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Kay v. Lamar Advertising of South Dakota

August 21, 2009

RICHARD W. KAY AND DEANA D. KAY, HUSBAND AND WIFE, PLAINTIFFS,
v.
LAMAR ADVERTISING OF SOUTH DAKOTA, INC., A SOUTH DAKOTA CORPORATION, AND CODY P. BURTON, DEFENDANTS/COUNTER-CLAIMANTS,
v.
RICHARD W. KAY, COUNTER-DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER TO EXCLUDE CERTAIN STATEMENTS IN MEDICAL RECORDS RELATING TO SPEED

Plaintiffs, Richard Kay and Deana Kay, move in limine to preclude the introduction of statements pertaining to plaintiffs' speed, found in four exhibits, on the basis that such statements are hearsay and not within any exception. Alternatively, plaintiffs seek to exclude these statements on the basis that their probative value is substantially outweighed by unfair prejudice. Defendants, Lamar Advertising of South Dakota and Cody Burton, oppose the motions. For reasons stated below, plaintiffs' motion is granted as to Exhibit 3, Exhibit 2, and Exhibit 4. Plaintiffs' motion is denied with respect to Exhibit 1. Each exhibit will be individually addressed.

DISCUSSION

1. That the Statement Pertaining to Plaintiffs' Speed in Exhibit 3, the Initial Ambulance Report, be Excluded

Plaintiffs argue the statement pertaining to plaintiffs' speed in Exhibit 3 is hearsay and not within any exception. Exhibit 3 is an ambulance report and states, "Chief Complaint: MCA--35-45 mph--hit by semi." Defendants respond by arguing the statement is admissible under Rule 613 as a prior inconsistent statement, or under Rule 801(d)(2)(A) as an admission by a party opponent. Alternatively, defendants argue the statement falls within an exception to the hearsay rule under 803(4) as a statement for purposes of medical diagnosis or treatment and 803(6) as a record of regularly conducted activity.

A. Rule 613 and Rule 801(d)(2)(A)

In order for Rule 613 or Rule 801(d)(2)(A) to apply, the statement must be attributed to the party against whom it is being offered. See Fed. R. Evid. 613 (stating, "[i]n examining a witness concerning a prior statement made by the witness" (emphasis added)); Fed. R. Evid. 801(d)(2)(A) (stating, "the party's own statement, in either an individual or a representative capacity"(emphasis added)). Exhibit 3's statement, "35-45 mph," does not indicate the source of the statement. Defendants have not demonstrated, or argued, that either plaintiff made the statement found in Exhibit 3. Thus, Rules 613 and 801(d)(2)(A) are not applicable with regard to Exhibit 3's statement because the source of the statement cannot be identified as belonging to either plaintiff.

B. Rule 803(4)

A two-step analysis is required for purposes of determining whether the statement falls within Rule 803(4). See Roberts v. Hollocher, 664 F.2d 200, 204 (8th Cir. 1981). First, it must be shown that the "declarant's motive in making the statements [was] consistent with a desire to promote treatment." Id. Second, it must be shown that it was "reasonable for the physician to rely on the information in his diagnosis or treatment." Id.

This "two-part test flows naturally" from the "two independent rationales" underlying the existence of Rule 803(4). United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980). The first requirement under Rule 803(4) "focuses upon the patient and relies upon the patient's strong motive to tell the truth because diagnosis or treatment will depend in part upon what the patient says." Id.at 83-84.

As noted above, the statement found in Exhibit 3 cannot be attributed to either plaintiff. The "strong motive to tell the truth," generally attributable to the patient's self-interest in receiving proper treatment, is absent. See Roberts, 664 F.2d at 204 (noting "the patient's strong motivation to be truthful"); see also Iron Shell, 633 F.2d at 84.The first requirement, therefore, has not been satisfied. Stull v. Fuqua Indus., Inc., 906 F.2d 1271, 1274 (8th Cir. 1990) ("In the absence of any evidence attributing the statement to [plaintiff], the district court acted well within its discretion in excluding the hospital record."). There is no need to address the second element, which concerns itself with the doctor's reliance on the statement, because the first element has not been satisfied. Thus, Rule 803(4) does not allow for the admission of the statement in Exhibit 3.

C. Rule 803(6)

Defendants are partially correct in pointing out that Exhibit 3 falls within Rule 803(6). While Rule 803(6) requires the record to be made by a "person with knowledge," this phrase "is not intended to imply that the party seeking to introduce the memorandum . . . must be able to produce, or even identify, the specific individual upon whose first-hand knowledge the memorandum . . . was based." Fed. R. Evid. 803(6) advisory committee's notes. Having shown that Exhibit 3 initially falls within Rule 803(6), the statements contained within the record are to be admitted unless "the party opposing the admission . . . establish[es] sufficient indicia of untrustworthiness." Shelton v. Consumer Prods. Safety Comm'n, 277 F.3d 998, 1010 (8th Cir. 2002).

Here, plaintiffs have met that burden. Rule 803(6) is premised on the understanding that statements in such records are deemed trustworthy on account of the reliability associated with the "systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation." Fed. R. Evid. 803(6) advisory committee's note. Plaintiffs correctly note that the source of the statement pertaining to plaintiffs' speed in Exhibit 3 has not been identified or explained in terms of how the declarant arrived at that statement. Without knowing the source of the statement, the trustworthiness normally associated with Rule 803(6) is absent.

The rationales of "systematic checking," "regularity and continuity which produce habits of precision," and "actual experience of business in relying upon them" are associated with the concept of routineness that is associated with business. Here, there is no evidence showing that the original statement at issue was given in a routine, business manner. As the notes to Rule 803(6) state, "[if] the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail." Fed. R. Evid. 803(6) advisory committee's notes.

The other rationale, a "duty to make an accurate record as part of a continuing job or occupation," would only be applicable if the statement originated from an employee charged with the duty to keep such records. Seeid.The source of the statement in Exhibit 3, however, is unknown. Thus, none of the rationales supporting the existence of Rule 803(6) are present with regard to the statement found in Exhibit 3. Plaintiffs have therefore shown that the statement in Exhibit 3 is untrustworthy because there is no evidence as to the source of the statement. Scheerer v. Hardee's Food Sys., Inc., 92 F.3d 702, 706 (8th Cir. 1996) ("In the absence of any evidence about the source of that information, we cannot test its reliability or trustworthiness."); Meder v. Everest & Jennings, Inc., 637 F.2d 1182, 1187 (8th Cir. 1981) (stating that where "there is a lack of evidence of the source of the testimony, it is inherently untrustworthy and must be kept out"). Thus, Rule 803(6) does not allow for admission of the statement.

Because the statement in Exhibit 3 is hearsay and does not fall within any exception to the hearsay rule, plaintiffs' motion for excluding Exhibit 3's statement, "35-45 mph," is granted.

2. That the Statement Pertaining to Plaintiffs' Speed in Exhibit 2, the Emergency Department Consultation Report, be Excluded

The same arguments discussed above with regard to Exhibit 3 were presented by both plaintiffs and defendants about Exhibit 2's statement relating to plaintiffs' speed. Exhibit 2 is a medical record of Rapid City Regional Hospital, which states in the History of Present Illness section as follows: "The patient is a 42-year-old male who was, by report, riding his motorcycle with his wife on the back when a semi-truck pulled out in front of them ...


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