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Bockelman et al v. Bnsf Railway Company

October 28, 2011

BOCKELMAN ET AL PLAINTIFF
v.
BNSF RAILWAY COMPANY DEFENDANT



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED

Friday, 28 October, 2011 12:26:44 PM

Clerk, U.S. District Court, ILCD

ORDER

Now before the Court are two joint motions for ruling on objections contained in four deposition transcripts that will be read at trial in this matter. Those rulings follow.

RULES 703 AND 705

During his direct examinations of Dr. Wang and Dr. Baz (two of Bockelman's treating physicians), Plaintiff's counsel repeatedly had the doctors read verbatim into the record sections of various medical records and reports that had been authored not by them but by other physicians or providers. Defendant objected, each time, that the testimony was hearsay. Plaintiff responds that these records were business records, an exception to the hearsay rule.

Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Rule 705 provides:

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Rule 803(6) provides in pertinent part:

The following are not excluded by the hearsay rule, even thought the declarant is available as a witness:

(6) Records of Regularly Conducted Activity.--A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness.

The first issue to be addressed is whether these medical records are the type of business records excepted from the general rule that hearsay is not admissible. If they are, then this problem disappears because the general rule no longer would apply.

While plaintiff's counsel himself asserts that these records were made at the time of treatment by the doctor who treated Bockelman, and that it was the regular practice of the doctor to keep such records, no evidentiary support for this argument is presented. In order to conclude that records fall within this category, there must be testimony establishing the elements. See, U.S. v. Oros, 678 F.3d 703, 708 (7th Cir. 2009). Moreover, that testimony must be from someone with personal knowledge about the record-keeping of the provider who created the record. Fed.R.Evid. 602. Plaintiff has failed to direct the Court to any such evidence and has therefore failed to meet his burden of showing that the records fall within this exception to the hearsay rule. The content of these records is, in other words, inadmissible hearsay.

Of course, Fed.R.Evid. 703 allows an expert to rely on inadmissible information. That does not mean, however, that the inadmissible information becomes admissible. The Committee Notes on the 2000 amendment to Rule 703 state that the Rule includes "a presumption against disclosure to the jury of information used as the basis of an expert's opinion and not admissible for any substantive purpose when that information is offered by the proponent of the expert." Accordingly, in the general sense, it was improper for Plaintiff to have conducted the direct examination of these doctors in this manner.

Rule 703 provides that the presumption against admissibility may be overcome by a showing that the probative value of the records outweighs the prejudicial effect. Plaintiff has made an effort to establish that he has satisfied this balancing test. His effort is unavailing. As an example, Plaintiff had Dr. Wang read into evidence records relating to an MRI. Dr. Wang then based his opinion that Bockelman had suffered a stroke on the MRI records. According to Plaintiff, "Without such evidence, jurors are left to take the doctor's opinions on the doctor's work, without being made aware of any supporting basis for such opinions." That is simply not true. It is not necessary that the MRI record itself go to the jury for Dr. Wang to base his opinion on the MRI ...


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