Dunn et al v. Thomas et al

Filing 1149

PHASE 2A HEARSAY OPINION AND ORDER: ORDERED as follows: defendants' hearsay objections to MHM Correctional Services, Inc.'s meeting minutes, employee emails, incident reports, and audit documents are overruled. To the extent that these docu ments contain hearsay within hearsay, the court finds that statements made by employees of MHM Correctional Services, Inc., Corizon, and the Alabama Department of Corrections are admissible under the business-records exception, because they were acti ng in the regular course of business when reporting to the recorders of that information. The court further finds statements made by prisoners reported in these documents are, based on the request of plaintiffs, admitted at this time for only the pur pose of establishing notice--that is, that the prisoners made these statements and that those who participated in the meetings, email communications, incident reports, and audit documents (and those privy to the resulting documents) were aware of them. Signed by Honorable Judge Myron H. Thompson on 1/31/2017. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2A HEARSAY OPINION AND ORDER
The

plaintiffs

in

this

class-action

lawsuit

are

state prisoners and the Alabama Disabilities Advocacy
Program (ADAP).
Alabama

The defendants are officials of the

Department

of

Corrections

(ADOC):

the

Commissioner and the Associate Commissioner of Health
Services.
only.

They are sued in their official capacities

The procedural history of the case is explained

in earlier opinions of the court, most recently in the
Phase

2A

summary-judgment

opinions

and

the

class-certification opinion. See Braggs v. Dunn, 317

F.R.D. 634 (M.D. Ala. 2016) (class certification); Dunn
v. Dunn, --- F.Supp.3d ----, 2016 WL 6949598 (M.D. Ala.
Nov. 25, 2016) (granting summary judgment in part and
denying in part); Dunn v. Dunn, --- F.Supp.3d ----,
2016 WL 6949585 (M.D. Ala. Nov. 25, 2016) (granting
summary

judgment

standing).

in

favor

of

ADAP’s

associational

The case is now in the midst of the Phase

2A trial, which encompasses the Eighth Amendment and
Fourteenth
care.

Amendment

claims

related

to

mental-health

The issue before the court is whether certain

documents produced by MHM Correctional Services, Inc.
(MHM),

the

contractor

ADOC

facilities,

for

mental=health

are

admissible

care

within

under

the

business-records exception of the rule against hearsay.
These

documents

Improvement
staff

(CQI)

meeting

include

MHM’s

meeting

minutes,

minutes,

emails

psychological-reconstruction
reports,

medication-error

Continuous

2

multidisciplinary

from

reports,

reports,

Quality

MHM

employees,

major-occurrence

reports

of

MHM’s

contract-compliance

reviews,

and

corrective-action

plans.
Based on the evidence presented thus far at trial,
the

court

finds

that

these

documents

are

admissible

under the business-records exception of Rule 803(6) of
the

Federal

Rules

of

Evidence,

subject

to

certain

restrictions explained below.
Under Rule 803(6), a document is admissible under
the

business-records

exception

if

the

proponent

establish that:
"(A) the record was made at or near the time
by--or from information transmitted by--someone
with knowledge;
"(B) the record was kept in the course of a
regularly conducted activity of a business,
organization, occupation, or calling, whether
or not for profit;
"(C) making the record was a regular practice
of that activity;
"(D) all these conditions are shown by the
testimony of the custodian or another qualified
witness, or by a certification that complies
with Rule 902(11) or (12) or with a statute
permitting certification; and
"(E) the opponent does not show that the source
of information or the method or circumstances
3

can

of
preparation
trustworthiness."

indicate

a

lack

of

Fed. R. Evid. 803(6).
As

the

Eleventh

Circuit

Court

of

Appeals

has

summarized, the business-records exception applies if
the

proponent

practice

of

can
the

show

that

recording

“it

was

entity

the

to

business

obtain

such

information from persons with personal knowledge and
...

to

maintain

entity.”

records

produced

by

the

recording

United States v. Bueno Sierra, 99 F.3d 375,

379 (11th Cir. 1996).
Based on the evidence presented, the court finds
that the four categories of documents that plaintiffs
have sought to introduce--emails from MHM employees,
MHM

meeting

minutes

multidisciplinary
(including

meetings),

reports

both

CQI

incident

psychological-reconstruction

critical-occurrence
reports),

(from

and

and

audit

reports,

and

documents

corrective-action

reports
reports,

medication-error

(contract-compliance

plans)--are

under the business-records exception.
4

and

admissible

These records

were

made

at

or

individuals

with

transmitted

by

routinely

near

time

knowledge,
those

share,

incident

the

reports

or

with

in

based

knowledge:

meetings

and

of

audit

and

the
on

events

information

MHM

employees

through

documents,

by

email,

information

regarding both routine issues and critical incidents
arising

in

mental-3health

the

course

care

to

of

prisoners

their
in

delivery
Alabama.

of
This

information is then recorded shortly after the issue
arises, based either on the personal knowledge of MHM
employees

or

on

information

conveyed

to

them

by

an

employee of MHM, ADOC, or Corizon (the contractor for
medical

care

within

ADOC

facilities)

who

had

such

knowledge.
For

example,

Dr.

Robert

Hunter,

the

chief

psychiatrist for MHM in Alabama, testified that he uses
email daily to communicate with MHM employees and ADOC
personnel in order to address issues arising from his
job responsibility of overseeing psychiatric treatment
within ADOC facilities.

Dr. Hunter also testified that
5

he presides over quarterly CQI meetings, where meeting
minutes are created, and that MHM employees rely on
these minutes to respond to mental-health care updates
and critical incidents.

Similarly, Sharon Trimble, a

mental-health professional employed by MHM, testified
that weekly multidisciplinary meetings are attended by
MHM

staff,

ADOC

staff,

and

Corizon

staff

at

each

facility in order to gather information pertinent to
mental-health care for particular inmates; that staff
rely

on

the

meeting

minutes

for

treatment

or

operational purposes; and that the meeting minutes are
created and maintained each week.

In addition, MHM’s

proposal submitted with its 2013 bid for the current
contract with ADOC states both that information sharing
is a vital component of MHM’s CQI process and that this
sharing

of

information

is

achieved

meetings and email communications.

through

staff

Pl. Ex. 644, MHM

Proposal for Mental Health Services, re: RFP No. 201302, Aug. 7, 2013.

6

Reports

of

individual

incidents,

including

psychological-reconstruction
critical-occurrence
reports,

also

reports,

reports,

serve

and

similar

medication-error

business

purposes

of

information sharing and quality improvement in MHM and
ADOC’s

regular

testified

that,

course

of

after

each

psychological-reconstruction
investigating

the

business.

inmate’s

Dr.

suicide,
reports

mental-health

he

Hunter
creates
after

history

and

personal history through medical records and interviews
with

staff,

in

order

to

understand

factors contributing to the suicide.

the

underlying

In turn, ADOC and

MHM staff are supposed to rely upon these reports for
quality improvement.

Dr. Hunter also established the

business record predicate for medication-error reports
and critical-occurrence reports created by other MHM
employees: he testified that they are created in the
regular course of mental-health care delivery and that
these reports serve the same function of recording the

7

nature of the incidents and communicating them to the
rest of the MHM staff or ADOC staff.
Lastly,

Associate

Commissioner

Ruth

Naglich

testified that, under ADOC’s contract with MHM, MHM is
required to provide a contract-compliance report every
year based on its annual audit, and that ADOC’s Office
of

Health

contract

Services

is

compliance

contract-compliance
corrective-action

responsible

partially
reports.

plans

as

for

based
MHM

a

monitoring
on

also

response

MHM’s
provides

to

their

corporate audit and ADOC’s request.
Defendants have not shown that the sources of the
information contained in these records or the method of
record-keeping lacks trustworthiness.
argue

that

the

meeting

minutes

While defendants

at

issue

are

not

reliable because they are summaries and not verbatim
transcripts,
these

MHM

minutes

process

and

Moreover,

staff

as

in

part

testified

that

of

quality-improvement

delivering

their
care

on

multidisciplinary-meeting
8

a

they

rely

daily
minutes

on

basis.
and

CQI-meeting

minutes

are

reviewed,

corrected

where

necessary, and approved by the meeting attendees at the
following meetings.

Taken together, MHM’s protocols

and

on

routine

they

are

reliance

sufficiently

these

reliable

business-records exception.1

minutes
to

indicate

qualify

that

under

the

See Bookworld Trade, Inc.

v. Daughters of St. Paul, Inc., 532 F. Supp. 2d 1350,
1354

(M.D.

Fla.

2007)

(Whittemore,

J.)

(“Meeting

minutes may fall under the hearsay exception in Rule
803(6) of the Federal Rules of Evidence for records of
regularly

conducted

authenticated
other

by

qualified

the

activities,
testimony

witness.”)

if
of

(citing

the
the

document

is

custodian

or

Lloyd

v.

Prof’l

Realty Servs., Inc., 734 F.2d 1428, 1433 (11th Cir.
1984)).

1. The
fact
that
any
particular
statement
contained in one may be untrue does not necessarily
make the entire document unreliable or inadmissible as
a business record. See United States v. Keplinger, 776
F.2d 678, 694-95 (7th Cir. 1985) (finding that various
inaccuracies in a document did not render the evidence
unreliable,
given
other
evidence
of
accurate
recordkeeping practices).
9

Defendants also argue that the fact that emails are
used for regularly conducted business activities does
not

render

all

emails

business-records exception.

admissible

under

the

United States v. Parnell,

2015 WL 3447250, at *9 (M.D. Ga. May 28, 2015) (Sands,
J.) (holding that emails may be treated as business
records but noting that, “Just like all other business
records,
created

the
for

mere
a

fact

business

that

a

entity

business
does

not

record

was

necessarily

satisfy the requirements of Rule 803(6)(B) that ‘the
record was kept in the course of a regularly conducted
activity of a business’ and Rule 803(6)(C) that ‘making
the record was a regular practice of that activity’”)
(citing United States v. Cone, 714 F.3d 197 (4th Cir.
2013)).

However, the emails that the plaintiffs have

sought to admit for the truth contain business records
such as audit results, instructions to subordinates,
incident

reports,

and

requests

for

assistance.

Multiple witnesses have testified that their emails are

10

often the only record of these business activities and
communications.
Having

established

that

MHM’s

meeting

minutes,

employee emails, incident reports, and audit documents
that

plaintiffs

have

sought

to

admit

are

admissible

business records, the court now turns to the scope of
the business-records exception.

Courts have found that

the business-records exception to the hearsay rule not
only

applies

statements
recorder

to

the

contained
of

the

record
in

the

statement

statement

were

acting

conducted

business

in

but

record,

if

and

the

activity.

itself,

the

course
See

also
both

source
of

a

United

of

to
the
the

regularly
States

v.

Turner, 189 F.3d 712, 719-20 (8th Cir. 1999) (holding
that time cards and payroll documents were admissible
business records, even though the entries in them came
from different sources, since both the source and the
recorder were engaging in a business activity).

In

other words, if the source of the information contained
in

the

business

record

was
11

“himself

acting

in

the

regular

course

excused.

of

business,”

any

double

hearsay

is

Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d

272, 279 (5th Cir. 1991) (citing Fla. Canal Indus.,
Inc. v. Rambo, 537 F.2d 200, 202 (5th Cir. 1976)).
The evidence presented shows that statements by MHM
employees memorialized in meeting minutes, emails, and
reports are made for the purposes of addressing issues
with

mental-health

quality-improvement
communication
activity.

is

care

and

exercises,
a

Therefore,

regularly

and

conducting
that

conducted

statements

by

MHM

this

business
employees

reported in MHM documents are admissible for the truth.2
Similarly, Corizon and ADOC employees communicating to
MHM

about

the

mental-health

needs

of

prisoners

are

2. In contrast, any emails from MHM employees that
discuss purely personal matters, rather than business
activities, do not fall under the business-records
exception and are therefore inadmissible.
The court
has not seen any such emails so far, nor did the
parties identify any such emails when the issue was
discussed during a telephone conference held on the
record on January 6, 2017.
That court stated during
the trial that, if any such personal emails are offered
in the future, the parties are to bring them to the
court’s attention.
12

acting in the regular course of their own business,
which requires constant collaboration with MHM, based
on

the

express

terms

of

their

contract,

and

their

communications are requested, received, and relied upon
by

MHM

in

the

regular

course

of

its

business.3

Additionally, statements by ADOC employees reported in
MHM documents are party admissions, and therefore fall
within an additional hearsay exception.

See Fed. R.

Evid. 801(d)(2)(D).

3. See Schmutz v. Bolles, 800 P.2d 1307, 1313-14
(Colo. 1990) (“When information is provided as part of
a
business
relationship
between
a
business
and
outsiders, however, records containing the information
have been considered admissible. See, e.g., Keplinger,
776 F.2d at 694; United States v. Flom, 558 F.2d 1179,
1182-83 (5th Cir. 1977).
...
One or more of the
following features are usually present in cases holding
such
records
admissible:
(1)
the
business
had
standardized forms to be filled out by outsiders; (2)
outsiders
provided
information
at
the
business’
request; or (3) the document was of a type regularly
relied upon by the business in making decisions.
See
United States v. Mendel, 746 F.2d 155, 166 (2d Cir.
1984). ... The business’ reliance on the information
in the records is a particularly important factor.”).
Here, information from Corizon and ADOC employees
reflected in MHM documents is both provided at MHM’s
request and relied upon by MHM in making decisions.
13

On

the

other

hand,

if

business

records

include

statements made by individuals who were not engaging in
a

regularly

statements

conducted

amount

to

business

hearsay

activity,

within

those

hearsay.

See,

e.g., United States v. Ismoila, 100 F. 3d 380, 392-93
(5th

Cir.

1996)

(explaining

that

credit

cardholders

reporting certain information to banks are not acting
in the regular course of business).
prisoners

contained

admissible
because

for

the

the

within
truth

prisoners

Statements made by

these
of

making

records

the
the

matter

are

not

asserted,

statements

are

not

acting in the regular course of business, unless they
fall within a separate hearsay exception.4

However,

plaintiffs have represented to the court that they are
not offering reported statements by prisoners for the
truth of the matter asserted.
therefore

being

admitted

for

These statements are
only

the

purpose

of

4. The court notes that many of these statements
made by prisoners are probably admissible for the truth
under
the
hearsay
exceptions
for
present
sense
impressions or for statements made for the purposes of
14

showing notice--that is, whether MHM or defendants were
on

notice

of

the

fact

that

a

prisoner

made

such

a

statement, not whether what the prisoner reported is
true.

***
For the above reasons, it is ORDERED as follows:
defendants’
Services,

hearsay
Inc.’s

objections

meeting

to

MHM

minutes,

Correctional

employee

emails,

incident reports, and audit documents are overruled.
To

the

extent

that

these

documents

contain

hearsay

within hearsay, the court finds that statements made by
employees of MHM Correctional Services, Inc., Corizon,
and

the

Alabama

admissible
because
business

under

they

were

when

information.

Department
the
acting

reporting

of

Corrections

business-records
in
to

the
the

are

exception,

regular

course

recorders

of

The court further finds statements

of

that
made

medical diagnosis. However, the court need not decide
this issue at this time.
15

by prisoners reported in these documents are, based on
the request of plaintiffs, admitted at this time for
only the purpose of establishing notice--that is, that
the prisoners made these statements and that those who
participated

in

the

meetings,

email

communications,

incident reports, and audit documents (and those privy
to the resulting documents) were aware of them.
DONE, this the 31st day of January, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE