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Walker v. Spina

United States District Court, D. New Mexico

February 1, 2019

SHIRLEY J. WALKER, Plaintiff,
v.
GREGORY J. SPINA; VALLEY EXPRESS, INC., and GREAT WEST CASUALTY COMPANY, Defendants.

          Shavon M. Ayala Ayala P.C.

          Anthony James Ayala Law Offices of Anthony James A. Ayala Albuquerque, New Mexico Attorneys for the Plaintiff

          Raul P. Sedillo Allison M. Beaulieu Butt Thornton & Baehr PC Albuquerque, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff Shirley Walker's request to submit her medical records as evidence at trial. See Draft Transcript of Hearing at 23:12-16 (taken January 28, 2019)(A. Ayala)(“Tr.”).[1] The Court does not have the medical records and bills, but it will clarify what medical records and bills it will permit. The Court concludes that, if Walker can establish that her medical records meet the requirements for rule 803(6) of the Federal Rules of Evidence -- “Records of a Regularly Conducted Activity, ” and rule 803(4) of the Federal Rules of Evidence - “Statement Made for Medical Diagnosis or Treatment, ” the medical records as they were recorded at or very near the time of Walker's appointments will be admissible to the extent that they record the treatment providers' observations, comments, and diagnoses, and Walker's recounting of her symptoms and injuries. If Walker can establish that her medical bills meet rule 803(6)' s requirements, the Court will admit the medical bills. The Court will not admit the medical records or medical bills under rule 807 of the Federal Rules of Evidence -- the “Residual Exception.”

         Any statements in Walker's medical records and medical bills that do not satisfy a hearsay exception are hearsay. Walker's medical records would almost certainly contain double hearsay. See also Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991)(“Double hearsay in the context of a business record exists when the record is prepared by an employee with information supplied by another person.”). The medical records and medical bills, which the treatment providers recorded outside court, and which Walker presumably will introduce for the truth of the matters asserted, are out-of-court statements made for the truths of the matters asserted. See Fed.R.Evid. 801 (“‘Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” (bold in original)); Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual § 803.02[6][d], at 803-179 (11th ed. 2015)(noting that, in Collins v. Kibort, 143 F.3d 331 (7th Cir. 1998), the Court of Appeals for the Seventh Circuit held that hospital bills were hearsay when their proponent did not satisfy the requirements for rule 803(6)'s exception). Similarly, any statements Walker made at a medical appointment and that the treatment providers record in the medical records, if Walker introduces the records for their truth, are out-of-court statements made for the truth of the matters asserted. See Fed.R.Evid. 801.

         The Court will admit an entire medical record if Walker's statements, and the treatment providers' observations, comments, and diagnoses, satisfy hearsay exceptions. See Fed.R.Evid. 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”); Wilson v. Zapata Off-Shore Co., 939 F.2d at 271 (“The outsider's statement must fall within another hearsay exception to be admissible because it does not have the presumption of accuracy that statements made during the regular course of business have.”). The Court discusses Walker's statements first. Rule 803(4) excepts from hearsay: “A statement that: (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 (bold in original). The Court will admit the statements that Walker made to her treatment providers “for . . . medical diagnosis or treatment.” Fed.R.Evid. 803(4)(B). Presumably, most of Walker's statements will meet this requirement. The Court will not admit statements about who or what caused Walker's injuries that are not “reasonably pertinent to” “medical diagnosis or treatment.” Fed.R.Evid. 803(4)(A). See United States v. King, 221 F.3d 1353, 2000 WL 1028228, at *6 (10th Cir. 2000)(unpublished table opinion)[2](“[A] victim's statement to a physician identifying the person responsible for the victim's injuries is not considered necessary for either accurate diagnosis or effective treatment, and is not admissible under Rule 803(4).” (citing United States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993)).

         The Court next considers the medical records and medical bills. Rule 803(6) of the Federal Rules of Evidence excepts from hearsay:

         A record of an act, event, condition, opinion, or diagnosis if:

(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;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6) (bold in original). Medical records are admissible if they satisfy rule 803(6)'s requirements. See Fed.R.Evid. 803 advisory committee's notes (explaining that “the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries” to “make clear” that “medical diagnoses, prognoses, and test results” are admissible); Saltzburg, Martin & Capra, supra § 803.02[7][b], at 803-51 (“The House and ultimately the House-Senate Conference Committee confined the exception to ‘business' records, but expansively defined the term business ‘to make it clear that the records of nonprofit institutions and associations like schools, churches and hospitals are admissible under this provision.'” ...


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