Ortiz v. The City Of New York , et al

Filing 131

OPINION AND ORDER: The June 1 and 2, 2014 medical records, and those records for the two follow-up treatments are largely admissible. Judgment is reserved on the admissibility of the remaining medical records. (Signed by Judge Denise L. Cote on 11/21/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
HECTOR GARCIA ORTIZ,
:
:
Plaintiff,
:
-v:
:
THE CITY OF NEW YORK, POLICE OFFICER
:
EDWIN VAZQUEZ, AND POLICE OFFICER
:
STEPHANIE HANNA,
:
:
Defendants.
:
:
-------------------------------------- X

15cv2206(DLC)
OPINION AND ORDER

APPEARANCES
For the plaintiff:
Cory T. Lee
C. T. Lee & Associates
225 Broadway, Suite 3005
New York, NY 10007
Ameer N. Benno
Benno & Associates, P.C.
110 Wall Street, 11th Floor
New York, NY 10005
For the defendants:
Melanie Speight
The City of New York Law Department
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
The parties seek guidance in advance of this 42 U.S.C. §
1983 trial on the extent to which medical records reflecting the
plaintiff’s hospitalization for intoxication will be admissible.
It is undisputed that on June 1, 2014 -- the date of the

incident at issue -- the defendant police officers had the
plaintiff taken by ambulance to a hospital and that the hospital
recorded that the plaintiff was intoxicated, combative, and
violent.

The plaintiff asserts that he was not incapacitated by

alcohol consumption on that day, and that the police had
wrongfully assaulted and seized him.

The defendants assert that

the plaintiff was intoxicated and combative, and deny that they
assaulted him.
The defendants have submitted the plaintiff’s medical
records for the date of the incident and two follow-up visits.
They have also submitted medical records for one earlier date
and three later dates which reflect treatment of the plaintiff
for intoxication.

After a description of the medical records,

the parties’ arguments regarding the admissibility of the
records are addressed.
THE MEDICAL RECORDS
I. Records Predating the June 1, 2014 Incident
There are records reflecting that the plaintiff received
treatment in a hospital on two occasions before June 1, 2014.
Of those two dates, the parties have only submitted detailed
records for one visit.

2

December 14, 2013
The June 1, 2014 medical records indicate that the patient
was “last seen” on December 14, 2013, but the June 1 records
contain no information with respect to the purpose of the
December 2013 visit.

There are no separate records for

treatment on December 14, 2013.
May 3, 2014
The plaintiff was transported by ambulance from an
apartment at 247 West 122th Street to the Long Island Jewish
Medical Center.

According to a New York City Fire Department

(“NYFD”) Emergency Medical Technicians (“EMTs”) Prehospital Care
Report Summary, the ambulance was dispatched after a 911 call by
Ortiz’s mother at 10:55 p.m.

According to the telephone log

records associated with this emergency call, Ortiz’s mother
specifically asked for an ambulance and the police to come to
the scene at least in part because he was threatening to hit
her.
The ambulance arrived on the scene at 11:03 p.m.

Under the

clinical notes of the Summary, the “Dispatch Reason” listed is
“DRUG – Hx Drug or Alchol Abuse,” and the “Chief Complaint” is
“etoh abuse.”

The summary notes that the “Provider Impression”

is that there exists “No Medical Problem” and the “Mechanism of
Injuty” is “Alcohol Intox.”

The detailed notes under the

3

“Narrative History” indicate that the police department was also
on the scene and had to help escort Ortiz to the ambulance:
UPON ARRIVAL MALE PT FOUND AMBULATORY A&O FAMILY C/O ETOH
ABUSE. FAMILY STATES PT IS VIOLENT AND HAS BEEN DRINKING.
PT WOULD NOT GO WITH US. BLS AWAITED PD FOR ESCORT. PT
WAS FIGHTING WITH PD AND AS WALKING DOWN STAIRS PT KEPT
HITTING HEAD AGAINST WALLS. PT WAS TRANSPORTERD TO HOSP 07
WITH PD ESCORT HANDCUFFED.
The summary also notes that Ortiz had a laceration on his
right eyebrow and his right elbow.

The EMTs “controlled”

bleeding of both injuries.
According to the telephone log record, the dispatcher noted
that, after the ambulance arrived, Ortiz’s mother called 911
again, stating “THAT SHE IS STILL WAITING FOR PD –- [STATES]THAT
EMS WONT REMOVE THE PATIENT BECAUSE THE AIDED IS TOO AGGRESSIVE
AND PD IS NEEDED.”
II. Records Related to the June 1, 2014 Incident
There are three sets of records related to the June 1, 2014
incident: records of the hospitalization on June 1 and 2, and
two follow-up treatments in July and August of 2014.
June 1 and 2, 2014
The medical records from St. Luke’s Hospital detail the
plaintiff’s physical state when he was brought from 60 St.

4

Nicholas Avenue to St. Luke’s Hospital by NYFD EMTs at 8:14 p.m.1
The records include a “Prehospital Care Report Summary”
completed by the FDNY EMTs on June 1.

That summary includes:

48Y/O MALE FOUND LYING DOWN IN THE GROUND WITH PD
HANDCUFFED. AS PER PT FOUND IN FRONT OF THE LIQUOR STORE
AT ST NICHOLAS. PT IS INTOXICATED, HE NEEDS TO GO TO HOSP
FOR DETOX. PT HAS ODOR OF INTOXICATING SUBSTANCE BREATHE
[sic]. PT WAS UNSTEADY GAIT, COMBATIVE, BELLIGERENT,
UNABLE TO OBTAIN THE VITAL SIGNS. NOTED AN ABRASION, LEFT
EYEBROW-BLEEDING. NAUSEOUS AND VOMITING. PT DENIED ANY
OTHER OBVIOUS INJURY. PT TXP TO HSP 20 W/O INCIDENT W/ PD.
The “initial triage” records from the hospital recorded at
10:23 p.m. indicate that the “complaint category” is “Toxic –
Poison/Substance Abuse” and the “Chief Complaint” is “Intox.”
The triage notes also contain information given to the
registered nurse on duty by the EMTs: “as per EMS, patient
admitted to drinking alcohol, yelling and aggressive, hitting
well [sic].

came in handcuffed for safety, abrasion to left

eyebrow, placed in trauma room.”
In a section regarding the medications given to the
patient, notes under three of the administered medicines state
that the patient was “combative, violent.”

Under the fourth and

final medication administered, a note signals that the patient
was “sleeping, sedated.”

The first two medications -- Haldol

and Benadryl -- were administered at 10:39 p.m.; the third –-

The records indicate that the ambulance arrived at the scene at
7:47 p.m.; left the scene at 8:08 p.m.; and arrived at the
hospital at 8:14 p.m.
1

5

Ativan -- at 10:40 p.m.; and fourth –- Tetanus / Diphtheria /
Pertussis (a vaccine)-– at 11:23 p.m.
The hospital records note that the “mechanism of injury” of
the patient was “Alcohol Intox,” and the provider’s initial
impression of the patient was that there was “No Medical
Problem.”

The relevant “Complaint Code” for the patient was

“Toxic – Poison / Substance Abuse,” and the “Barriers to
Education” are the patient’s “emotional state.”

Notes taken by

a registered nurse at 10:56 p.m. regarding a “basic assessment”
of the patient include that the patient “displays an unsteady
gait, [is] combative . . . arrived handcuffed by NYPD . . .
abrasion to left eybrown [sic], no active bleeding . . .
[patient] reports drinking heavily today.”

The notes further

state that the patient was “sedated for safety” and was “placed
on left side” for the purposes of “maintaining airway.”

Later

notes by a doctor who assessed Ortiz state that Ortiz was
“acutely agitated, curs[ed], has been drinking, required
sedation.”
Ortiz spent the night at the hospital.
shortly after noon on June 2.

He was discharged

The patient’s primary diagnosis

is listed at 12:24 p.m. on June 2 as a fracture of the “tibial
plateau.”

Under that diagnosis, the “external cause of injury”

6

is listed as “Fall, Acccidental NOS.”2

His “additional

diagnoses” include “alcohol abuse” and “alcohol intoxication.”
In discharge notes by the same doctor from 12:25 p.m., the
patient he was instructed “not to put any weight on [his] left
leg.”

A cast had been placed on Ortiz’s left leg, which his is

instructed to keep on and dry.

With the cast on, he will have
The discharge notes also

to use “crutches to get around.”

explain that an “xray did not show any broken bones in [Ortiz’s]
knee” and earlier notes by the attending radiologist, published
at 10:42 a.m., “rule[d] out tibial plateau fracture.”3
The patient left the hospital at 12:39 p.m. on June 2 after
he was instructed on the use of crutches.

The records indicate

that he left the hospital with no residual pain (“Pain Scale:
0/10”) and left by way of bus.
The patient’s discharge instructions, from three different
attending physicians throughout this time at the hospital, note
that Ortiz was referred to the Addiction Institute at Roosevelt
Hospital.

Each of his discharge notes explain that the referral

is “urgent.”

No records of any visit to the Addiction Institute

have been provided.

2

The June 1 and 2 records note in several

“NOS” is understood to mean Not Otherwise Specified.

Earlier notes from 10:28 a.m. on June 2 noted a “concern for
possible fracture involving medial tibial spine and plateau.”
3

7

places that the patient was last seen at that hospital on
December 14, 2013, with no other information about that visit.
July 17, 2014
The medical records from July 17, 2014 concern a follow-up
visit relating to injuries sustained on the evening of June 1.4
The patient is requesting a “follow up” and “cast removal.”

A

doctor’s recommended “care plan” from this visit notes that the
patient “will require 2 more weeks of healing with cast,
recommend follow up in Ortho clinic.”

The patient is referred

for a “rapid follow up” with the Orthopedics clinic.
August 7, 2014
These records are from Ortiz’s follow up visit to the
Orthopedics clinic.

The notes indicate that Ortiz described his

injury as resulting from an “assault” by “police with a night
stick” and that the injury “was at end of May or beginning of
June.”

The results of an x-ray indicate that the patient has a

“healing medial tibial plateau fracture.”
cast was removed.

The patient’s leg

The doctor’s final assessment is of a “closed

fracture of upper end of tibia” and calls for a follow up in six

The defendants note a discrepancy in the names for the patient
used in the medical records: he is at different times listed as
Hector Ortiz, Hector Garcia, and Hector Garcia-Ortiz. There are
also variations in listed birth dates. The plaintiff does not
argue that the records do not pertain to him.
4

8

weeks after the patient has begun physical therapy.

No records

of any physical therapy or a follow-up visit have been provided.
III. Records for Incidents After June 1, 2014
There are hospital records of three treatments after June
1, 2014 for alcohol abuse.

The records are for hospitalizations

that occurred between September 2014 and October 2015.
September 21, 2014
The St. Luke’s Hospital emergency room records from
September 21, 2014 stem from a visit to the hospital “with a
chief complaint of alcohol abuse.”

Ambulance records note that

the patient was picked up at “W 120 St / St Nicholas Avenue” and
taken to St. Luke’s Hospital.

The EMTs arrived at the scene at

7:59 a.m. and arrived at the hospital at 8:12 a.m.

The EMTs’

Summary Report include the following “Narrative History:”
48 Y/O MALE FOUND LYING ON SIDE WALK SLEEPING WITH A CAN OF
BEER BESIDE HIM. PT POSITIVE AOB, PT IS INCONTINENT, PT
HAS NO VISUAL INJURIES OR PBLEEDING. NO DIFFICULTY
BREATHING, PT IS AMBULATORY, PT IS COMBATIVE WITH CREW, PT
WAS TRANSPORT TO H20 FOR EVALUATION.
There were no other physical ailments associated with this
visit.

The doctor at the hospital reports that the patient’s

“physical exam [was] unremarkable,” but that the exam was
“limited by intoxication.”
The physical exam took place at 8:28 a.m.

The patient was

reassessed at 12:19 p.m. and the doctor’s notes indicate that
9

the patient was by then “clinically sober.”

The patient was

discharged shortly thereafter with the following note: ”Please
stop abusing alcohol to the point where you end up in the
emergency department.”
June 4, 2015
Another set of emergency room records dated June 4, 2015
detail a visit to St. Luke’s Hospital after an ambulance
collected the plaintiff by using a stretcher from a residence at
418 West 130th Street in uptown Manhattan.

The ambulance was

dispatched after a 911 call was placed at 11:20 p.m.

The EMT’s

Summary Report notes that Ortiz was “unconscious” when the EMTs
first arrived.

The detailed notes state:

UNIT ARRIVED TO APARTMENT BUILDING, WITH ENGINE COMPANY ON
SCENE PRESENTED WITH 49 YO MALE, FOUND LYING IN 1FL LOBBY
BY STAIR CASE. PT WAS EASILY AROUSED BY VERBAL CALL. UPON
AWAKENING SPEECH IS SLURRED HE ATTEMPT [sic] TO STAND AND
WALK AWAY WITH AN UNSTEADY DISCOORDINATED GAIT, ALMOST FALL
[sic]. HE IS AGGRESSIVE AND HOSTILE, MAKES GESTURES THAT
HE WILL STRICK [sic] BY FORMING FIST AND KICKS. HE
THREATENS PD AND AMES CREW VERBALLY AND UNCOOPERATIVE.
PT WAS ASSISTED TO STRETCHER WHICH HE ATTEMPTS TO REMOVE
STRAPS AND GET OF [sic] WHILE BEING WHEELED PLACING HIMSELF
AND CREW AT DANGER OF INJURY. ALL EFFORT ATTEMPTED AT
TRYING TO KEEP HIM CALM BY SPEAKING NICELY AND REASURING
[sic] HIM THAT HE WAS BEING HELPED. WHICH HE SHOWS NO
RESPONSE TO, HE REMAINS AGGRAVATED AND TRIES TO KICK CREW
AND PD WHICH FORECFULY TRYING TO GET OFF THE STRECHER. PD
HAD TO RESTRAIN HIM. AND ESCORT EMS.
PT ALLOWS FOR NO ASSESSMENT DURING THE RIDE HIS HEAD
REQUIRERS [sic] CONTINUOUS MANUAL PROTECTION OF HIS HEAD AS
HE ATEMPTS [sic] TO HIT HIS HEAD AGAINST ANY SURFACE. PT
WAS TX W/O DELAY
10

The notes do not report any other medical issue.

The

ambulance left the scene at 11:33 p.m. to take the plaintiff to
the hospital.

At 6:37 a.m. the following day, at the hospital,

a doctor reported that the plaintiff was at that point
“clinically unintoxicated.”

He was discharged soon after.

October 10, 2015
These records reflect a hospitalization at St. Luke’s
Hospital.

The records indicate that the patient was transported

to the hospital by an ambulance, but there are no EMT records
included that indicate where he was picked up, the impressions
and diagnoses of the EMTs, or at what precise time he was picked
up.

The hospital records note that he arrived at 1:31 a.m.

A

registered nurse’s “initial assessment” at 1:38 a.m. notes that,
”upon arrival,” the patient “was screaming, cursing and
threatening staf[f].”

The nurse’s notes indicate Ortiz was

“placed in trauma room, IV established and [the patient was]
sedated.”

Notes by Ortiz’s attending physician, taken at 1:39

a.m., note that the “patient arrived combative, restrained by
NYPD, yelling, unable to reorient patient, given sedation for
patient and staff protection, will obs[erve] and reevaluate . .
. no signs of trauma.”
Later notes from a different doctor at the hospital taken
at 2:08 a.m. explain that, as the EMTs described to her, the
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patient’s emergency room visit was apparently the result of the
plaintiff’s mother calling the police because he “came home
intoxicated and was aggressive with his mother.”

After being

kept under observation throughout the night, Ortiz was
discharged at 10:34 a.m.

As part of the patient’s discharge

instructions, Ortiz is instructed to “follow up” with his doctor
or the clinic listed in order to address his alcohol abuse.
DISCUSSION
The defendants seek to admit the medical records to show
the plaintiff’s chronic alcohol abuse.

They contend evidence of

his alcohol abuse is relevant to the jury’s evaluation not only
of his conduct on June 1, 2014, when he interacted with the
defendants, but also to his claim for damages, his credibility,
and his ability to perceive and recall events.

They assert as

well that the records prior to June 1, 2014, are admissible as
similar act evidence pursuant to Fed. R. Evid. 404(b) to
demonstrate the plaintiff’s knowledge of his dangerous conduct
when intoxicated.

They also contend that the entire set of

records is admissible as habit evidence, to show that the
plaintiff has a habit of drinking to the point that he is
combative, incoherent and requires hospitalization.
The plaintiff objects to the admission of any records for
dates other than June 1 and 2, 2014, and seeks exclusion through

12

redaction of many passages from the June 1 and 2, 2014 records.
He moves to redact from the June 1 and 2 hospital records the
EMT notes, the EMTs’ statements to hospital personnel,
observations of the plaintiff as combative, having slurred
speech, and notes that the plaintiff stated that he drank
heavily that day.

The plaintiff also seeks to exclude passages

that report the plaintiff’s chief complaint as intoxication and
the discharge diagnoses of alcohol abuse.

Finally, the

plaintiff seeks to exclude the reference at his discharge to the
cause of injury as “Fall, accidental NOS.”
The general principles regarding admissibility of evidence
at trial are quickly stated.

Evidence is relevant if it has any

tendency to make a fact of consequence in determining the action
“more or less probable than it would be without the evidence.”
Fed. R. Evid. 401(a).

“[U]nless an exception applies, all

relevant evidence is admissible.”

United States v. White, 692

F.3d 235, 246 (2d Cir. 2012) (citation omitted).
Evidence that is relevant may be excluded if its probative
value is substantially outweighed by, among other
considerations: “the danger of unfair prejudice, confusing the
issues, [or] misleading the jury.”

Fed. R. Evid. 403.

“[R]elevant evidence is always prejudicial to one side.”
States v. Kaplan, 490 F.3d 110, 122 (2d Cir. 2007).

United

So, for

relevant evidence to be excluded as prejudicial, the prejudice
13

must be “unfair” in the sense that the evidence has some
“adverse effect beyond tending to prove the fact or issue that
justified its admission into evidence.”

Perry v. Ethan Allen,

Inc., 115 F.3d 143, 151 (2d Cir. 1997) (citation omitted).
In addition, because the plaintiff will testify on his own
behalf at trial, the defendants will be allowed to attack his
credibility.

The scope of cross examination will be governed in

large part by the plaintiff’s contentions at trial and the
content of his direct testimony.

A witness’s credibility may be

attacked by showing that his capacity to observe, remember, or
narrate is impaired.

See United States v. Robinson, 583 F.3d

1265, 1272 (10th Cir. 2009) (extensive illegal drug use) (citing
4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal
Evidence, § 607.05[1]).

Accordingly, it is “within the proper

scope of cross-examination to determine whether a witness was
under the influence of drugs or narcotics or alcohol at the time
of observation of events in dispute, or at the time the witness
is testifying.”

United States v. DiPaolo, 804 F.2d 225, 229 (2d

Cir. 1986) (citation omitted).
Moreover, hospital records and other records reflecting
medical treatment may be independently admissible, if relevant,
as business records or under the exception to the hearsay rules
that is directly addressed to statements made for the purpose of

14

receiving medical treatment.

Business records are admissible as

long as a witness can testify or certification can show that
(A) the record was made at or near the time by -- or from
information transmitted by -- someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation,
or calling, whether or not for profit;
(C) making the record was a regular practice of that
activity[.]
Fed. R. Evid. 803(6).

“Business . . . records are generally

admissible absent confrontation not because they qualify under
an exception to the hearsay rules, but because -- having been
created for the administration of an entity's affairs and not
for the purpose of establishing or proving some fact at trial -they are not testimonial.”
U.S. 305, 324 (2009).

Melendez-Diaz v. Massachusetts, 557

“The purpose of the rule is to ensure

that documents were not created for personal purposes or in
anticipation of any litigation so that the creator of the
document had no motive to falsify the record in question.”
United States v. Kaiser, 609 F.3d 556, 574 (2d Cir. 2010).

The

Second Circuit has stated that the business records exception
“favors the admission of evidence rather than its exclusion if
it has any probative value at all.”

Id. (citation omitted).

“In all cases, the principal precondition to admission of
documents as business records pursuant to Fed. R. Evid.
803(6) is that the records have sufficient indicia of
trustworthiness to be considered reliable.”
15

Potamkin Cadillac

Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir. 1994)
(citation omitted).
To lay a proper foundation for a business record, a
custodian or other qualified witness must testify that the
document was kept in the course of a regularly conducted
business activity and also that it was the regular practice
of that business activity to make the record. The
custodian need not have personal knowledge of the actual
creation of the document to lay a proper foundation.
United States v. Komasa, 767 F.3d 151, 156 (2d Cir. 2014)
(citation omitted).

“There is no requirement that the person

whose first-hand knowledge was the basis of the entry be
identified, so long as it was the business entity's regular
practice to get information from such a person.”

Retirement

Plan of UNITE HERE Nat. Retirement Fund v. Kombassan Holding
A.S., 629 F.3d 282, 289 (2d Cir. 2010) (citation omitted).

A

business record need not be mechanically generated to be part of
a ‘regular practice.’”

Kaiser, 609 F.3d at 575.

A showing of

timeliness “is essential because any trustworthy habit of making
regular business records will ordinarily involve the making of
the record contemporaneously.”

Abascal v. Fleckenstein, 820

F.3d 561, 565 (2d Cir. 2016) (citation omitted).
Other Circuit courts have held that medical records are
admissible under the business records exception to the hearsay
rule, provided that the offering party can meet the criteria of
Rule 803(6).

See, e.g., United States v. Ellis, 460 F.3d 920,

16

926–27 (7th Cir. 2006) (finding medical records admissible under
the business records exception even when “the medical
professionals in [the] case might have thought their
observations would end up as evidence in a criminal prosecution,
[because] the objective circumstances of th[e] case indicate
that their observations and statements introduced at trial were
made in nothing else but the ordinary course of business”);
United States v. Hall, 419 F.3d 980, 987 (9th Cir. 2005)
(hospital records); Wilson v. Zapata Off-Shore Co., 939 F.2d
260, 271 (5th Cir. 1991)(business records exception supports
admission of hospital records when source and recorder of
information are acting in the regular course of business);
Manocchio v. Moran, 919 F.2d 770, 780 (1st Cir. 1990); Norton v.
Colyer, 828 F.2d 384, 386 (6th Cir. 1987) (hospital records with
diagnosis of drug use admitted as business records).
This interpretation is not novel.

In Thomas v. Hogan, the

Fourth Circuit held that the results of a blood test for
intoxication conducted on the plaintiff and contained in a
hospital record were admissible under the federal Shop-Book
Statute, 28 U.S.C. § 1732, the predecessor to Rule 803(6).
F.2d 355, 360 (4th Cir. 1962).

308

The Fourth Circuit held that the

statute supplied a “presumption that diagnosis and scientific
tests are properly made by qualified personnel, if the recorded
information reflects usual routine of the hospital and if it is
17

the practice to record such data contemporaneously or within a
reasonable time.”

Id.

Noting that “[h]uman life will often

depend on the accuracy” of hospital records, the court reasoned
that it is reasonable to presume that hospital records are
trustworthy.

Id. at 361.

Separately, statements made for purposes of medical
diagnosis and treatment are admissible as an independent
exception to the prohibition against hearsay.

A statement is

admissible if it “(A) is made for -- and is reasonably pertinent
to -- medical diagnosis or treatment; and (B) describes medical
history; past or present symptoms or sensations; their
inception; or their general cause.”

Fed. R. Evid. 803(4).

Further, a “statement need not have been made to a physician.
Statements to hospital attendants, ambulance drivers, or even
members of the family might be included.”

Fed. R. Evid. 803(4)

Advisory Committee’s Note to 1972 Proposed Rules.

The

statements may relate to causation if they are “reasonably
relevant” to the diagnosis or treatment, but statements as to
fault are not ordinarily admissible.

Id.

Exceptions such as

this one to the hearsay rules “rest on the belief that certain
statements are, by their nature, made for a purpose other than
use in a prosecution and therefore should not be barred by
hearsay prohibitions.”

Michigan v. Bryant, 562 U.S. 344, 362

18

n.9 (2011) (listing the exception for statements for purposes of
medical diagnosis or treatment).
Out of court statements heard by witnesses or contained in
records may also be admitted for their truth under the present
sense exception to the hearsay rules.

The present sense

impression exception permits a court to admit hearsay testimony
of a statement “describing or explaining an event or condition,
made while or immediately after the declarant perceived it.”
Fed. R. Evid. 803(1).

The exception is “derived from the belief

that contemporaneous statements about observed events leave less
time to forget or fabricate and, therefore, tend to be
reliable.”

United States v. Gonzalez, 764 F.3d 159, 169 (2d

Cir. 2014).
The defendants also seek to admit the hospital records for
the dates other than June 1, 2014 as evidence of similar acts or
conduct.

Evidence of another act “is not admissible to prove a

person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1).

Where, however, the evidence is

offered for relevant purposes, such as “proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident,” it may be admissible.
Id. at 404(b)(2).

Like any other evidence, however, the

probative value of this other act evidence may not be
19

substantially outweighed by any unfair prejudice.
Evid. 403.

See Fed. R.

The Second Circuit has adopted an “inclusionary

approach” to the admission of other act evidence, under which
evidence “is admissible if offered for any purpose other than to
show a defendant's criminal propensity.”

United States v.

Dupree, 870 F.3d 62, 76 (2d Cir. 2017) (citation omitted).

The

Second Circuit uses a four-part test to determine whether
evidence of extrinsic acts is properly admitted:
[The Second Circuit] consider[s] whether: (1) the prior act
evidence was offered for a proper purpose; (2) the evidence
was relevant to a disputed issue; (3) the probative value
of the prior act evidence substantially outweighed the
danger of its unfair prejudice; and (4) the court
administered an appropriate limiting instruction.
Id. (citation omitted).
In addition, there are exceptions to the general
inadmissibility of character evidence, for example, “[w]hen a
person’s character or character trait is an essential element of
a charge, claim, or defense, the character or trait may also be
proved by relevant specific instances of the person’s conduct.”
Fed. R. Evid. 405(b).

“Rule 405, however, deals only with the

methods by which character may be proven once it has been
determined that character evidence is admissible under Rule
404(a).”

Hynes v. Coughlin, 79 F.3d 285, 293 (2d Cir. 1996).

Of the three methods of proving character provided by the
rule, evidence of specific instances of conduct is the most
convincing. At the same time it possesses the greatest
capacity to arouse prejudice, to confuse, to surprise, and
20

to consume time. Consequently the rule confines the use of
evidence of this kind to cases in which character is, in
the strict sense, in issue and hence deserving of a
searching inquiry. When character is used circumstantially
and hence occupies a lesser status in the case, proof may
be only by reputation and opinion.
Fed. R. Evid. 405 Advisory Committee’s Note to 1972 Proposed
Rules (emphasis supplied).
In contrast to character evidence, evidence of a person’s
habitual behavior is more readily admissible.

In particular,

[e]vidence of a person’s habit . . . may be admitted to
prove that on a particular occasion the person . . . acted
in accordance with the habit or routine practice. The
court may admit this evidence regardless of whether it is
corroborated or whether there was an eyewitness.
Fed. R. Evid. 406.
The difference between character and habit evidence has
been described as follows:
The two are easily confused. People sometimes speak
of a habit for care, a habit for promptness, or a
habit of forgetfulness. They may say that an
individual has a bad habit of stealing or lying.
Evidence of these “habits” would be identical to the
kind of evidence that is the target of the generalized
rule against character evidence. Character is a
generalized description of a person’s disposition, or
of the disposition in respect to a general trait, such
as honesty, temperance or peacefulness, that usually
is regarded as meriting approval or disapproval.
Habit, in the present context, is more specific. It
denotes one’s regular response to a repeated
situation. If we speak of a character for care, we
think of the person’s tendency to act prudently in all
the varying situations of life -- in business, at
home, in handling automobiles and in walking across
the street. A habit, on the other hand, is the
person’s regular practice of conduct. Thus, a person
may be in the habit of bounding down a certain
21

stairway two or three steps at a time, of patronizing
a particular pub after each day’s work, or of driving
his automobile without a seatbelt. The doing of the
habitual act may become semi-automatic, as with a
driver who invariably signals before changing lanes.
1 McCormick On Evid. § 195 (7th ed. 2013)(emphasis supplied).
“Much evidence is excluded simply because of failure to achieve
the status of habit.

Thus, evidence of intemperate ‘habits’ is

generally excluded when offered as proof of drunkenness in
accident cases.”

Fed. R. Evid. 406 Advisory Committee’s Note to

1972 Proposed Rules.

Moreover, “a general habit of intemperance

tells us nothing of the witness’s testimonial incapacity unless
it involves actual intoxication at the time of the event
observed or at the time of testifying.”

DiPaolo, 804 F.2d at

229 (emphasis in original) (citing 3A J. Wigmore, Evidence §§
933–934 (Chadbourne rev. 1970)).

The Tenth Circuit similarly

observed that, because the habit of intemperance “does not
involve the veracity trait, . . .
admissible.”

Id.

it will usually not be

(citation omitted).

See also Mary Ellen

Enterprises v. Camex, Inc., 68 F.3d 1065, 1073 (8th Cir. 1995)
(finding that the district court did not abuse its discretion in
excluding evidence of the plaintiff’s alcoholism, because it did
not “tend to show that [she] had any difficulty understanding or
recalling events related to her dealings with [the defendant]”).
The Fifth Circuit has approved exclusion of evidence of
four prior convictions for public intoxication over the course
22

of three and one-half years when it is “clear that the
[defendant] intended for the [plaintiff’s] prior convictions to
show that he was intoxicated on the night of the accident.”
Reyes v. Missouri Pac. R. Co., 589 F.2d 791, 794 (5th Cir.
1979).

On the other hand, the Eleventh Circuit approved use of

anecdotal and reputation evidence of an employee’s prior
intoxication over the course of six years under Rule 406 to
demonstrate a “uniform pattern of behavior” of carrying and
consuming alcohol while on the job.

Loughan v. Firestone Tire &

Rubber Co., 749 F.2d 1519, 1523 (11th Cir. 1985).
While discussions of the admissibility of evidence of
alcohol abuse and alcoholism have existed mainly in the context
of character and habit evidence, see supra, there is reason for
courts to understand alcoholism outside these bounds.

Today,

alcoholism is considered as much a disease as a reflection of
character or habit.

Courts have recognized, for example, that

alcoholism and other addictions can be considered as diseases or
disabilities for the purposes of the American with Disabilities
Act.

See, e.g., Regional Economic Community Action Program,

Inc. v,. City of Middletown, 294 F.3d 35, 46 (2d Cir. 2002)
(“Alcoholism, like drug addiction, is an ‘impairment’ under the
definitions of a disability set forth in the FHA, the ADA, and
the Rehabilitation Act.”).

There exist ample medical studies

dedicated to the study of alcoholism as a medical illness.
23

Viewed in this light, expert testimony regarding a
witness’s addiction to alcohol or medical records pertaining to
a party’s alcoholism may be admissible if the presence of the
addiction is relevant to the issues at trial.

For instance, in

Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998), the plaintiff
disputed that he was intoxicated at the time of the events at
issue.

The Ninth Circuit held that a trial judge was “within

his discretion in admitting” expert testimony that relied on
information that the plaintiff had been admitted to a detox
facility twice in the previous two years to support the point
that a “typical characteristic of alcoholics is denial that they
have been drinking when they plainly have”.

Id. at 686.

A

court may admit evidence “of a disease which, if the jury
believed the expert testimony, would cause [the plaintiff] to be
mistaken in his claim of sobriety on the night at issue.”

Id.

In Halvorsen, the plaintiff sued the police officers who had
taken him to a detox center after encountering him in response
to a 911 call.

The center’s records documented him as having an

unsteady gait, smelling of alcohol, and unable to care for
himself.

Id. at 683.

June 1 and 2, 2014
The medical records from June 1 and 2, 2014 are relevant
and admissible pursuant to business records exception.

24

See Fed.

R. Evid. 803(6).

The records also contain statements made by

Ortiz to medical personnel for the purposes of medical diagnoses
and treatment that are separately admissible under Fed. R. Evid.
803(4), or admissible as admissions by a party opponent pursuant
to Fed. R. Evid. 801(d)(2).

Finally, many statements by EMTs

and hospital staff also reflect the contemporaneous observations
-- i.e., the present sense impressions -- of the medical team
who tended to Ortiz and are admissible as well on that ground.
See Fed. R. Evid. 803(1).

The notes in the records are

timestamped, indicating that they were jotted down during or
soon after examining and treating the patient.

The records

describe, in clear detail written by multiple medical
professionals, that Ortiz was highly intoxicated and combative
at a relevant period of time.
The June 1 and 2 records are directly relevant to the
plaintiff’s claims, his credibility and his request for damages.
They describe the degree to which he suffered physical injuries
on the night of June 1.

The plaintiff’s mental state is

relevant to his claims, to his ability to observe and remember
the encounter with the defendants on June 1, and to the defense
being offered to the charges of excessive force and false
imprisonment.
The records do not unfairly prejudice the plaintiff: as the
plaintiff himself has admitted, he was drinking on June 1.
25

These records confirm what the plaintiff himself admits and more
precisely describe the degree of his intoxication, which is
disputed in this case.

There is no unfair prejudice to the

plaintiff from the admission of these relevant records and none
of the other concerns identified in Rule 403 substantially
outweigh their considerable probative value.
The plaintiff seeks to redact those portions of the June 1
and 2 records that reflect his alcohol consumption.
several arguments to support those redactions.

He makes

With the limited

exceptions described below, these requests do not succeed.
Ortiz first argues that, because no blood alcohol test was
administered, there is no way to know how intoxicated he
actually was.

Accordingly, because no objective metric was used

to measure his intoxication, he contends that any references to
intoxication are necessarily subjective opinion testimony.
There is no requirement in the law that the entries in medical
records, which are appropriately received as business records,
be limited to test results.

Indeed, it is the business of

hospitals and medical providers to develop opinions or diagnoses
based upon examination and to render treatment in reliance of on
those diagnoses.

Nor does the plaintiff offer authority in

support of his argument that intoxication may only be assessed
by medical providers through blood tests.

The records reflect

the impressions of multiple medical professionals that Ortiz was
26

intoxicated far beyond what he admits, and support those
impressions with consistent descriptions of his behavior.

The

doctors were sufficiently confident of their opinions to
prescribe medication based on that diagnosis and to refer Ortiz
at the time of discharge to an Addiction Institute for
treatment.
The plaintiff next argues that records relating to his
alcohol consumption are irrelevant to the defense being offered
at trial to one of the plaintiff’s claims, the claim of false
arrest.

He contends that mere intoxication is insufficient to

justify an arrest, and that in any event, the details of his
mental and physical state while in the ambulance and at the
hospital have no bearing on his condition “at the time of his
arrest.”
The defendants support their seizure of the plaintiff on
June 1 as appropriate under N.Y. Mental Hygiene Law § 22.09.
Under that law, “[a] person who appears to be incapacitated by
alcohol and/or substances to the degree that there is likelihood
to result in harm to the person or to others may be taken by . .
.

a police officer . . . to a treatment facility for purposes

of receiving emergency services.”
22.09(b)(2).

N.Y. Mental Hyg. Law §

A person is “incapacitated” if he or she “as a

result of the use of alcohol and/or substances, is unconscious
or has his or her judgment otherwise so impaired that he or she
27

is incapable of realizing and making a rational decision with
respect to his or her need for treatment.”

Id. § 22.09(a)(2).

While evidence that Ortiz was diagnosed with “alcohol
intoxication” at the hospital was insufficient at summary
judgment to establish as a matter of law that Ortiz “appeared
incapacitated at the time the officers seized him,” Ortiz v.
City of New York, 16cv2206 (DLC), 2016 WL 7009059, at *2
(S.D.N.Y. Nov 30, 2016), that does not render the information in
the hospital records irrelevant or inadmissible at trial.

While

the notes contained in the records were not recorded at the
precise moment of his handcuffing, a jury could nevertheless
reasonably find them highly informative regarding his state at
the time of the police encounter.

After all, Ortiz does not

claim that he drank any more alcohol between the time of his
seizure by the officers and when the ambulance personnel
arrived.

Therefore, a jury could find that his state of

intoxication observed by the EMTs was approximately the same, or
at least no worse, than his state when the police encountered
him.

The same can be said of the observations made by nurses

and physicians who treated Ortiz at the hospital.

In addition,

because his mental state is directly relevant to his claims, to
his ability accurately to observe and remember the encounter
with the defendants on June 1, and to the defendants’ defense to
the charges of not only false imprisonment but also excessive
28

force, the hospital records regarding Ortiz’s intoxication are
admissible.
The plaintiff seeks to redact from the EMT notes the entry
for “dispatch reason”, which reads, “EDP – Psychiatric Patient.”5
He argues that because the EMTs were not present during the
encounter between him and the defendants, this entry should be
excluded.

He also seeks to redact the EMT descriptions of the

chief complaint and mechanism of injury for Ortiz as “alcohol
intox”.

The request to redact the EMT observations of Ortiz are

denied.

As described above, these are admissible under the

business records rule and as present sense impressions.

The

entry regarding the “dispatch reason”, however, appears to
record the information given by the police as they requested an
ambulance.

If the plaintiff requests, the jury will be

instructed that the “dispatch reason” entry, which describes
Ortiz as an “EDP-Psychiatric Patient”, is offered not for its
truth, but only for the fact that this was the reason recorded
for summoning an ambulance to the scene.
Ortiz seeks to redact the entries by the triage nurse that
note that he admitted to drinking alcohol and that he was
yelling, aggressive, and violent.

He argues that any

information she noted was given to her by the EMTs, not by the

5

EDP refers to emotionally disturbed person.
29

plaintiff himself: the notes say “per EMS” and, further, the
nurse noted that Ortiz was “unable to answer” her questions due
to his “emotional state.”

Ortiz argues that the EMTs’ own

observations about the plaintiff’s behavior are irrelevant
because their observations were made after the interactions
between Ortiz and the defendants that are at issue here.

As

already explained, the observations by the EMTs were made
sufficiently close in time to the incident at issue to be
probative.

The EMTs’ descriptions of any statement that Ortiz

made to them is admissible as an admission by a party opponent
and/or a statement made for the purpose of seeking medical
treatment, and the recording of that admission and their own
observations of Ortiz are admissible under the business records
exception to the hearsay rules.
Ortiz argues that the notes from a nurse recording his
statement that he was “drinking heavily today” are inadmissible
hearsay.

Statements by Ortiz to the nurse are not hearsay.

They are admissible for their truth as admissions by a party
opponent.

They are admissible as well under exceptions to the

hearsay rules as statements made for the purposes of medical
diagnosis and treatment, and as a patient’s recorded statements
in a hospital’s business records.

Read in the broader context

of the notes, Ortiz’s admission helps to explain Ortiz’s
physical symptoms: an unsteady gait, combativeness, slurred
30

speech, and the need to sedate him.

Given that the records list

alcohol intoxication and alcohol abuse as the pertinent
diagnoses, the statements that Ortiz made that explain his level
of intoxication are highly relevant.
The plaintiff seeks to redact notes made at discharge by a
physician that indicate that the “external cause” of the
patient’s leg injury was “Fall, accidental NOS.”

Ortiz argues

that, because the cause of the injury is irrelevant to his
treatment or diagnosis, the statement does not fall under the
exception to hearsay for statements made for medical diagnosis
or treatment.

To the contrary, the cause of the leg injury is

pertinent to treatment given on June 1 and June 2.

It relates

directly to the physician cautioning Ortiz against alcohol
abuse.

Moreover, Ortiz’s assertion that this description of the

cause did not come from the plaintiff himself seems unwarranted.
The explanation appears in the discharge records, many hours
after the EMT personnel had delivered Ortiz to the hospital, and
there is no reason to conclude that anyone but the plaintiff
could have been the source of that information.

As a statement

from the plaintiff, it is also admissible as an admission by a
party opponent.
Finally, the plaintiff seeks to redact notations in the
June 1 and 2 records that indicate that the patient was “last
seen” on December 14, 2013.

Because the medical records contain
31

no information with respect to the purpose of the December 2013
visit, the reference to an earlier visit invites speculation.
The notation shall be redacted.
July 17 and August 7, 2014
Doctors’ notes relating to the treatment of Ortiz’s leg
injury on two follow-up visits are generally admissible.

Like

the June 1 and 2 notes, this information is directly relevant to
plaintiff’s claims and request for damages.

They describe the

continuing severity of physical injury suffered by the plaintiff
on the night of June 1 and how long the injury took to heal.
The parties have not yet addressed those portions of the
August 7 records in which Ortiz volunteers a description of how
his left leg injury occurred.

He blames the police for the

injury that occurred over two months earlier.

Ortiz’s

statements do not appear to relate to the removal of the cast or
any other treatment he received that day.

The parties will be

given an opportunity to address the admissibility of this
portion of the August 7 records.
Records for Remaining Dates
Ortiz disputes his level of intoxication on June 1, 2014
and the effect of his intoxication on his interactions with
police on that day.

The defendants argue that, taken together,

the medical records for five occasions -- May 3, June 1 and
32

September 21, 2014, and June 4 and October 10, 20156 -- show that
the plaintiff has a demonstrated history of intoxication to the
point of incapacitation and aggression.

They argue, therefore,

that the records of the four occasions besides the date of the
incident at issue in which Ortiz was treated in a hospital for
intoxication are relevant and admissible.
These five occasions, which spanned a period of sixteen
months, have many common elements.

In every instance, an

ambulance brought Ortiz from his neighborhood to a hospital7,
where he was diagnosed as intoxicated.

On three occasions he

was described as belligerent or aggressive and the NYPD was
present at the scene.

The parties will be given an opportunity

to address the admission of the records for May 3 and September
21, 2014 and June 4 and October 10, 2015 in light of the legal
principles outlined above.

The analysis will be informed by the

nature of the plaintiff’s arguments and testimony at trial, as
well as the defense asserted in response to Ortiz’s claims.

The defendants also seek to include references to the December
14, 2013 visit, although they include no records or information
about this visit.
6

On all occasions except May 3, 2014, he was taken to St.
Luke’s.
7

33

CONCLUSION
The June 1 and 2, 2014 medical records, and those records
for the two follow-up treatments are largely admissible.
Judgment is reserved on the admissibility of the remaining
medical records.

Dated:

November 21, 2017
New York, New York
__________________________________
DENISE COTE
United States District Judge

34