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How to Exclude Self-Serving Reports by Testimonial Experts

So you’re at trial and your opponent wants to offer into evidence their expert’s written report… What do you do?  Is it admissible? The short answer is no. Expert’s reports are documents prepared in anticipation of litigation and do not have the inherent reliability of documents typically considered and admissible under exceptions to the hearsay rule such as Indiana Rules of Evidence 803 and 804.RULE 803.  Indiana Rule of Evidence 803(6) recognizes this danger.  IRE 803(6) states:

Records of a Regularly Conducted Activity. 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(9) or (10) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

(Emphasis Added).  Clearly, a report by a hired gun hardly provides circumstances indicative trustworthiness.  In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004), the Indiana Supreme Court observed:

[The] business records exception to the hearsay rule is “based on the fact that the circumstances of preparation assure the accuracy and reliability of the entries.”  Wells, 261 N.E.2d at 870.  As we have observed more recently, the reliability of business records stems in part from the fact that “the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, [and] from the precision engendered by the repetition…”  Stahl v. State, 484 N.E.2d 89, 92 (Ind. 1997); see also Advisory Committee’s Note to Fed. R. of Evid. 803(6) (observing that business records are made reliable by “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.”

Id. at 642-43.  The Court went on to explain that if a business does not rely on certain records for the performance of its functions then those records do not fall into the hearsay exception for records of regularly conducted business activity.  (See also Palmer v. Hoffman, 318 U.S. 109, 111 (1943), where the Court upheld the exclusion of a railroad engineer’s statement.  “[I]t is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business.  …[T]hese reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating not in railroading.“)

A retained expert’s report is not subject to review, audit, or internal checks for use in the expert’s business nor is it relied upon by the expert in the performance of business functions. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004). Instead it designed and created for use in litigation. IRE 803(6) requires that the method or circumstances of the preparation not indicate a lack of trustworthiness.

A report is not trustworthy when the Defendant hires an individual to prepare it if the primary motive for preparing the report is for litigation. Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000). “Litigants cannot evade the trustworthy requirement of Rule 803(6) by simply hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business.” Id.   See also, Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1090-91 (10th Cir. 2001); Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004).

These sentiments are echoed in Judge Robert Miller’s Courtroom Handbook on Indiana Evidence, in reference to Rule 803(6) he notes:

“Documents made in anticipation of litigation, including computer printouts are generally not admissible under Rule 803(6).” Certain Underwriters at Lloyds , London v. Sincovich, 232 F.3d 200, 205 (4th Cir. 2000); Bradley v. Phelps, 147 Ind. App. 349, 260 894, 898 (1970), cf. Baker v. Wagers, 472 N.E.2d 218, 222 (Ind. App. 1984).

So do not let your opponent get away with creating testimonial exhibits which will be taken back to the jury room and provide unfair emphasis on such testimony.  Reports simply aren’t admissible.

Medical Malpractice: When Common Sense Trumps Expert Knowledge

20120115-144530.jpgMedical malpractice cases are difficult and expensive to litigate.  However, sometimes experts are not required… Just common sense.

Indiana has long embraced the “common knowledge exception” to requirements of expert testimony in certain matters. A physician’s allegedly negligent act or omission can be so obvious that expert testimony is unnecessary. Wright v. Carter, 622 N.E.2d 170, 171 (Ind. 1993).

​In Indiana, cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body. Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen), Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip). Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery, see Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008).

This same sort of common sense approach is endorsed in other jurisdictions as well.Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953)(applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat); Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides not required); Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails);   Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence);  Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door);  German v. Nichopoulos577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth); Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001) (case in which the defendant dentist allegedly pulled the wrong tooth); LaCourse v. Flower Hosp., 6th Dist. Lucas No. L–02–1004, 2002-Ohio-3816, 2002 WL 1729897, ¶ 16;) McConkey v. State128 S.W.3d 656, 660 (Tenn. Ct. App. 2003); Murphy v. Schwartz739 S.W.2d 777, 778 (Tenn. Ct. App. 1986); Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered); Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell);  Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy) Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out); Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery); Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267, 683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy); Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc); Seavers v. Methodist Med. Ctr. of Oak Ridge9 S.W.3d 86, 92 (Tenn. 1999); Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom); Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care);  Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App.1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence).
​Medical malpractice litigation is expensive enough for a citizen to pursue. Common sense propositions should not require expert testimony. The underlying purpose of Indiana’s Rules of Evidence is set forth in Rule 102:

Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

The implementation of the “common knowledge exception” “eliminates unjustifiable expense” so that the “truth may be ascertained” and “proceedings justly determined.”  Trial Rule 1 of Indiana’s Rules of Trial Procedure echoes similar sentiments noting:

They shall be construed to secure the just, speedy and inexpensive determination of every action.

​The costs of medical malpractice cases are such that only a handful of cases are economically feasible to pursue, thereby closing the court house doors to most claims. Gary T. Schwartz, Medical Malpractice, Tort, Contract, and Managed Care, 1998 U. ILL. L. REV. 885, 895 (discussing how non-“large-damage” medical malpractice claims are impractical); Jeffrey J. Parker, Comment, Contingent Expert Witness Fees: Access and Legitimacy, 64 S. CAL. L. REV. 1363, 1369 (1991) (“[F]ees to employ necessary expert witnesses constitute substantial litigation expenses.”).

So remember that the “common knowledge exception” can be uncommonly economical and effective.

Motion in Limine: An Effective Pretrial Tool and Weapon (Part 1)

I plan on writing a series of posts dealing with motions in limine and the topics you may wish to cover. A Motion in Limine is a motion made for a protective order against prejudicial questions and statements, which if heard by the finder of fact, would prevent a fair and impartial trial.  The focal issue in determining whether a motion in limine should be granted is whether the prejudice in allowing admission of the proffered evidence outweighs any relevance the evidence may have.  Thus, the test involves weighing the relevance of the evidence against the possibility that the jury will consider the evidence improperly or be inflamed or confused by such evidence.  The balancing test goes beyond mere relevancy.  As stated by Professor McCormick:

But relevance is not always enough.  There may remain the question, is its value worth what it costs?  There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value.  In order of their importance, they are these:  First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility, or sympathy.  Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues.  Evidence 2d, (1972) 438-439.

 A motion in limine is also effective in smoking out bad evidence you are unaware of as well.  Once you file such a motion in limine, the opposing party will have to disgorge their plans in response to your motion.  Here is a list of some potential topics you should consider.

         Prior Condition of Plaintiff.

You may want to precluded the defense from making any reference to a client’s prior physical or mental health unless such condition is causally connected or related to the injuries that plaintiff is claiming. To meet the threshold of relevance, and thus admissibility, the defendant must come forward with probative and competent medical testimony in support of the proposition that plaintiff’s pre-existing conditions or injuries are the cause of plaintiff’s symptoms and problems alleged in the lawsuit.  When the issue of a causal connection is not normally within the life experience and understanding of the jurors, then the testimony of an expert witness may be required depending on your jurisdiction’s law.  The mere existence of a pre-existing condition, without more, may be insufficient to make the evidence admissible as relevant to the “cause” of a plaintiff’s injuries.  When a defendant chooses to allege that a plaintiff’s symptoms and injuries are caused by a pre-existing condition (for the purpose of negating causation of plaintiff’s current injuries), then it is the defendant’s burden to satisfy the requirements of relevance and admissibility.  This analysis was cogently explained by the Court in Voykin v. Estate of DeBoer, 733 N.E.2d 1275 (Ill. 2000):

In Caley, the Defendant sought to question the plaintiff regarding the accidents occurring before and after the accident at issue.  The defendant’s theory was that these accidents were the cause of plaintiff’s injuries.  The defendant contended that, because the plaintiff always bears the burden of proving proximate cause, the defendant did not need to demonstrate a connection between the other accidents and the plaintiff’s injuries.  The appellate court rejected the defendant’s argument.  It explained that although the burden never shifts between parties, the “burden of going forward with the evidence may shift from party to party.”  Caley v. Manicke, 29 Ill. App. 2d 323, 327 (1961).  The court further reasoned that although the defendant bore the burden of demonstrating the connection between the other accidents and the plaintiff’s injuries, that did not mean that the burden of proof shifted to the defendant.  Caley, 29 Ill. App. 2d at 327, the court explained:

Proximate cause was part of plaintiff’s case.  It was as indispensable as the elements of defendant’s negligence, plaintiff’s freedom there from and damage.  Without it, plaintiff’s action would have failed.  But, when he has borne the burden of proof and established the material elements necessary to make out a case, it is the defendant’s right, but certainly not his duty, to put on his defense.  This is not shifting the burden of proof.  One cannot say to have a burden if one may pick it up or not as he pleases.  Obviously, if there is evidence negative of causation, a defendant would show it, but the law in according him his privilege of going forward in no way shifts to him the burden of proof as the law knows that phrase.

To evaluate testimony that sometime before a rear-end accident in question plaintiff had been bumped, bending a trunk handle, and that after the accident and before onset of a more serious lower back complaint, his front headlight was struck, to the status of contributing, intervening causes, suitable for submission to triers of fact, is to misread standards of relevancy required as preconditions of admissibility.  That this devolves on the defendant to the same extent as on the plaintiff initially in presenting his case, which it does, does not shift the burden of proof, or indeed have anything to do with it.  It is a question of relevancy, pure and simple.  Caley, Id. at 330.

The question remains, however, whether expert testimony is necessary to determine whether a prior injury is relevant to the current injury.  In a similar context, namely, medical malpractices cases, this court has recognized that expert testimony is normally necessary “because jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of the physician… [citations omitted].

We believe that similar considerations must govern here.  Without question, the human body is complex… In most cases the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson.  Because of this complexity, we do not believe that, in the normal circumstances, a lay juror can effectively or accurately assess the relationship between a prior injury and a current injury without expert assistance.  Consequently, we conclude that if the defendant wishes to introduce evidence that the Plaintiff has suffered a prior injury, whether to the “same part of the body” or not, the defendant must introduce expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence.  Voykin v. Estate of DeBoer, Id. At 56, 58-59.

The foregoing rationale for requiring expert medical testimony to support the relevance of a pre or post injury medical history was recently adopted in Muncie Indiana Transit Authority v. Smith, 743 N.E.2d 1214 (Ind. App. 2001):

According to the Arizona Court of Appeals, the “obvious reason for this rule is that lay persons are no better able to testify concerning the functioning of the human body than they are able to treat its infirmities.”  [citations omitted].  The Court further explained that although “most lay person have opinions and theories of their own as to how the human body functions, our courts have decided that, in order to recover compensation, a standard of expert evidence on the subject is required where the injury is not apparent to the layman.” [citations omitted].  When the cause of the injury is not one, which is apparent to a layperson, and multiple factors may have contributed to causation, expert evidence on the subject is required.

Absent competent and relevant evidence of a causal connection between a pre-existing condition and the injuries that plaintiff is alleging in this lawsuit, such evidence of any pre-existing condition may be inadmissible.

        Claims of Sudden Emergency.

In a defendant may lists as an affirmative defense a claim of sudden emergency. In my jurisdiction, the case law is clear that for the jury to be given the instructions defining the sudden emergency defense three factors must be shown in the evidence.

A.        The actor must not have created or brought about the emergency through her own negligence.

B.        The danger or peril confronting the actor must appear to be so imminent as to leave no time for deliberations.

C.        The actor’s apprehension of the peril must be reasonable.

Barnard v. Himes, 719 N.E. 2d at 862 (Ind. Ct. App. 1999).

If there is no factual basis for applying the sudden emergency defense, then allowing a defendant to suggest such defense would only confuse and mislead the jury. See Rule of Evidence 403 of the Federal Rules.

        Red- Herring Claims of Other Causes of a Plaintiff’s Injuries.

Counsel may be precluded from making any argument or articulating any theories as to the cause of plaintiff’s injuries unless defense counsel’s arguments and theories are in fact supported by competent expert medical testimony.  In the case of  Kristoff v. Glasson, 778 N.E. 2d 465 (Ind. App. 2002), the Indiana Court of Appeals held that defense counsel may not argue pre-existing injuries, failure to mitigate and subsequent injuries unless and until their arguments and theories are supported by competent medical testimony. Id. at 473.  If you know there is no evidence to support a bogus theory you may be well served in filing such a motion in limine.  It could also force the defense to disclose evidence you may have overlooked or which was not produced in discovery.

        Employment of Counsel.

The time or circumstances under which plaintiff employed counsel, including, the fee arrangement between the plaintiff and counsel is irrelevant unless there is an attorney fee claim by contract or statute.  The purpose of this evidence is to prejudice the jury and to portray to the jury that plaintiff is “litigious.”  Any such evidence is immaterial to the issues that will be decided by the jury and potentially very prejudicial.

        Unnecessary Medical Treatment.

You should preclude or prohibit the defense counsel from alleging or arguing that plaintiff’s accident-related medical expenses are unnecessary or unreasonable.  All damages directly attributable to the wrong are recoverable by the victim.  The law also typically allows an injured plaintiff to recover reasonable costs of necessary medical treatment.  Dee v. Becker, 636 N.E. 2d 176, 178 (Ind. App. 1994).  The Indiana Supreme Court has held that the phrase “reasonable and necessary,” as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another… . The Indiana Supreme Court observed and found that a defendant may not dispute the medical judgment of the plaintiff’s medical providers in choosing to administer the questioned studies and treatment. Sibbing v. Cave, 922 N.E.2d 594, 599-600 (Ind. 2010)

Rule 413 of Evidence as adopted in Indiana eliminated the confusion regarding the evidence that is required to satisfy the “reasonableness” requirement.  The very first sentence of IRE 413 asserts flatly that medical statements occasioned by an injury are admissible.  Rule 413 provides that the bills shall constitute prima facie evidence that the charges are reasonable and medical bills come into evidence without any proof of reasonableness or necessity.  In Indiana, personal injury plaintiffs no longer have to prove that they personally paid the medical bills or produce an expert as to the reasonableness of the charge, just necessity when it is contested. Normally , competent medical testimony is necessary to enable the jury to determine which of a plaintiff’s damages and medical expenses are related to a trauma and which are not.  Sikora v. Fromm, 887, N.E.2d 499 (Ind. App. 2002).  In Sikora, the Court of Appeals stated that expenditures for various medical treatments, drugs, and tests, like MRI’s, cannot be properly evaluated by the jury without a medical explanation that they were causally connected to the fall.

I will address additional areas to consider for a motion in limine in later posts.

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