instant accident in question but before
her cervical fusion surgery that allegedly resulted from her
first accident. See Doc. Rec. 32. Second, Defendants
seek to introduce a letter, addressed to Geico Insurance,
written by Plaintiffs counsel, regarding the second
automobile accident. See Doc. Rec. 21. The Court
held oral argument on these matters on August 23, 2017.
Having considered the parties' arguments, submissions,
and applicable law, the Court now issues this Order and
case arises out of an automobile accident. On September 9,
2015, Plaintiff Tonja Wright was operating her 2011 Ford
Escape in Tangipahoa Parish, Louisiana, when she was struck
by a 2015 Kenilworth trailer owned by Mabe Trucking Company
and operated by Terry Poole. Rec. Doc. 1-1 at 2. Wright also
brings this case on behalf of her minor son Noah Jackson, who
was travelling with her in the car at the time of the alleged
filed suit in state court on August 23, 2016, seeking damages
for past and future mental and physical pain and suffering,
property damage, loss of use of vehicle, depreciation, rental
expenses, medical expenses, loss of past earnings, loss of
future earning capacity, disability, scarring and
disfigurement, loss of consortium, and penalties and
attorneys' fees. Rec. Doc. 1-1 at 1, 4. In her pleading,
Plaintiff referred to her injuries as "severe and
disabling, " without elaborating on the nature of the
injuries. Id. at 3. On November 1, 2016, Defendants
received medical records in response to a subpoena that
indicated Plaintiff had undergone cervical fusion surgery.
Rec. Doc. 1 at 4.
to her surgery on August 2, 2016-allegedly resulting from the
car accident in question-Plaintiff was involved in another
motor vehicle accident and was seen in the emergency room of
Lallie Kemp Hospital on May 26, 2016. Plaintiff claims that
the 2015 accident, the instant dispute, caused her to need a
cervical fusion at the C4-C6 levels, which was performed on
August 2, 2016. Meanwhile, Defendants assert that Plaintiffs
alleged injuries and damages resulted from a separate,
intervening or superseding event-the later 2016 accident.
Thus, Defendants seek, and Plaintiff attempts to exclude,
evidence related to this later car accident.
Medical Records (Rec. Doc. 32)
seeks to preclude testimony from that hospital record
involving the 2016 accident, specifically portions where
Plaintiff allegedly stated: "I was supposed to have
surgery on my neck and chose not to." Rec. Doc. 32-2 at
2. Plaintiff denies that she told the hospital that she chose
not to have the surgery. Id.
proffers two reasons to exclude this portion of the medical
record: (1) it is hearsay, as well as hearsay within hearsay;
and (2) its prejudicial value outweighs benefits.
Id. at 2-3. Defendants oppose this motion, arguing
that the medical record-certified authentic here-are covered
by a hearsay exception under FRE 803(4) and 803(6). Rec. Doc.
37. Moreover, Defendants argue that the medical record is
relevant and not prejudicial because it "has a tendency
to disprove Plaintiffs allegations concerning causation and
does not cause the jury to make a decision on an improper
basis." Id. at 6.
records are covered by a specific hearsay exception under
Rule 803(4) of the Federal Rules of Evidence:
"statements made for purposes of medical diagnosis or
treatment[, ]" under the conditions listed in that rule,
are admissible even if the declarant is unavailable. The
Supreme Court considers this exception to be a "firmly
rooted" hearsay exception for purposes of the
Confrontation Clause; statements made for medical diagnosis
are considered particularly reliable. See White v.
Illinois, 502 U.S. 346, 356 n. 8 (1992). Moreover,
business records are covered by a hearsay exception under
Rule 803(6) of the Federal Rules of Evidence, for records of
regularly conducted activity. See United States v.
Ismoila, 100 F.3d 380, 392 (5th Cir. 1996) (holding that
the business records exception is a "firmly rooted"
hearsay exception). Rule 803(6) provides a hearsay exception
for records kept in the course of any regularly conducted
business activity, which includes hospitals. Wilson v.
Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991)
(citing Ricciardi v. Children's Hospital Medical
Center, 811 F.2d 18, 22 (1st Cir. 1987). The
admissibility of hospital records under this exception is
supported by the presumption of reliability that attaches to
statements relating to treatment and medical history in such
records. Ricciardi, 811 F.2d at 22. Nonetheless,
before admitting such statements, the Court needs to
determine whether the statements were reasonably considered
by the declarant as being pertinent to the diagnosis or
treatment sought. RockHuffco Gas & Oil Co.,
Inc., 922 F.2d 272, 278 (5th Cir. 1991).
the medical record, authenticated by the hospital, was
prepared in the regular course of business records of LSU
Lallie Kemp Regional Medical Center and relevant to
Plaintiffs medical diagnosis. See Doc. 47-2 at 1
("All entries were made by hospital personnel at the
time of services rendered and during the regular course of
hospital business."). At the hearing, nonetheless,
Plaintiff argued and emphasized that the second portion of
the statement ("I was supposed to have surgery . . .
and chose not to") is not relevant to medical
diagnosis and thus does not fall under the hearsay
exceptions. Not so. The medical record is relevant and
reliable because it relates to Plaintiffs symptoms, objective
data, and surrounding circumstances that a reasonable
physician would consider relevant in the treatment or
diagnosis of a medical condition. It contains information
regarding Plaintiffs pain, past symptoms from her neck
injuries, and its severity. Accordingly, the medical record
is admissible under FRE 803(6) and 803(4), and is not
prejudicial under FRE 403. Moreover, Defendant may also use
the statement under FRE 607 to impeach the witness's
credibility, as well as under FRE 613 as a prior statement.
Therefore, Plaintiffs motion to exclude the medical record
and its statement therein is DENIED.
Letter to Geico Indemnity ...