ORBER et al v. JAIN et al

Filing 55

OPINION & ORDER: This Court exercises its discretion to exclude the report under Federal Rule of Evidence 403. Signed by Judge Renee Marie Bumb on 5/2/2012. (drw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JAYNE ORBER and MARC ORBER,
husband and wife, individually,
Plaintiffs,
Civil No. 10-1674 (RMB/JS)
v.
OPINION AND ORDER

RAJESH K. JAIN, M.D.,
RECONSTRUCTIVE ORTHOPEDICS,
P.A.,
Defendants.

Plaintiffs Jayne and Marc Orber (“Plaintiffs”) seek to
introduce into evidence Plaintiffs’ Exhibit 18.

Defendants

Rajesh K. Jain, M.D. (“Jain”) and Reconstructive Orthopedics,
P.A. (“Defendants”) oppose the admission of this exhibit.

For

the reasons that follow, the Court denies the admission of the
exhibit.
I.

Background
Plaintiffs allege that Defendant Jain was negligent in

performing Plaintiff Jayne Orber's June 2, 2009 knee replacement
surgery.

Plaintiffs claim that, as a result of Defendant Jain’s

negligence, Plaintiff Jayne Orber (“Mrs. Orber”) suffered
disabling injuries.

In general, Plaintiff alleges she has

trouble walking and sitting for long periods of time.
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She

claims she has numbness in her lower left leg, and she has
trouble keeping her balance.

As a result, Plaintiff alleges

that she is unable to work.
In her case in chief, Mrs. Orber testified that she applied
for, and was awarded, disability benefits as of the date of the
surgery June 2, 2009 – a fact that Defendants do not dispute.
Plaintiffs’ damages expert, Andrew Verzilli, also testified that
the SSA found Mrs. Orber to be disabled as of June 2, 2009, and
awarded her disability benefits from this date.1
In addition to this testimony, Plaintiffs sought to
introduce into evidence the SSA's disability determination (the
“Disability Determination”) – Exhibit 18.

In the Disability

Determination, the SSA found that: (1) Mrs. Orber was disabled;
(2) she had been disabled since June 2, 2009 – the date of her
surgery; and (3) that disability is the result of arthritis in
both knees, as well as “residual effects of failed total left

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The Court issued a limiting instruction with respect to this evidence.
The Court charged the jury it could consider, but was not bound by, the SSA's
Disability Determination that Mrs. Orber was disabled and could also consider
that evidence in determining the extent that disability benefits would offset
any lost wages by Mrs. Orber. The Court further instructed the jury that it
could not consider any conclusions drawn by the SSA as to the cause of Mrs.
Orber's disability. In issuing these instructions, the Court distinguished
between the jury's ability to consider the SSA's disability determination and
its findings with respect to causation. The Court reasoned that, consistent
with precedent cited by Plaintiffs, the former would be relevant and
relatively reliable evidence permissible for the jury to consider given that:
(1) the central purpose of the Disability Determination is to determine
disability; and (2) the SSA has expertise, as experienced evaluators of
disability, in determining disability. In contrast, as discussed in more
detail below, allowing the jury to consider the latter findings could
improperly cause the jury to relinquish its obligation to make an independent
determination as to causation and instead rely on unreliable evidence.

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knee replacement.”

The Disability Determination also contains

a detailed recounting of Mrs. Orber's subjective complaints and
medical history from her medical records and testimony.
Defendants objected to the admission of the Disability
Determination.
II.

The Court reserved its decision.

Analysis
Plaintiffs assert that the Disability Determination is

admissible under Federal Rule of Evidence 803(8), which allows
for the admission of public records.

Plaintiffs cite to several

cases in support of the admissibility of the Disability
Determination. See Riedl v. General American Life Insurance Co.,
248 F.3d 753, 759 (8th Cir. 2001)(although SSA Report not
binding, it is admissible to support an ERISA claim for
disability benefits); Goodreau v. Hartford Life & Accident
Insurance Co., 500 F.Supp.2d 1169, 1173 (W.D.Ark. 2007)(same);
Traversa v. Educational Credit Management Corp., No. 06-3109,
2008 WL 4681844, at *4 (Bankr.D.Conn. Sep. 24, 2008)(finding
that disability determination from was admissible evidence of
plaintiff's disability in bankruptcy proceeding for debtor
seeking discharge from debt); Webster v. Oglebay Norton Co., No.
65502, 1995 WL 32628, *5 (Ct.App.Oh. Jan. 26, 1995)(SSA report
sought to be introduced by defendant was relevant to show
contradictory statements regarding cause of disability);
Gilchrist v. Ozone Spring Water Co., 639 So.2d 489, 494-97
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(La.Ct.App. 1994)(allowing disability determination from prior
to the incident at issue as evidence of the plaintiff's preincident disability in non-jury case).
At this juncture, however, this Court need not decide
whether the Disability Determination falls within Federal Rule
Evidence 803(8) because even if it qualifies as a public record
under the Rule, the Court finds it should be excluded under
Federal Rule of Evidence 403.

The cases cited by Plaintiffs

are distinguishable and do not address this issue in this
context.

The Disability Determination is cumulative and the

probative value, if any, is substantially outweighed by the
danger of unfair prejudice to the Defendants.

Federal Rule of

Evidence 403.
The Court first assesses the probative value of the
Disability Determination.

It is minimal.

Plaintiffs have

already introduced evidence that Mrs. Orber was found to be
disabled as of June 2, 2009 by the SSA.

Plaintiffs have also

already had the opportunity for Mrs. Orber to testify, introduce
her medical records, and offer testimony from expert physicians,
as well as Mrs. Orber's treating physician.

To the extent the

Disability Determination recounts Mrs. Orber's history and
subjective complaints and comes to the conclusion that Mrs.
Orber is disabled, it is cumulative of the evidence already
presented and such evidence is excludable on that basis.
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Weathersby v. One Source Mfg. Tech., L.L.C., 378 F. App'x 463,
465-66 (5th Cir. 2010)(affirming the exclusion of EEOC letter
recounting allegations because, in addition to being highly
prejudicial, it would be cumulative of the live testimony);
Ballen v. Martin Chevrolet-Buick of Del., No. 94-484, 1997 WL
1045735, at *4 (D.Del. Aug. 7, 1997)(recognizing that evidence
is cumulative and need not be admitted where it will be
presented through live testimony).
To the extent that the Disability Determination makes
findings or suggests, based on the onset date or otherwise, that
Mrs. Orber's disability is linked to the knee replacement
surgery, that evidence is, in addition to being cumulative of
Plaintiffs' expert orthopedic surgeon's testimony, of dubious
probative value for two reasons.
First, the lack of a meaningful adversarial process with
respect to the cause of Mrs. Orber's alleged disability renders
the SSA's conclusions on that issue unreliable. See Ianscoli v.
Astrue, No. 10-12000, 2011 WL 4359978, at *2 (E.D.Pa. Aug. 25,
2011)(“A hearing on an application for benefits is not
adversarial in nature; rather the Social Security Administration
assists an applicant in proving his claim.”).

The SSA does not

have an institutional interest in determining the cause of Mrs.
Orber's disability.

Rather, the SSA's central inquiry is into

whether the applicant is disabled as of the alleged onset date.
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Id. (noting that it is the SSA's duty to investigate whether the
claimant is entitled to disability).

And there is no party

before the SSA who, like the Defendants, has an interest in that
issue.

On the other hand, Plaintiffs had a strong interest,

having commenced their civil case on April 1, 2010, and having
requested a disability benefits hearing on May 13, 2010, to make
a strong case as to causation before the SSA and build a
foundation for this proceeding.

Escrow Disbursement Ins.

Agency, Inc. v. Am. Title and Ins. Co., Inc., 551 F. Supp. 302,
305 (S.D.Fla. 1982)(excluding report that was the product of a
non-adversarial hearing where there was

a “strong implication

that it was prepared with the pending litigation in mind.”).
Second, there is no basis to assess the qualifications of the
Administrative Law Judge to render an opinion as to causation
and thereby assess the opinion's worth.

The Federal Rules of

Evidence recognize the questionable value and danger of opinion
testimony on scientific subjects, like medical causation, by
non-experts by prohibiting the introduction of such testimony.
See Federal Rule of Evidence 701(c)(barring lay witnesses from
opinion testimony that is “based on scientific, technical, or
other specialized knowledge within the scope of Rule 702”) and
Federal Rule of Evidence 702 (allowing for opinion testimony if
the witness is qualified as an expert by his “knowledge, skill,
experience training, or education” and the witness' expertise
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“will help the trier of fact”).

Though this evidence is in the

form of a written report and not live testimony, that same
reasoning applies here.
Conversely, Defendants have the potential to suffer real
and significant prejudice from the admission of the Disability
Determination.

Introduction of the Disability Determination

could cause the jury, despite the questionable utility of the
Disability Determination with respect to causation, to
inappropriately give weight, based on the fact that the SSA is a
government agency, to its conclusions that the knee replacement
was a “failure” and that Mrs. Orber's disability was, at least
in part, the result of the surgery. See Johnson v. Am. Honda
Motor Co., Inc., No. 10-126, 2012 WL 1067103, at *2 (D.Mt. Mar.
28, 2012)(reaching the same conclusion); Weathersby, 378 F.
App'x at 465-66 (recognizing potential for jury to give improper
weight to EEOC determination instead of making an independent
determination).

That issue is, in fact, hotly contested in this

litigation.
III. Conclusion
Accordingly, for the above reasons, because the Disability
Determination is largely cumulative and portions of it are
substantially more prejudicial than probative, this Court
exercises its discretion to exclude the report under Federal

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Rule of Evidence 403.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: May 2, 2012

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