E-Alert Case Updates

A Hearsay Refresher

Doali-Miller v. Supervalu, Inc.
Civil Case No.: PWG-10-2422 (U.S. District Court for the District of Maryland, April 11, 2012)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

This Memorandum and Order by Hon. Paul W. Grimm addressed a Motion in Limine involving the admissibility of two medical records in a premises liability case. The Defendant was seeking to prevent the admission of certain passages from two (2) reports prepared by the Plaintiff’s doctor, James F. Johnston, M.D.

Defendant’s Motion in Limine first challenged the admissibility of Dr. Johnston’s Initial Physician’s Report dated April 5, 2010, three days after Plaintiff allegedly sustained her injuries. Specifically, Defendant sought the exclusion of the following passage: “[Plaintiff] Ana D. Doali-Miller . . . states she was injured when she bumped into a protruding guardrail which she states had been cut at the Safeway Food Store at Northwood Plaza in Baltimore City on 04/02/2010. She states she then fell onto the shopping cart she was reaching for.” The Defendant claimed this passage was hearsay not within any exception and that Plaintiff intended to introduce the report without supporting expert testimony (due to the death of Dr. Johnston). As a threshold matter, the Court concluded that the report fell into the business records hearsay exception. The second issue was the hearsay within hearsay in the form of the Plaintiff’s statements to the physician that were recorded in the report. The Court concluded that these statements fell into a hearsay exception as those statements were made for purposes of medical diagnosis or treatment—with the exception of the statement regarding where the alleged injury occurred. As far as the assertion that the alleged injury occurred “at the Safeway Food Store at Northwood Plaza in Baltimore City”—that statement was not “reasonably pertinent to medical diagnosis or treatment”—and so the Court ordered it to be redacted before being introduced at trial. The Court stated that generally, statements “that identify the individual or entity responsible for the injury are ‘seldom if ever, . . . sufficiently related’ to diagnosis or treatment, and are therefore inadmissible.” As to Defendant’s challenge to establishing a foundation for the report due to the death of the doctor, the Court stated that a foundation could be laid in the form of a records certification or in the form of testimony from the records custodian at the time of trial.

The Defendant second challenged the physician’s Discharge Report, and requested the exclusion or redaction of the following passage:

All medical treatments and evaluations were deemed medically necessary for this patient’s reported complaints with the reported accident date of 04/02/2010. In my opinion, the injuries and associated pain were related to the accident. To a reasonable degree of medical certainty her subjective complaints and the objective findings were consistent with the mechanism of injury as described by the patient on 04/02/2010. The treatment she received was reasonable and necessary and charges for medical treatment from ITCM of Maryland were fair and similar to other healthcare providers in the region.

Defendant again argued that this was hearsay not within any exception. The Court ruled that because the report “clearly” appeared to be prepared in anticipation for litigation, that the entire report must be excluded from evidence as it was inadmissible hearsay. Unlike the Initial Report, which was prepared in the “ordinary course” of business, the discharge report lacked trustworthiness since it was favorable to Plaintiff, used the “magic words” required of medical experts when stating their opinions in Court, and was prepared more than fifty days after the incident and where no intervening treatment had occurred. For those reasons, the discharge report did not fall into the business records exception to the hearsay rule, and so it was excluded.