United States District Court, W.D. Louisiana, Monroe Division
KELVIN WILSON, ET AL.
MOUNTAIN LAKE RISK RETENTION GROUP, ET AL.
L. HAYES MAG. JUDGE
A. DOUGHTY UNITED STATES DISTRICT JUDGE.
here is Defendants Mountain Lake Risk Retention Group; Sonya
Regina Lott; and Total Transportation of Mississippi,
LLC's (“Defendants”) Motion in Limine to
Exclude DTI/Volumetric Evidence and Witnesses [Doc. No. 97].
Plaintiffs Kelvin Wilson and Shantel Wilson
(“Plaintiffs”) have filed an opposition [Doc. No.
104]. Defendants have filed a reply to the opposition [Doc.
No. 107]. For the following reasons, the Defendants'
Motion in Limine is GRANTED IN PART and DENIED IN PART.
case arises from a vehicular accident on November 19, 2015,
in Madison Parish, Louisiana. Plaintiff Kelvin Wilson
suffered injuries when the vehicle he was operating was
struck in the rear by an 18-wheeler operated by Defendant
Sonya Regina Lott. Plaintiffs have listed, as an exhibit to
be offered at trial, an eleven (11) page report, with
addendums, on “MINDSET/Doctors Imaging”
letterhead, which discusses a “diffuse tensor
imaging” (“DTI”) and
“volumetric” analysis performed on Plaintiff
Kelvin Wilson to support his claim for an alleged traumatic
pending Motion in Limine, Defendants seek to exclude the
following evidence and witnesses from evidence at the trial
of this case:
1) The MINDSET report and appendix;
2) Any reference to the MINDSET report, its substance and any
“DTI/volumetric evidence” from the testimony of
any physician, expert or other witnesses(es);
3) Any reference to the MINDSET report, its substance and any
“DTI/ volumetric evidence” from any documents,
records or exhibits, including but not limited to the records
of Dr. Weir;
4) The testimony of Dr. Edward Soll and any other
witnesses(es) associated with Doctors Imaging/MINDSET and/or
other witness about DTI/ volumetric analysis; and
5) The testimony of Dr. Edward Soll for any purpose at trial.
contend (1) that the MINDSET report is inadmissible hearsay
and is inadmissible due to lack of adequate foundation; (2)
that the DTI evidence fails Daubert standards if
offered, as here, to support an individual patient's
traumatic brain injury (“TBI”) claim; and (3)
that the particular DTI/volumetric evidence in this case is
regard to the first contention, Defendants contend that the
MINDSET report is hearsay under Federal Rules of Evidence 801
and 802 and that the report does not fall within any
exception for admissibility under Federal Rules of Evidence
803, 804, or 807. Defendants further contend that Plaintiffs
cannot produce a witness who can provide an adequate
foundation for the report.
respond that the MINDSET report, even if hearsay, is
admissible because it is a record of a regularly conducted
activity, pursuant to Federal Rule of Evidence 803(6), which
provides that a report made at or near the time by a person
with knowledge, in the course of a regularly conducted
business activity making such reports, is a valid exception
to the hearsay rule, so long as a qualified witness or
certification is provided and the source, method or
circumstances of preparation do not indicate a lack of
trustworthiness. Plaintiffs argue that the MINDSET report is
a regularly prepared report, made near the time of analysis
and kept in the regular course of MINDSET's business and
that Dr. Jeffery Lewine (“Dr. Lewine”), a
newly-identified expert witness, can establish its
additionally respond that the MINDSET report is admissible as
a statement made for medical diagnosis or treatment, ...