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Alexian Brothers Health Providers Association, Inc. v. Humana Health Plan

April 21, 2009

ALEXIAN BROTHERS HEALTH PROVIDERS ASSOCIATION, INC., ET AL., PLAINTIFFS-COUNTERDEFENDANTS,
v.
HUMANA HEALTH PLAN, INC., ET AL., DEFENDANTS-COUNTERPLAINTIFFS.



MEMORANDUM OPINION AND ORDER

Alexian Brothers Health Providers Association, Inc. ("Association"), Alexian Brothers Medical Center ("Medical Center") and St. Alexius Medical Center (collectively "Alexian," treated after this sentence as a singular noun for convenience) sued Humana Health Plan, Inc., Humana Insurance Company, Humana HealthChicago Inc. and Humana HealthChicago Insurance Company (collectively "Humana," also treated as a singular noun for the same reason)*fn1 for breach of contract. Humana in turn filed a Counterclaim, which it has superseded twice--first by an Amended Counterclaim and then by a Second Amended Counterclaim ("SACc"), each count of which also claims breach of contract.

Each side has supplemented the FPTO by raising some evidentiary objections that require in limine disposition. With full briefing having been provided, the motions can be addressed in turn.*fn2

Applicable Standards

District courts "have broad discretion in ruling on evidentiary questions during trial or before on motions in limine" (Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002)). Although the Federal Rules of Evidence ("Rules") do not explicitly authorize motions in limine, the practice of excluding evidence in limine "has developed pursuant to the district court's inherent authority to manage the course of trials" (Luce v. United States, 469 U.S. 38, 41 n. 4 (1984)).

Evidence should be excluded in limine only when it is clearly inadmissible on all potential grounds (Jimenez v. United States, No. 06 C 5943, 2008 WL 3849915, at *1 (N.D. Ill. Aug. 14)). If that "high standard" is not met, "evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." (Hawthorne Partners v. AT & T Techs., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993)). It is thus the movant's burden to establish that the evidence sought to be excluded is not admissible for any purpose (id.).

Amended Attachment F

Alexian seeks an order barring Humana from introducing any evidence relating to (1) "Amended Attachment F," (2) "any negotiations between the parties to amend the termination provisions of the IPA Agreement" and (3) "any amendment of the termination provisions of the IPA Agreement." Alexian and Humana agree that in October 2000 the parties executed a "formal amendment" ("Formal Amendment") to the IPA Agreement that had originally been executed in 1994. They also agree that Association sent Humana a November 1, 2000 letter describing Association's intent to terminate the IPA Agreement eight months later on June 30, 2001 ("Termination Letter").

Humana asserts that such a termination was without cause and was therefore contrary to the terms of Amended Attachment F, an amendment to the IPA Agreement that was allegedly included in the

Formal Amendment and that would have precluded termination without cause. But the parties disagree as to whether "Amended Attachment F" was actually included as part of the Formal Amendment or whether any other amendment was executed that would likewise have changed the termination provisions of the IPA Agreement.

Alexian argues that the evidence at issue here must be barred under Rule 901(a), which "as a condition precedent to admissibility" calls for "evidence sufficient to support a finding that the matter in question is what its proponent claims." Alexian asserts that no Humana representative who negotiated or signed the Formal Amendment recalls negotiating or having seen Amended Attachment F or any other amendment to the termination provisions of the IPA Agreement. Indeed, Alexian states that an Association representative who negotiated and signed the Formal Amendment will testify (1) that the parties did not negotiate over Amended Attachment F or any such similar instrument and (2) that he would not have signed the Formal Amendment had it contained any amendment to the termination provisions. According to Alexian, no Humana representative can provide competent testimony necessary to prove "that the matter in question is what [Humana] claims" it to be, so that any evidence of negotiation or agreement regarding amendment of the termination provisions, including Amended Attachment F, should be inadmissible under Rule 901(a).

That stance would put a greater burden on Humana than the Rule requires. Thanongsinh v. Bd. of Educ., 462 F.3d 762, 779 (7th Cir. 2006) has reconfirmed that "Rule 901 does not erect a particularly high hurdle" to overcome. Humana "need only make a prima facie showing that the exhibit is what the proponent claims it is" (Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 476 F. Supp. 2d 913, 921 (N.D. Ill. 2007), affirmed in part and vacated and remanded in part, all on other grounds, 529 F.3d 371 (7th Cir. 2008)). All that is required is that "sufficient evidence be adduced to allow the document to go to the trier of fact. All other factors will go [to] the weight or credibility" (LDI Corp. v. Investor Group Leasing Ltd., No. 95 C 5244, 1997 WL 733891, at *6 (N.D. Ill. Nov. 17)). Requiring such resolution at trial echoes the already-cited holdings in Jimenez and Hawthorne Partners.

Humana has made the requisite prima facie showing. It represents that through testimony and evidence of its customary practices and of the actual drafting of Amended Attachment F it intends to show that the signed Formal Amendment, including Amended Attachment F, properly made it into its contract file, supporting its contention that the parties incorporated Amended Attachment F into the Formal Amendment. It buttresses that submission with electronic-based evidence of authenticity.*fn3

Whether Amended Attachment F was indeed so incorporated is a question for another day, to be determined by this Court acting as trier of fact.*fn4 But in terms of threshold admissibility, it suffices to note Alexian's failure to show that it is "clearly inadmissible on all potential grounds." And that is true as well as to other evidence Alexian seeks to bar under Rule 901--including negotiations regarding, or amendments to, the termination provisions of the IPA Agreement.*fn5

Institutional Service Fund Deficit

Through SACc Count I, Humana seeks damages that it claims Association owes for its share of an Institutional Service Fund deficit that accrued from October 1, 1998 to May 31, 2000. But Alexian wishes to bar Humana from introducing "any evidence relating to the amount of any alleged Institutional Service Fund deficit." A. Mo.2 at 8-9 lists particular exhibits that Alexian would bar, including computer-generated spreadsheets, computer disks and letters that relate to the amount of the alleged deficit.

Alexian challenges the introduction of such evidence under Rule 901(b)(9), which permits authentication of a "process or system" by "evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result." Alexian also points to the requirements at Rule 803(6), the business records exception to the hearsay rule. According to Alexian, none of Humana's witnesses purports to have sufficient knowledge of the actual amount owed under the alleged deficit, so that Humana is not entitled to introduce any evidence on that score. Not so--Alexian's attempted reliance on Rule 901(b)(9) misses the mark, for under the circumstances presented here Humana has provided sufficient authentication of the disputed evidence.

Alexian attempts to load Rule 901 with more baggage than it was intended to carry. Rule 901(a) explains the general requirement that authentication or identification of evidence is a precondition to its admissibility, "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(b) then provides an instructive list of "examples of authentication or identification conforming with the requirements" of Rule 901(a)--examples that it says are provided "[b]y way of illustration only, and not by way of limitation." By definition, then, those examples do not exhaust the potential ways by which evidence can be shown to meet Rule 901(a)'s requirement. Thus Rule 901(b)(9), though it may be illustrative, provides no real constraint on the authentication of evidence.

In short, Alexian is simply wrong when it says "Humana is unable to satisfy the requirements of Rule 901(b)(9)" (A. Mo.2 at 2 (emphasis added)). No such "requirements" exist. Again all Rule 901(a) demands is "sufficient evidence" to find that the evidence in question "is what its proponent claims."

That does not of course obviate the need for Humana to establish that its evidence related to the calculation of a deficit amount is reliable. For that purpose this opinion turns to the business records exception to the hearsay rule embodied in Rule 803(6).

In that respect such cases as Collins v. Kibort, 143 F.3d 331, 337 (7th Cir. 1998)(internal quotation marks and brackets omitted) teach:

A proper foundation is established if the party attempting to admit the evidence demonstrates that the business records are kept in the course of regularly conducted business activity, and that it was the regular practice of that business activity to make records, as shown by the testimony of the custodian or otherwise qualified witness.

Rule 803(6) thus does not require that the witness establishing the foundation for such documents "be the person who prepared the record," nor does it require "that the witness have personal knowledge of the entries in the records" (id. at 337-38). Rather Rule 803(6) requires only "that the witness have knowledge of ...


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