Alston v. Infirmary Health Hospitals, Inc.

Filing 48

ORDER DENYING Plf's 42 Motion to Strike & GRANTING Dft's 45 Motion to Strike as set out. Signed by Judge Callie V. S. Granade on 10/18/2012. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHERYL M. ALSTON,
Plaintiff,
v.
INFIRMARY HEALTH
HOSPITALS, INC.,
Defendant.

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) CASE NO. 1:11-cv-550-CG-M
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ORDER ON THE PARTIES’ RESPECTIVE MOTIONS TO STRIKE
This matter is before the court on the motion to strike filed by the
plaintiff, Cheryl M. Alston (“Alston”) (Doc. 42), as well as the motion to strike
filed by the defendant, Infirmary Health Hospitals, Inc. (“IHH”) (Doc. 45).
For the reasons enumerated below, Alston’s motion to strike is DENIED and
IHH’s motion to strike is GRANTED.
I.

ALSTON’S MOTION TO STRIKE

Alston asserts that Appendix A to the defendant’s summary judgment
reply brief (Doc. 39 at 16) is inadmissible hearsay because the document
lacks a foundation that it is a business record. Alston also claims that the
document appears to be created by defense counsel during the course of this
litigation, and therefore is not admissible as a business record or for any
other reason. (Doc. 42 at 1-2).
IHH counters that the appendix is merely a chart which summarizes
evidence that was submitted contemporaneously with IHH’s motion for

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summary judgment (Doc. 24) as an attachment to the affidavit of Melissa
Boesen, IHH’s Human Resource Manager (Doc. 25). IHH asserts that this
attachment (Doc. 25-1), which consisted of 588 pages of Daily Time and
Attendance Schedule Reports reflecting time keeping and work hour
information for employees in Alston’s department, was offered as business
record evidence. (Doc. 44 at 1); see also Doc. 25-1.
The court notes that Boesen’s affidavit and the accompanying 588-page
attachment were cited in IHH’s memorandum in support of summary
judgment. See Doc. 26 at 5. Alston also cited these two documents in her
opposition brief without objecting to the admissibility of the data in the
attachment. Doc. 35 at 4, n.3.
Rule 1006 of the Federal Rules of Evidence provides that “the contents
of voluminous writings, records, or photographs which cannot conveniently be
examined in court may be presented in the form of a chart, summary, or
calculation.” The materials or documents upon which a Rule 1006 exhibit is
based must be admissible under the Federal Rules of Evidence. Peat, Inc. v.
Vanguard Research, Inc., 378 F.3d 1154, 1160 (11th Cir. 2004). Here, the
underlying information contained in the attachment to the Boesen affidavit
(Doc. 25-1) is clearly admissible as a business record, a fact not contested by
Alston.
Alston’s argument that “this document is clearly inadmissible hearsay”
because “it appears to be a document created by IHH’s attorneys during the

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course of litigation,” is misplaced. What is inadmissible are “summaries of
records prepared for litigation.” Peat, Inc., 378 F.3d at 1161. In other words,
where the underlying information itself was prepared in anticipation of
litigation, then the summary is inadmissible. Here, the underlying
information on which the contested chart is based is clearly admissible under
Federal Rule of Evidence 803(6)(B). Therefore, the chart itself is admissible
pursuant to FRE 1006 and Alston’s motion to strike is DENIED.
II. IHH’s MOTION TO STRIKE
In her motion to strike (Doc. 42), Alston claimed that she “has not had
the opportunity to respond to [the chart at Doc. 39 at 16],” and attached the
affidavit of Yvette English (Doc. 42-1). Alston did not explain why the
English affidavit was necessary to respond to the disputed chart, nor did she
attempt to relate the two documents. (Doc. 42 at 2-3). Thus, as far as the
court is concerned, the English affidavit is somewhat of a non sequitur in
relation to the disputed chart discussed above. IHH subsequently filed a
motion to strike the English affidavit (Doc. 45), arguing that “it is nothing
more than a backdoor attempt to submit additional evidence and argument
relevant to the substantive summary judgment issues after the deadline for
doing so.” (Doc. 45 at 1). The court agrees.
Alston’s argument that she had no opportunity to respond to the
information contained in the chart at Appendix A of Doc. 39 is belied by her
own opposition brief. See Doc. 35 at 4. There, Alston cited the very same

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information that was summarized in the chart. Furthermore, the court’s
August 7, 2012 order (Doc. 31) specifically prohibited further submissions
“without the leave of the court for good cause shown,” which prohibition
plaintiff’s counsel apparently ignored.
Accordingly, IHH’s motion to strike the affidavit of Yvette English is
hereby GRANTED.
DONE and ORDERED this 18th day of October 2012.

/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

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