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Wright v. National Interstate Insurance Co.

United States District Court, E.D. Louisiana

August 25, 2017


         SECTION L (1)



         Before 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 Reasons.

         I. BACKGROUND

         This 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 accident.

         Plaintiff 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.


         Prior 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.

         A. Medical Records (Rec. Doc. 32)

         Plaintiff 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.

         Plaintiff 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.

         Medical 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).

         Here, 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.

         B. Letter to Geico Indemnity ...

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