Webb v. USA

Filing 37

ORDER denying Defendant's 31 Motion in Limine. Signed by Magistrate Judge J. Thomas Ray on 1/14/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
GERALD WEBB
V.

PLAINTIFF
NO. 1:12CV00069-JTR

UNITED STATES OF AMERICA

DEFENDANT

ORDER
Defendant has filed a Motion in Limine seeking to exclude anticipated
testimony from Plaintiff and his daughter-in-law (Patricia Webb), regarding
statements made by Dr. Jody Bradshaw prior to Plaintiff’s hand surgery on March 10,
2009. Docs. #31 & #32. Plaintiff has responded. Doc. #35.
Defendant anticipates that Plaintiff and Ms. Webb will testify that Dr.
Bradshaw said he was going to open up Plaintiff’s wound and connect the “ligament”
in his thumb back together and that, if Dr. Bradshaw was unable to connect it, he
would sew Plaintiff back up and tell him his options. Defendant argues that the
statements allegedly made by Dr. Bradshaw are inadmissible hearsay because they are
out-of-court statements that would be offered by Plaintiff for the truth of the matter
asserted, that is, to support his claim that he gave a “limited” consent to surgery. See
Fed. R. Evid. 801, 802.

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Dr. Bradshaw’s alleged statements to Plaintiff and Ms. Webb are not
inadmissible hearsay. Under Rule 801(d)(2)(D), a statement offered against an
opposing party is not hearsay when it was “made by the party’s agent or employee on
a matter within the scope of that relationship and while it existed.” See Orenstein v.
United States, No. 2:10cv348, 2013 WL 595766, *1 (D. Utah Feb. 15, 2013)
(plaintiff’s testimony regarding physician’s post-surgery statements was admissible
against the government in FTCA case under Rule 801(d)(2)(D)); In re Jacoby
Airplane Crash Litigation, No. 99-6073, 2007 WL 2746833, *4-5 (D.N.J. Sept. 19,
2007) (collecting cases where out-of-court statements by government employees were
admissible against the government under Rule 801(d)(2) as admissions by a party
opponent).1
Defendant’s Motion in Limine, Doc. #31, is DENIED.

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Plaintiff argues that the statements are admissible under Rule 803(4) as a
“statement made for medical diagnosis or treatment.” Rule 803(4) does not provide a
basis for admissibility because, to fall within this exception to the hearsay rule, the
statement must be obtained from the person seeking the medical treatment. Stull v. Fuqua
Industries, Inc., 906 F.2d 1271, 1273-74 (8th Cir. 1990) (the “medical records exception”
is based on the assumption that a person making a statement for the purpose of obtaining
medical treatment will “likely tell the truth to a medical person and that the statement is
therefore inherently reliable”); Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir.
1985) (“Rule 803(4) applies only to statements made by the patient to the doctor, not the
reverse.”).

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DATED THIS _14th__ DAY OF January, 2014.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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