Wright v. National Interstate Insurance Company et al
ORDER AND REASONS denying 32 Plaintiff's Motion in Limine; granting 21 Defendant's Motion in Limine, as set forth in document. Signed by Judge Eldon E. Fallon on 8/25/2017. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
INSURANCE CO., ET AL.
SECTION L (1)
ORDER AND REASONS
Before the Court are two motions in limine. First, Plaintiff seeks to exclude portions of the
medical records involving a second, separate automobile accident that occurred after the instant
accident in question but before her cervical fusion surgery that allegedly resulted from her first
accident. See Doc. Rec. 32. Second, Defendants seek to introduce a letter, addressed to Geico
Insurance, written by Plaintiff’s counsel, regarding the second automobile accident. See Doc. Rec.
21. The Court held oral argument on these matters on August 23, 2017. Having considered the
parties’ arguments, submissions, and applicable law, the Court now issues this Order and Reasons.
This case arises out of an automobile accident. On September 9, 2015, Plaintiff Tonja
Wright was operating her 2011 Ford Escape in Tangipahoa Parish, Louisiana, when she was struck
by a 2015 Kenilworth trailer owned by Mabe Trucking Company and operated by Terry Poole.
Rec. Doc. 1-1 at 2. Wright also brings this case on behalf of her minor son Noah Jackson, who
was travelling with her in the car at the time of the alleged accident.
Plaintiff filed suit in state court on August 23, 2016, seeking damages for past and future
mental and physical pain and suffering, property damage, loss of use of vehicle, depreciation,
rental expenses, medical expenses, loss of past earnings, loss of future earning capacity, disability,
scarring and disfigurement, loss of consortium, and penalties and attorneys’ fees. Rec. Doc. 1-1
at 1, 4. In her pleading, Plaintiff referred to her injuries as “severe and disabling,” without
elaborating on the nature of the injuries. Id. at 3. On November 1, 2016, Defendants received
medical records in response to a subpoena that indicated Plaintiff had undergone cervical fusion
surgery. Rec. Doc. 1 at 4.
Prior to her surgery on August 2, 2016—allegedly resulting from the car accident in
question—Plaintiff was involved in another motor vehicle accident and was seen in the emergency
room of Lallie Kemp Hospital on May 26, 2016. Plaintiff claims that the 2015 accident, the instant
dispute, caused her to need a cervical fusion at the C4-C6 levels, which was performed on August
2, 2016. Meanwhile, Defendants assert that Plaintiff’s alleged injuries and damages resulted from
a separate, intervening or superseding event—the later 2016 accident. Thus, Defendants seek, and
Plaintiff attempts to exclude, evidence related to this later car accident.
Medical Records (Rec. Doc. 32)
Plaintiff seeks to preclude testimony from that hospital record involving the 2016 accident,
specifically portions where Plaintiff allegedly stated: “I was supposed to have surgery on my neck
and chose not to.” Rec. Doc. 32-2 at 2. Plaintiff denies that she told the hospital that she chose
not to have the surgery. Id.
Plaintiff proffers two reasons to exclude this portion of the medical record: (1) it is hearsay,
as well as hearsay within hearsay; and (2) its prejudicial value outweighs benefits. Id. at 2-3.
Defendants oppose this motion, arguing that the medical record—certified authentic here—are
covered by a hearsay exception under FRE 803(4) and 803(6). Rec. Doc. 37. Moreover,
Defendants argue that the medical record is relevant and not prejudicial because it “has a tendency
to disprove Plaintiff’s allegations concerning causation and does not cause the jury to make a
decision on an improper basis.” Id. at 6.
Medical records are covered by a specific hearsay exception under Rule 803(4) of the
Federal Rules of Evidence: “statements made for purposes of medical diagnosis or treatment[,]”
under the conditions listed in that rule, are admissible even if the declarant is unavailable. The
Supreme Court considers this exception to be a “firmly rooted” hearsay exception for purposes of
the Confrontation Clause; statements made for medical diagnosis are considered particularly
reliable. See White v. Illinois, 502 U.S. 346, 356 n. 8 (1992). Moreover, business records are
covered by a hearsay exception under Rule 803(6) of the Federal Rules of Evidence, for records
of regularly conducted activity. See United States v. Ismoila, 100 F.3d 380, 392 (5th Cir. 1996)
(holding that the business records exception is a “firmly rooted” hearsay exception). Rule 803(6)
provides a hearsay exception for records kept in the course of any regularly conducted business
activity, which includes hospitals. Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir.
1991) (citing Ricciardi v. Children’s Hospital Medical Center, 811 F.2d 18, 22 (1st Cir. 1987).
The admissibility of hospital records under this exception is supported by the presumption of
reliability that attaches to statements relating to treatment and medical history in such records.
Ricciardi, 811 F.2d at 22. Nonetheless, before admitting such statements, the Court needs to
determine whether the statements were reasonably considered by the declarant as being pertinent
to the diagnosis or treatment sought. Rock Huffco Gas & Oil Co., Inc., 922 F.2d 272, 278 (5th Cir.
Here, the medical record, authenticated by the hospital, was prepared in the regular course
of business records of LSU Lallie Kemp Regional Medical Center and relevant to Plaintiff’s
medical diagnosis. See Doc. 47-2 at 1 (“All entries were made by hospital personnel at the time
of services rendered and during the regular course of hospital business.”). At the hearing,
nonetheless, Plaintiff argued and emphasized that the second portion of the statement (“I was
supposed to have surgery . . . and chose not to.”) is not relevant to medical diagnosis and thus does
not fall under the hearsay exceptions. Not so. The medical record is relevant and reliable because
it relates to Plaintiff’s symptoms, objective data, and surrounding circumstances that a reasonable
physician would consider relevant in the treatment or diagnosis of a medical condition. It contains
information regarding Plaintiff’s pain, past symptoms from her neck injuries, and its severity.
Accordingly, the medical record is admissible under FRE 803(6) and 803(4), and is not prejudicial
under FRE 403. Moreover, Defendant may also use the statement under FRE 607 to impeach the
witness’s credibility, as well as under FRE 613 as a prior statement. Therefore, Plaintiff’s motion
to exclude the medical record and its statement therein is DENIED.
Letter to Geico Indemnity Company (Rec. Doc. 21)
Defendants further seek to introduce a January 23, 2017 letter written by Plaintiff’s counsel
to Geico Indemnity Company concerning the subsequent May 26, 2016 accident involving
In response to the Notice of Records Deposition, Geico produced a letter of
representation in which Plaintiff’s counsel advises Geico he was retained by Plaintiff to “represent
her interest” concerning an accident on May 26, 2016. Also, the Geico production contains the
instant January 23, 2017 letter from Plaintiff’s counsel to Krupen Amin, a claims adjuster for Geico
and who will be called as a witness for Defendants. See Rec. Doc. 47-1 at 1. The letter references
the nature of Plaintiff’s claimed injuries in the subsequent May 26, 2016 accident, and attaches a
surgical report and bill from August 2, 2016. See id. Attached to the letter is “the surgical report
and bill” and states Geico’s “policy limits are clearly exhausted.” Id. The letter then asks Geico
to pay its policy limits. Id. The surgical report and bill are for Plaintiff’s August 2, 2016 cervical
fusion. See id. at 2-9. Plaintiff opposes the motion under FRE 408 (as evidence regarding
settlement or compromise), FRE 801(c)(3) (hearsay), and FRE 403 (prejudicial).
Generally, FRE 408 prevents the admission of information shared during settlement
negotiations “to prove or disprove the validity or amount of a disputed claim or to impeach by a
prior inconsistent statement.” Fed. R. Evid. 408(a). In the instant case, however, the settlement
correspondence, the letter, relates to a separate party, arising from a separate incident.
Rico v. American Family Insurance Group is instructive concerning Plaintiff’s argument.
See 267 F.Supp. 2d 554, 557-58 (E.D. La. 2002), aff’d sub nom, Rico v. Am. Family Mut. Ins. Co.,
76 Fed. Appx. 527 (5th Cir. 2003). In Rico, the Court allowed the testimony of a defense attorney
who had defended a previous personal injury lawsuit brought by the plaintiff. Id. The attorney
testified about “the general nature of the injuries which [the plaintiff] alleges he sustained in the
prior lawsuit.” Id. at 558. The Court noted the “main defense” of the defendants was the plaintiff
suffered the same injuries, in the accident before the Rico court, for which he previously sought
compensation. Id. Thus, the Court found the defense attorney’s testimony was relevant to the
defendant’s defense. In Rico, the defendant was allowed to enter testimony of a defense attorney
in a previous personal injury suit to testify about “the general nature of the injuries which [the
plaintiff] alleges he sustained in the prior lawsuit and the fact the prior lawsuit was settled.” Id. at
558. Nonetheless, the Rico Court noted the amount of the settlement was not disclosed, but the
witness “merely testified about the injuries which [the plaintiff] claimed he sustained in the prior
lawsuit.” Id. That testimony, the Court noted, was factual and thus allowed. Id.
Here, the letter addressed to and testimony by Geico representative Krupen Amin are
relevant to Defendants’ defense that Plaintiff’s alleged injuries and damages were caused by “a
separate, intervening, and/or superseding event.” Rec. Doc. 21-2 at 4. Moreover, FRE 408 is not
applicable here because the settlement discussed therein is not between Plaintiff and Defendants,
but rather a different party. The Fifth Circuit has developed a “loose ‘transactional’ test” to define
“the claim” in Rule 408 and requires a dispute at least “arise out of the ‘same transaction’” in order
to trigger Rule 408. Buckhanan v. Shinseki, 665 Fed. Appx. 343, 351 (5th Cir. 2016) (quoting
Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 297 (5th Cir. 2010)). Contrary to
Plaintiff’s assertion, there is no shared factual nexus. The 2016 accident is an entirely separate
claim from the instant 2015 matter—involving a different defendant, location, and time.
Accordingly, FRE 408 does not apply to preclude evidence arising from settlement discussions
involving the latter 2016 accident.
Plaintiff further argues that the letter is hearsay evidence. Rec. Doc. 40 at 8. Indeed, while
the letter is an out of court statement, the letter is specifically not hearsay pursuant to Federal Rule
of Evidence 801(d) because this statement qualifies as an opposing party’s statement. Based on
the letter of representation from Plaintiff’s counsel, Plaintiff’s counsel was acting in his
representative capacity of Plaintiff concerning the 2016 accident when he advised Geico the
August 2, 2016 surgery was caused by the 2016 accident. Generally, statements made by an
attorney concerning a matter within his employment may be admissible against the party retaining
the attorney. See Mercato Elisio, LLC v. Deveney, CV 15-563, 2016 WL 4181021, at *4 (E.D. La.
Aug. 8, 2016) (“Because the letter is offered against [plaintiff], and was made by a party authorized
by [plaintiff] to speak on the subject, it is not hearsay.”); see also Hanson v. Waller, 888 F.2d 806,
814 (11th Cir. 1989) (noting that Rule 801(d)(2)(C) “has been applied to allow in evidence
statements made by attorneys in a representational capacity.”); Williams v. Union Carbide Corp.,
790 F.2d 552, 555 (6th Cir. 1986) (“It is the general rule that ‘statements made by an attorney
concerning a matter within his employment may be admissible against the party retaining the
attorney.’” (quoting United States v. Margiotta, 662 F.2d 131, 142 (2d Cir. 1981), cert. denied,
461 U.S. 913 (1983)). Accordingly, the instant letter to Geico, drafted by Plaintiff’s counsel, is
not precluded under the hearsay rule. Moreover, Defendants may use this letter under FRE 607 to
impeach a witness at trial.
Finally, Plaintiff contends that the prejudicial nature of the letter outweighs its probative
nature. Defendants, nonetheless, argue that Plaintiff’s injuries and damages arise, in part, from a
separate, intervening incident. The instant letter is in regards to issues surrounding the 2016
subsequent accident. That information is central to Defendants’ case in chief and therefore
relevant. Based on these reasons, Defendants’ motion is GRANTED.
Based on the aforementioned, accordingly,
IT IS ORDERED that Plaintiff’s motion in limine (Rec. Doc. 32) is hereby DENIED.
IT IS FURTHER ORDERED that Defendant’s motion in limine (Rec. Doc. 21) is hereby
New Orleans, Louisiana, this 25th day of August, 2017.
ELDON E. FALLON
United States District Judge
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