Turkowitz et al v. Town of Provincetown et al

Filing 149

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER(Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
BARRY SCOTT TURKOWITZ and
)
BRYAN RICHARDSON
)
Plaintiffs,
)
)
Civil No.
v.
)
10-10634-NMG
)
MICHAEL BARONE, ANTHONY BOVA,
)
THOMAS STEELE and MONICA HIMES, )
Defendants.
)
________________________________ )
MEMORANDUM AND ORDER
GORTON, J.
Defendants seek reconsideration by the Court of two of its
rulings on motions in limine which were made from the bench at
the pretrial conference.
First, defendants’ motion to preclude testimony concerning
events occuring at the police station (Docket No. 109) was
properly denied.

Testimony concerning Mr. Richardson’s back

ailment is relevant to establish damages resulting from the
alleged unlawful arrest and use of excessive force.

Testimony

concering Officer Steele’s purported refusal to assist Richardson
is relevant to the question of liability on his claim for
intentional infliction of emotional distress against Steele.
Second, plaintiffs’ motion to exclude three reports authored
by independent medical evaluators (Docket No. 114) was properly
denied without prejudice because Richardson’s statements

-1-

contained within the reports may be admissible as admissions by a
party opponent under Fed. R. Evid. 801(d)(2), if Richardson’s
statements contained in those documents are properly
authenticated or, on cross examination, as extrinsic evidence of
a prior inconsistent statement under Fed. R. Evid. 613(b).
The IME reports are not, however, admissible under Fed. R.
Evid. 803(4) because they emanate from appointments made for
evaluation only and not for care, treatment or consultation.
Plaintiff’s statements during those visits were not, therefore,
made for purposes of obtaining treatment of his condition and
lack the indicia of truthfulness justifying that particular
hearsay exception.
Nor are the reports admissible as business records under
Fed. R. Evid. 803(6).

The three cases defendants cite in support

of that proposition all consider medical records maintained by
the declarant’s treating physicians.

Where as here, the

evaluating doctor creates the report at the request of the
plaintiff’s employer rather than in the regular course of
treating the plaintiff’s medical condition, the reports lack the
indicia of truthfulness justifying that exception.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated November 1, 2012

-2-