Sims v. Bayer Corporation et al

Filing 273

ORDER Regarding Authentication of certain medical records. Signed by Chief Judge David R. Herndon on 12/29/2011. (dsw, this issue was raised with the Court via electronic mail and fully briefed by the parties)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS

IN RE: YASMIN AND YAZ
(DROSPIRENONE) MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY
LITIGATION

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3:09-md-02100-DRH-PMF
MDL No. 2100

This Document Relates to: Kerry Sims v. Bayer Corp., et al., No. 3:09-cv10012-DRH-PMF

ORDER
Regarding Authentication Objections
This matter is before the Court for case management.

Plaintiff asserts

objections to defendant’s proposed exhibits from the office records of Dr. Blinder
and DX2025 records of plaintiff. The nature of the objections is that the records
lack authenticity because they are not complete.

Plaintiff knows they are not

complete because she is in possession of the same records and can take notice
that defendant’s proposed exhibits are missing material included in the records
she possesses.

The defendants have in their possession, as well however,

certification forms which verify the records as authentic.
Authentication is covered by FEDERAL RULE
paragraph (a) provides that:

OF

EVIDENCE 901.

Therein,

To satisfy the requirement of authenticity or identifying an item of
evidence, the proponent must produce evidence sufficient to support
a finding that the item is what the proponent claims it is.

Authenticity is a question of fact for the jury. Rule 901 requires a prima
facie showing that the matter in question is what its proponent claims it to be.
Whether it is authentic is then a question of fact for the jury.
Dombrowski, 877 F.2d 520 (7th Cir. 1989).

See, US v.

The plaintiff is free to present

evidence in rebuttal which challenges the authenticity of the records or to
supplement the record if she feels the record is incomplete.

She can call the

person who attested to its completeness and challenge the attestation, or call
another person who has knowledge of the matter at hand for that purpose.
Plaintiff further argues that the circumstances surrounding the Blinder
records constitute a Petrillo violation under Illinois law and that this violation
justifies withholding the records. The plaintiff does not supply authority for such
a sanction under Petrillo or under Rule 901 and the Court is unable to find any.
Whether the Court agrees that a Petrillo violation has occurred, it is not an issue
of authentication.

The Court finds that the defendant has presented a prima facie showing of
authentication with respect to the specific Blinder and DX2025 records. This is
not a ruling on admissibility generally, but simply responds to the parties request
for a ruling on the dispute concerning authentication.
SO ORDERED

David R. Herndon
2011.12.29
16:40:57 -06'00'
Chief Judge
United States District Court

Date: December 29, 2011