Admissibility of DPH Reports.

Do you ever wonder about the admissibility of those damning reports compiled by the Department of Public Health or Mental Health that inculpate the care and treatment of the health care providers who harmed your client?  The official/public records exception to the hearsay rule generally allows admission of “[a] record of a primary fact, made by a public officer in the performance of an official duty” if admitted for the purpose of proving “the existence of that fact.”  Mass. G. Evid. § 803(8)(A).  “‘Primary fact’ is not a self-defining phrase, but at least it connotes facts which can be recorded without recourse to discretion and judgment.”  Adoption of Georgette, 27 Mass. App. Ct. 265, 274 (1989).  There is an exception, however, for records of investigations:  Record of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records, unless specifically authorized by statute.

Mass. G. Evid. § 803(8)(A).  See Commonwealth v. Nardi, 452 Mass. 379, 394 (2008) (Massachusetts does not permit admission of “evaluative reports” or “opinions or conclusions in government reports”); Herson v. New Boston Garden Corporation, 40 Mass. App. Ct. 779, 792-93 (1996) (“[A] record of a primary fact, made by a public officer in the performance of official duty” could be “prima facie evidence as to the existence of that fact, but . . . records of investigations and inquiries conducted . . . by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records”) (quoting Commonwealth v. Slavski, 245 Mass. 405, 417 (1923)) (emphasis in original).

In Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124 (2002), the Appeals Court affirmed the exclusion of a DPH investigatory report in its entirety.  Id. at 135.  In Mattoon, plaintiffs sued the City of Pittsfield in connection with a giardiasis outbreak allegedly caused by the city’s negligent chlorination of water from a certain reservoir.  Id. at 126-27.  Plaintiffs sought to introduce a memorandum from the “Division of Field Services Epidemiology Program Office” to the “Director, Centers for Disease Control,” which reported the results of an investigation ordered by the assistant commissioner of the DPH.  Id. at 134.  The document was a ten page memorandum consisting of a “Summary,” “Introduction,” “Background,” “Environmental Investigation,” “Discussion,” and “Recommendations.”  Id.  There was also seven pages of attachments, including tables, maps, and diagrams.  Id.  The memorandum was captioned:  “For Administrative Use,” “Limited Distribution,” and “Not for Publication.”  Id.  The Appeals Court affirmed exclusion of this report, relying on the aforementioned principle that “‘evaluative reports’ or opinions or conclusions in government reports” are not admissible into evidence.  Id. at 136.  See Herson, 40 Mass. App. Ct. at 793 (affirming exclusion of OSHA citations).

However, it may be possible to argue that portions of the DMH and DPH are admissible insofar as they contain a recitation of primary facts without disclosing conclusions or opinions.  In Adoption of Georgette, at issue was the admission of service plans, case reviews, foster care reviews, etc. as records of a public agency.  Adoption of Georgette, 27 Mass. App. Ct. at 271.  The court observed that a factor complicating the admission of these documents was that they were “laced with judgmental observations and opinion.”  Id. at 273.  The court concluded that it was appropriate to admit the documents with the impermissible content redacted:  “Practical considerations, we think, favor the receipt in evidence of the documents here in question, with, however, screening out . . . of expressions of opinion, evaluation, or judgment of the children or the resisting parent.”  Id. at 274.  The court also held that “[t]o the extent that the source of information in a document of the sort here in question is available for cross-examination, more leeway may be afforded material that smacks of opinion, evaluation, or judgment.”  Id.  See Care and Protection of Zita, 455 Mass. 272, 280 (2009) (DSS report admissible but must be “limited to a statement of facts, or redacted to exclude opinion, diagnosis or evaluation”); Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 354 (1995) (judge admitted Department of Public Utilities decision by redacting portions containing expressions of opinion, conclusions, or evaluation, reducing eight-page report to three sentences, which were read to the jury).

 


Use of Criminal History to Impeach Witness in Federal Court

             Rule 609 of the Federal Rules of Evidence provides for the admission of criminal history evidence to impeach a witness:

 (a)  General rule.  For the purpose of attacking the character for truthfulness of a witness,

 (1)  evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

 (2)  evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

 Fed. R. Evid. 609 (a). 

             “Courts used to be divided on how Rule 609 applied to civil witnesses.  In 1989, the Supreme Court addressed this ambiguity and held courts lacked discretion regarding whether to admit prior convictions against civil witnesses.  Green v. Bock Laundry Machine Co., 490 U.S. 504, 524 (1989).  However, the Green Court called for an amendment to the Rule, id., and Congress responded.  In 1990, Congress amended HN2609(a) to clarify that prior convictions of all witnesses other than criminal defendants, if punishable by death or imprisonment in excess of one year and not involving dishonesty or false statements, shall be admitted subject to Rule 403. See Fed. R. Evid. 609 advisory committee’s notes; Weinstein & Berger, 4 Weinstein’s Federal Evidence § 09.04[3] [a], § 09App.03[2].”  Miller v. Hoffman, No. 97-7987, 1999 U.S. Dist. LEXIS 9276 (E.D. Pa. June 21, 1999).  See Romanelli v. Suliene, 615 F.3d 847, 855 (7th Cir. 2010) (“Under Federal Rule of Evidence 609(a)(1), evidence of prior felony convictions is admissible in a civil case to impeach the credibility of the plaintiff, subject to Rule 403.”). 

             Rule 403 requires the district court to balance the probative value of the evidence against the risk of unfair prejudice to the plaintiff.  Even though evidence may be relevant, it may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Fed. R. Evid. 403 (“evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence”).  The party opposing admission of the evidence has the burden of demonstrating that the probative value of the conviction is substantially outweighed by the danger of unfair prejudice.  United States v. Tse, 375 F.3d 148, 164 (1st Cir. 2004). 

             A crime relating to a witness’s honesty may be admitted regardless of the term of imprisonment, if any.  Fed. R. Evid. 609(a)(2).  The district court does not have discretion to exclude evidence of such crimes.  United States v. Tracy, 36 F.3d 187, 192 (1sr Cir. 1994).  “By the phrase ‘dishonesty and false statement’ the Conference means crimes such as perjury or subornation or perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.”  Id. (quoting H.R. No. 93-1597).  This would include, for example, a conviction for “uttering a false prescription.”  Id.  By contrast, crimes relating to property do not clearly suggest lack of veracity.  See, e.g., United States v. Nguyen, 542 F.3d 275, 279 (1st Cir. 2008) (auto entry, which is a property crime, “does not generate much traction along the road toward probative value in connection with the question of its perpetrator’s veracity”).

             Generally, a qualifying conviction may be admitted if it occurred within 10 years of the proffered testimony:

 (b)  Time limit.  Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for the conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

 Fed. R. Evid. 609(b).  As indicated by the rule, a conviction more than ten years old may be admissible under particularly relevant circumstances.  A stale conviction, however, “must scale an appreciably higher hurdle” than one occurring within 10 years of the proffered evidence.  Nguyen, 542 F.3d at 280.  “The qualitative requirement for ‘specific facts and circumstances’ and the quantitative requirement that probative value be shown ‘substantially’ to outweigh prejudicial effect combine to make the barrier to admissibility of stale convictions under Rule 609(b) much higher than the barrier for the admissibility of recent convictions under Rule 609(a).”  Id. 

 


Opposition to Motion for Neuropsychological Evaluation Pursaunt to M.R.C.P. 35

 Pursuant to Mass. R. Civ. P. 35(a), the Court may, “order [a] party to submit to a physical or mental examination by a physician,” where the “mental and physical condition… of [the] party is in controversy….”  M.R.C.P. 35(a) (emphasis added)[1].  In this case, Dr. ______ is a neuropsychologist and not a “physician.”  A neuropsychologist is not “a doctor of medicine,” but is a specialist in “a science concerned with the integration of psychological observations on behavior and the mind with neurological observations on the brain and nervous system.”  The Merriam Webster Dictionary, available at http://www.merriam-webster.com/dictionary, search “neuropsychology.”  Therefore, the Court should deny the defendants’ motion for a Rule 35 neuropsychological examination based on the plain reading of the Rule.

Additionally, the defendants’ Motion for Neuropsychological Examination should be denied because the defendants lack good cause.  To establish good cause under Rule 35, the defendants must demonstrate an affirmative need for this examination and cannot rely merely on the fact that it is relevant.  Doe v. Senechal, 431 Mass. 78, 81-82 (2000) (“the requirements of rule 35 are not met… ‘by mere relevance to the case- but require an affirmative showing… that good cause exists for ordering each particular examination’”).  The defendants argue that good cause exists because PLAINTIFF cognitive deficits cannot be observed through other means.  The PLAINTIFF, however, has already provided the defendants with a detailed neuropsychological report explaining his cognitive injuries.  The plaintiff’s expert neuropsycholigist, a highly reputable neuropsychologist who practices at ________________, performed a neuropsychological evaluation of the PLAINTIFF on ______.  The neuropsychologist’s report provides a thorough evaluation of his cognitive deficits.  Id.  Moreover, the neuropsychologist opined in her report that because she conducted her evaluation two years after his collision, these injuries are permanent and unlikely to change.  Id.  Given that the defendant already has the information which another neuropsychological report would yield, a second examination is unnecessary.  Accordingly, the defendants have not made “an affirmative showing” that good cause for this examination exists.  Doe, 431 Mass. at 81-82.

Further, the defendants’ Rule 35 motion should be denied because it would be inequitable to allow the defendants to continue to conduct discovery more than three months after the discovery deadline has passed.  See Tracking Order attached hereto at Exhibit B.  The defendants have been aware of his cognitive injuries throughout the entirety of this lawsuit and even nine months before its commencement.  The PLAINTIF sent an initial insurance demand letter on ______ which included a detailed report by a neurologist at Mass General.  That report explained that the PLAINTIFF was suffering from cognitive deficits.  Then, the PLAINTIFF stated in the Complaint, filed on ______, that he suffered from “substantial cognitive deficits.”  See page 3 of Complaint attached hereto at Exhibit D.  Moreover, the PLAINTIFF explicitly stated throughout the discovery process that cognitive injury was part of his claim for recovery.  Specifically, in his answers to interrogatories, served on ______, he stated that as a result of the collision, “[he] suffered a traumatic brain injury, resulting in permanent cognitive, emotional and functional difficulties.”  See page 6 of Answers to Interrogatories.  Plaintiff’s counsel even volunteered at his deposition that a neuropsychologist had previously conducted a neuropsychological examination of the PLAINTIFF.  See pages 125-27 of the PLAINTIFF’s Deposition Transcript attached hereto at Exhibit F.  This lawsuit was filed on ______ and discovery closed _______.  See Tracking Order at Exhibit B.  Therefore, the defendant had ample time to request such an examination of the PLAINTIFF and elected not to do so within the time period allowed by the Court.  Instead, the defendants now bring this motion over three months after the deadline for conducting discovery has ended.  Accordingly, the Court should not allow such an untimely motion from the defendants. 

 The defendants’ argument that they were not provided with the neuropsycholgist’s report until the close of discovery on ____________ is inapposite.  Pursuant to Massachusetts Superior Court Standing Order 1-88, parties do not need to disclose experts until the Pre-Trial Conference.  At the time of this disclosure, no Pre-Trial Conference had been scheduled.  Nevertheless, the plaintiff chose to disclose the report earlier than required as part of a settlement demand submitted to defense counsel at the close of discovery.

 In the event that the Court allows the defendants’ motion, the plaintiffs respectfully request that the Court allow a representative from the plaintiffs’ office to be present during the neuropsychological evaluation and that the examination be videotaped.  The plaintiffs also request that the Court limit the examination to a period of time not greater than four hours in duration, if allowed to proceed.


[1] Rule 35 does not define the term “physician” nor have Massachusetts appellate courts provided any guidelines regarding who may conduct such an examination.  Although Massachusetts courts sometimes look to federal law interpreting the corresponding federal rule of civil procedure, Massachusetts courts decline to do so where there are “significant differences in content” between the cognate rules.  Van Christo Adver., Inc. v. M/A/-Com/LCS, 426 Mass. 410, 414 (1998), Rollins Envtl. Servs., Inc., 368 Mass. 174, 180 (1975).

Here, it is inappropriate to look to federal law to interpret Mass. R. Civ. P. 35(a) because Fed. R. Civ. P. 35(a) is significantly more expansive than its Massachusetts counterpart.  F.R.C.P. 35(a) (allowing examinations by any “suitably licensed or certified examiner”).  The Massachusetts Legislature has not expanded the range of individuals who may conduct a Rule 35 examination and it would be improper to presume that the Legislature intended for Rule 35(a) to be expanded along with the Federal Rule.  Accordingly, the Court should construe the term “physician” by applying its “plain and ordinary meaning” rather than look to federal law.  Id. at 700 (holding that statutes should be construed “according to the plain and ordinary meaning of [their] language”), Bynes v. School Comm. of Boston, 411 Mass. 264, 267 (1991) (stating, as an elementary principle, that if the language in a statute is plain, the court must enforce it according to its plain meaning).


Motion to Preclude Late Noticed Expert

MOTION TO PRECLUDE LATE NOTICED EXPERT

Introduction

The Plaintiff requests that the Court exclude the Defendants’ expert John Doe, M.D. (“Dr. Doe”) on grounds of late disclosure.  Discovery in this case terminated on January 9, 2006.  The Defendants disclosed Dr. Doe on August 30, 2007, less than three weeks before the start of trial, on September 17, 2007.  The Defendants’ inexcusably late expert disclosure violates Mass. R. Civ. P. 26 and has deprived the Plaintiff of the opportunity to pursue discovery of Dr. Doe’s qualifications, opinions and the basis for his opinions.  For this reason, any expert testimony by Dr. Doe should not be admitted at trial.  See Barren v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 519-20 (2003); Kearns v. Ellis, 18 Mass. App. Ct. 923, 924 (1984); Liacos, Massachusetts Evidence § 7.6, at 384 n.1 (7th ed. 1999).  Dr. Doe must be excluded for the additional reason that the Defendants did not seek the Court’s leave to add witnesses following the pre-trial conference pursuant to Superior Court Standing Order 1-88.

Relevant Procedural History

The Complaint in this matter was filed on November 20, 2003.  The Plaintiff served Interrogatories on the defendant on November 24, 2003.  (SeeInterrogatories, attached as Exhibit A.)  The discovery deadline elapsed on January 9, 2006.  (See Tracking Order, attached as Exhibit B.)  A pre-trial conference took place on February 15, 2007, at which time the Defendants did not disclose Dr. Doe.   Eventually, on August 30, 2007, less than three weeks before trial, the Plaintiff received the unsigned Supplemental Answers of the Defendant to Interrogatories Propounded by the Plaintiff.  (SeeSupplemental Answers, attached as Exhibits C.)  The Defendants for the first time disclosed their intention to offer the expert testimony of Dr. Doe.  (Id.)  Trial is set to begin on September 17, 2007.

Argument

The disclosure of expert witnesses is governed by Rule 26(e)(l)(B) of the Massachusetts Rules of Civil Procedure, which provides in pertinent part:

A party is under a duty seasonably to supplement his response with respect to any question directly addressed to … the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

In the context of Rule 26, “seasonably” means “soon enough to do the discovering party some good.”  Smith and Zobel, Evidence, Mass. Practice, Vol. 7 § 26.8, pp. 217-220, 2006 Pocket Part, p. 54-56.  The spirit of this rule relies upon an “honor system,” and imposes an obligation to supplement “promptly [and] not wait until the eve of trial.”  Id.

In instances where the disclosure of the expert is late, trial judges have “broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.”  Mattoon v. City of Pitsfield, 56 Mass. App. Ct. 124, 131-132 (2002) (quoting Nally v. Volkswagen of America, Inc., 405 Mass. 191, 197 (1989)).  More specifically, the Court has wide discretion in applying Rule 26 (e)(l)(B), and in determining whether to permit expert testimony where a party fails to give proper notice of the identity of the expert or subject matter of testimony. Amica Mut. Ins. Co., 66 Mass. App. Ct. 1109, 2006 WL 1473326, at *2 (2006) (affirming judge’s exclusion of expert’s causation testimony where “Amica had not mentioned the anticipated testimony in answers to interrogatories or in supplementary responses”); Barren v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 519-20 (2003) (excluding expert because of failure to adequately answer and supplement expert interrogatories on eve of trial); Tufankjian v. Rockland Trust Co., 57 Mass. App. Ct. 173, 180 n.15 (2003) (defendant’s “expert witnesses were precluded from testifying, as a sanction by the trial court, due to the bank’s failure to disclose the substance or grounds of the facts and opinions upon which they were expected to testify”); Cassano v. Gogos, 20 Mass. App. Ct. 348, 355 (1985) (excluding expert’s estimates of repair costs where “[t]he defendant had not mentioned those estimates in answers to interrogatories and in supplementary answers to interrogatories inquiring into the expert’s anticipated testimony”); Kearns v. Ellis, 18 Mass. App. Ct. 923, 924 (1984) (expert properly excluded given long pendency of case and disclosure of expert on eve of trial).

The Superior Court has repeatedly held that a party responding to expert interrogatories has “an affirmative obligation to secure sufficient information from retained experts intended to be called at trial so that counsel can furnish full and complete answers” to those interrogatories. Zirpolo v. Lyons, 1993 WL 818742, at *1 (Mass. Super. Ct. Jul. 2, 1993) (Lauriat, J.) (quoting Ferrara v. Balistreri & Di Maio, Inc., 105 F.R.D. 147, 150 (D. Mass. 1985)).  Accordingly, a party may not postpone supplementation indefinitely by delaying the retaining of experts, or by not obtaining the information from the experts necessary for answering the expert interrogatories.  Id.

In this case, there is no legitimate justification for the Defendants’ late disclosure of their expert.  This case has been in suit for over almost four years.  The Defendant has been on notice of the Plaintiff’s experts and their anticipated testimony since June 2006.  The Defendants never previously disclosed this expert’s testimony although they were aware of the September 17, 2007 trial date since last February.  Nevertheless, the defendant waited until the eleventh hour to spring a new expert upon the Plaintiff.  The Defendants attempted to veil this disclosure via a cover letter that indicates that these disclosures are “identical to the pre-trial memorandum disclosures” when that is patently untrue.  Dr. Doe was never previously disclosed.  His specialty, anesthesiology, is entirely different than those of the other experts previously disclosed by the Defendants in this case.

In the presumed absence of a nefarious intent to surprise the Plaintiff in order to place them at a significant disadvantage at trial, the only reason for this late disclosure of expert testimony is the defendant’s careless laxity and inattentiveness to the case.  The Superior Court should follow the reasoning of the federal court, which does not consider such excuses sufficient to justify late disclosure.  Rather, as stated by the First Circuit, the integrity of the litigation and trial process dictates adherence to the rules, including Rule 26.  See Thibeault v. Square D Co., 960 F.2d 239, 245 (1992) (stating that in the Rule 26(e) context, preclusion can be imposed in response to a party’s subversion of the trial process, even if the responsible party was guilty of laxity rather than bad faith.)

In this case, the Defendants disclosed Dr. Doe more than a year and a half after the close of discovery, more than six months after the pre-trial conference, and less than three weeks before the commencement of trial.  The Plaintiff has been deprived of the opportunity to pursue discovery of Dr. Doe’s qualifications, opinions and the basis for his opinions, and will be prejudiced accordingly.

Furthermore, the Defendants’ conduct runs afoul of the recently-adopted Superior Court rules.  If they have not already done so, parties are required to disclose the identities and opinions of expert witnesses in the pretrial memorandum.  Standing Order No. 1-88, Appendix A (6)(a).[1]  No party may reserve the right to add witnesses after the pre-trial conference without leave of the Court at the conference.  Standing Order No. 1-88, Appendix A (5).  In this case, Dr. Stevens was not disclosed until more than six months after the pre-trial conference without the Defendants’ seeking the Court’s leave to add additional witnesses.

Conclusion

For the foregoing reasons, the Plaintiff respectfully requests that the Court issue an order excluding the Defendants’ expert Dr. Doe from testifying at trial.


[1] Even disclosure in the pre-trial memorandum, however, does not preclude a motion to exclude an expert based on untimely disclosure.  Standing Order No. 1-88, Appendix A(6)(Note).  In this case, a motion to exclude would have been warranted given that the pretrial conference took place more than a year following the close of discovery.


Tips for Trying a Medical Malpractice Case

An article I wrote on tips for trying a medical malpractice case was published in the Lawyers Journal of the Massachusetts Bar Association.  It contains some useful case law on how to argue against the “custom and practice” defense and  some useful insights I obtained from speaking with a jury following one of our recent verdict.  I welcome other ideas.

http://www.massbar.org/publications/lawyers-journal/2010/august/medical-malpractice-plaintiff-verdict


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