United States District Court, D. Nebraska
SHALA L. STRICKER, Plaintiff,
JEAN L. TOWNSEND, Defendant.
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendant's objection
(filing 46) to the Magistrate Judge's order (filing 45)
denying her motion to extend the discovery deadline (filing
39), and the defendant's related motion in
limine (filing 50) asking for a determination on the
admissibility of certain evidence. As explained below, the
Court will grant the motion in limine, and deny the
objection as moot.
evidence at issue is medical: the defendant wants to ensure
the admissibility of medical records relating to two of the
plaintiff's doctor's visits, and has presented
corresponding affidavits from those doctors laying foundation
for the records. Seefiling 51 at 3-12. The defendant
argues that the records fall within the exception to the
hearsay rule for records of a regularly conducted activity
(i.e. the business records exception),
seeFed. R. Evid. 803(6), and that statements
contained within the records are also admissible as
statements made for medical diagnosis or treatment,
seeFed. R. Evid. 803(4). Filing 52 at 3.
physicians' affidavits lay appropriate foundation for
admission of the medical records as business records.
See Sosna v. Binnington, 321 F.3d 742, 747
(8th Cir. 2003); United States v. Azure, 801 F.2d
336, 342 (8th Cir. 1986). And the plaintiff doesn't argue
otherwise. Seefiling 55. Instead, the plaintiff
argues that the defendant's motion in limine
should be denied for reasons that, so far as the Court can
tell, have little to do with the medical records themselves.
Rather, the plaintiff says the foundational affidavits were
obtained by ex parte contact that, she claims,
violated the Health Insurance Portability and Accountability
Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936
(codified at scattered sections of 18 U.S.C., 26 U.S.C., and
42 U.S.C.). Filing 55 at 5-6. And, the plaintiff argues, the
defendant intends to raise an "inference" from the
medical records that she says is "misleading."
Filing 55 at 8-9.
argument is persuasive. To begin with, the plaintiff has
cited the Court to no authority suggesting that protected
health information obtained in violation of HIPAA should be
categorically excluded from evidence. Cf. United
States v. Crippen, 627 F.3d 1056, 1063-64 (8th Cir.
2010). And to be clear-the plaintiff's HIPAA argument
goes to the affidavits, not the underlying medical
records (access to which was consented to by the plaintiff).
The only "protected health information" contained
in the foundational affidavits is the fact of treatment-a
fact already reflected in the records themselves.
Seefiling 51 at 3-12; see alsofiling 55 at
Court is aware that sanctions may be imposed when evidence is
gathered unlawfully-for instance, by ex parte
contact with treating physicians, or in violation of HIPAA.
See Harlan v. Lewis, 982 F.2d 1255, 1257-65
(8th Cir. 1993); Crenshaw v. MONY Life Ins. Co., 318
F.Supp.2d 1015, 1020-31 (S.D. Cal. 2004); see also
Midwest Motor Sports v. Arctic Sales, Inc., 347 F.3d
693, 697-701 (8th Cir. 2003). Sanctions could include the
exclusion of evidence. Midwest Motor Sports, 347
F.3d at 697-98. But the Court is not persuaded that exclusion
of evidence as a sanction is warranted here, where no new
information was actually gathered.
the Court persuaded that otherwise-relevant evidence may be
excluded because the "inference" the defendant
purportedly seeks to raise is, according to the plaintiff,
"misleading." See filing 55 at 8. It's
the function of the jury to weigh contradictory evidence and
inferences. Tennant v. Peoria & P.U. Ry. Co.,
321 U.S. 29, 35 (1944). So, it's not the Court's
place to decide the proper inference to be drawn
from the evidence, then cherry-pick evidence supporting that
inference and exclude the rest as
the defendant has established foundation for the
admissibility of these medical records under the Federal
Rules of Evidence, and the plaintiff has provided no basis
under the Rules of Evidence to exclude them. So, the Court
will grant the defendant's motion in limine. As
the Court understands the parties' positions, the
granting of the motion in limine moots the
defendant's request to extend the deposition deadline,
and her objection to the Magistrate Judge's order denying
that request. Seefiling 53 at 22-25.
all of that said, counsel in this case are bright and
exceptionally talented. Let's put that talent to good use
and try this lawsuit in a reasonable, professional, and
defendant's motion in limine (filing 50) is
proffered medical records (filing 51 at 5-7, 10-12) are
admissible into evidence.
defendant's objection (filing 46) is overruled as moot.
defendant's motion for hearing ...