Francois v. General Health System

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA DAMIAN FRANCOIS C.A. NO.: 3:17-CV-522-JWD-RLB VERSUS

GENERAL HEATLH SYSTEM RULING ON OBJECTIONS TO MEDICAL RECORD EXHIBITS This matter comes before the Court on a portion of Plaintiff’s Consolidated Motion in Limine (“Motion”) seeking to exclude the “Introduction of Medical Records from Other Providers” brought by plaintiff Damian Francois (“Francois” or “Plaintiff”). (Doc. 128-1 at 1-6.) The motion was opposed by defendant General Health System, d/b/a Baton Rouge General Medical Center (“BRG” or “Defendant”). (Doc. 146.) Supplemental submissions were made by the Defendant (Docs. 168 and 191) and Plaintiff (Doc. 184). The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, the Motion is granted in part, denied in part and deferred in

part. PROCEDURAL BACKGROUND In neither the Plaintiff’s motion nor Defendant’s original opposition did the parties supply the actual documents at issue. In his motion, Plaintiff simply referred to the medical records as they were listed by Defendant in the Pretrial Order. (Doc. 128-1 at 1-2.) In the Pretrial Order, Defendant listed certified copies of the records of 10 health care providers or facilities. (Doc. 123 at 23-25, Exhibits 24-34.) In his Motion, Plaintiff complained of the “thousands of pages of medical records referenced” in those exhibits which included “dozens of medical appointments, scores of medical professionals, and a wide array of facilities.” (Doc. 128 at 2.) In its opposition, Defendant represented that “Defendant intends to offer at trial the certified records of the following health care providers for treatment of Plaintiff, Damian Francois”, thereafter listing, without limitation or page numbers, the records of nine providers or facilities. (Doc. 146 at 1-2.) 1

In a companion case, Ward v. Baton Rouge General Physicians, Inc., No. 18-451, Doc. 90, the Court ruled on an identical motion as follows: The Court finds that the records cannot come into evidence in total; and if there are specific parts of the records the Defendant would like to introduce, the Defendant shall submit a chart to the Court . . . which contains the following: a. Specific entries sought to be introduced; b. Where the entry can be found in the record; c. The relevance of the entry; d. Whether or not it is hearsay, and if not, why not, and if so, what exception to the hearsay rule Defendant intends to apply; e. Whether the introduction would be for impeachment; f. If the entry is admissible, how does the entry qualify for admission under Federal Rule of Evidence 701. The Court adopted the order in Ward and made it applicable in the present case. (Doc. 162.) In response to the Court’s order, Defendant filed a Memorandum in Support of Defendant’s Medical Record Exhibits to be Offered at Trial (Doc. 168) which contains the ordered chart. (Doc. 168 at 9-28.) The actual exhibits were filed under seal. (Doc. 167-1 at 1-60, Docs. 199 and 199-1, and Docs. 201-2 and 201-3.)2 Francois filed Plaintiff’s Response to

1 In its memorandum, Defendant represents that “BRG’s proposed exhibits D24-34 are and always have been excerpted medical records.” (Doc. 168 at 1, n.1, emphasis in original.) This statement is belied by BRG’s listing of these exhibits in the Pretrial Order. (Doc. 123.) Two exhibits (26 and 28) have well over 1000 pages each. Five exhibits have no page numbers listed, merely stating that “Defense counsel determining specific range of documents,” (25, 27, 30 and 34) and for two exhibits, the records had not yet been received by defense counsel when the Pretrial Order was submitted (32 and 33). (Doc. 123 at 23-25.) In its opposition, Defendant stated “Defendant intends to offer at trial the certified records of the following providers…” (Doc. 146 at 1.) The current excerpted medical records which are the subject of the present controversy total 64 pages. (Doc. 167-1 at 1-60; Docs. 199 and 199-1 and Docs 201-2 and 201-3.) 2 During its review of the records, the Court found that certain pages listed in the chart were not in the record. The Court requested that Defendant supplement the record with these pages and Defendant complied. (Docs. 199, 199-1, 201-2 and 201-3.) Defendant’s Memorandum Regarding Medical Records Exhibits (Doc. 184) which attaches a copy of Defendant’s chart but adds a column where Plaintiff’s responses to each exhibit are summarized. (Doc. 184-1 at 1-37.) Defendant filed a Memorandum in Reply to Plaintiff’s Arguments in Opposition to Defendant (sic) Medical Record Exhibits (Doc. 191).

As narrowed, there are approximately 64 pages of medical records at issue, grouped in 58 blocks on Defendant’s chart. (Doc. 168 at 9-28).3 Each block summarizes the excerpt which Defendant wants to introduce, (by Defendant’s exhibit number and Bates page number), along with Defendant’s contention as to its relevance, and its rationale for how it survives Plaintiff’s motion. (Id.) Of the 58 excerpts, Plaintiff fully waived his objection to 12 of those (numbers 1, 2, 6, 12, 17, 19, 21, 34, 36, 39, 40 and 55), leaving 46 at issue. The Court has carefully considered the proposed exhibits, the arguments of the parties and the applicable law and, for the reasons which follow, sustains in part, overrules in part and defers in part Plaintiff’s Motion. The Court provides a chart at the end of this decision stating its ruling as to each of the objections. The Court has numbered each excerpt block (1-58) and, for

sake of simplicity, will refer in its discussion and rulings to these record excerpts by the excerpt numbers given in the Court’s chart. FACTUAL BACKGROUND Plaintiff alleges that he is a “profoundly deaf, illiterate, and language-deprived individual” (Doc. 77 at 1) who suffered a gunshot wound in April 2017 which rendered him a paraplegic. (Doc. 48-1 at 5.) He thereafter sought and “received extensive medical care at the

3 Three pages (Docs. 167-1 at 58-60; Bates Numbers 8217, 8218 and 8228) are attached to Defendant’s submission but are not on its chart. Because these documents are not on the Defendant’s chart with an explanation of their relevance and why they are admissible in the face of Plaintiff’s challenge, they will not be considered by the Court. There were certain documents listed on the chart which were not originally submitted but were submitted in supplemental filings (Docs. 199 and 199-1 and Docs. 201-2 and 201-3). These are considered. Baton Rouge General wound care clinic” (“BRGWC”) from June 14, 2017 until September 8, 2017. (Doc 77 at 1.) According to Plaintiff, he “communicates primarily in American Sign Language (‘ASL’) and has a very limited understanding of English.” (Id.) Plaintiff sues Defendant as the owner and

operator of the BRGWC (Doc. 21 at 2-3) charging that “Defendant failed to provide him with adequate auxiliary communication aids and services he needs to communicate effectively in a medical setting” (id. at 2) in violation of Title III of the Americans with Disabilities Act, 42 U.S.C § 12181 (“ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“RA”); and Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116. (Id. at 2-3.) Plaintiff asks for injunctive relief and damages. SUMMARY OF ARGUMENTS OF THE PARTIES In his original motion (Doc. 128-1 at 1-6), Plaintiff argued that his medical records from facilities other than Defendant’s are irrelevant in that they contain complaints, examinations, diagnostic workups and treatments for complaints, injuries and illnesses which are not at issue

here. The issue, insists Plaintiff, is what happened (or didn’t happen) at Defendant’s facility. He reiterates the relevance argument in his response. (Doc. 184 at 8.) Plaintiff also argues that certain entries in the records are independently irrelevant to any conceivable issue in the case. (Doc 184 at 1, referring to the entry regarding Plaintiff being hit in the nose by his uncle and a GoFundMe campaign started on Plaintiff’s behalf). Second, Plaintiff maintains that, even if relevant, the documents contain hearsay, and in some instances, multiple levels of hearsay, and none of the exceptions to the hearsay rule posited by Defendant (namely, Rules 803(4) and 803(6)) apply. (Id. at 4-6.) Third, in the alternative, even if minimally relevant and either not hearsay or subject to an exception to the hearsay rule, the probative value of the evidence is far outweighed by the prejudicial potential for confusing and misleading the jury. In addition, considering this evidence will cause an undue delay in the trial by having to try multiple mini-trials on side issues raised by the records. (Id. at 8-9; 184-1 at 1- 37.) The excerpts dealing with Plaintiff’s ability to communicate without an interpreter are

untrustworthy and misleading in the absence of a live witness who can be challenged on cross examination. (Doc. 184-1 at 1-37.) Fourth, Plaintiff argues that, in some instances, the entries constitute opinion testimony and are inadmissible since no Fed. R. Civ. Pro. 26 report was produced by Defendant, and any lay opinions given in these excerpts would be inadmissible since a live witness is not going to testify at trial as to these opinions and be able to provide the foundational testimony required under Fed. R. Evid. 701. (Id.) Further, argues Plaintiff, he will be severely prejudiced by not being able to cross examine those who authored the excerpts. In compliance with the Court’s order, Defendant provided a chart specifying by exhibit and page number the proposed excerpt, its relevance, and the basis for its admission in the face

of Plaintiff’s hearsay and other objections. (Doc. 168 at 9-28.) Defendant responds generally to Plaintiff’s relevance challenge by arguing that the records are highly relevant to rebut the main contentions of Plaintiff’s case, namely, that “(1) Mr. Francois’s ‘preferred’ mode of communication at medical appointments is via an in-person interpreter; (2) Mr. Francois is essentially illiterate or has very little literacy as it pertains to written English; [and] (3) Mr. Francois suffered worsening pressure wounds as a result of ineffective communication provided to him (using VRI instead of in person interpreters) during admissions to BRG and BRG Wound Care.” (Doc. 168 at 6, emphasis in original.) In addition, these entries rebut and impeach the contention of Plaintiff’s expert “Dr. Judy Shepherd-Kegl, that in-person interpreters are the only effective communication (sic) for him in a medical setting.” (Id., italics in original; see also pages 6-9.) Furthermore, argues Defendant, Plaintiff contends his pressure sores and decubitus ulcers were made worse as a result of Defendant’s failure to provide a sign language interpreter which

prevented him from getting “information as to how to prevent the bedsores from growing or how to avoid contracting new bedsores.” (Id. at 8, quoting from ¶ 33 of Plaintiff’s Complaint.) Some of the records belie this contention in various ways, e.g., by showing that he was properly instructed on wound care with an interpreter present and was nonetheless non-compliant in following instructions on how to care for his wounds and that he simply disliked the debridement therapy. (Id. at 8-9; see also reply brief, Doc. 191 at 4-5.) As to the alleged hearsay objection raised by Plaintiff, Defendant responds first, because the medical records are certified in compliance with La. R.S. 13:3714(A), they are admissible without regard to whether they contain hearsay. (Doc. 168 at 2-4.) In addition, argues Defendant, the records are either not hearsay as set out in Fed. R. Evid. 801(d)(2) (id. at 5-6) and/or fit into

the exceptions set out Fed. R. Evid. 803(4) and/or 803(6) (Id. at 4, 9-28). In its reply and in its chart, Defendant also argues that the records are not offered for the truth of the statements contained therein but rather are for the purpose of showing that “Plaintiff had NOTICE of information bearing on chronic prevention, notice provided via in-person interpreter…” (Doc. 191 at 2., emphasis in original), and to show not the truth of the history taken, but that a history could be taken from Plaintiff in the absence of an in-person interpreter (id. at 3-4). In response to Plaintiff’s objection regarding expert or lay opinion testimony, Defendant suggests that a limiting instruction should suffice to allay any prejudice to Plaintiff. (Id. at 6.) Finally, in argument made in its chart, Defendant maintains that much of the objected to material should be allowed to impeach anticipated testimony of Plaintiff’s lay and expert witnesses such as, for example, that Plaintiff preferred to have an in-person interpreter during in-patient hospitalizations. (Doc. 168 at 9, et seq.) STANDARD

As this Court has previously explained: Generally, motions in limine are disfavored. See, e.g., United States v. Dish Network, L.L.C., No. 09-3073, 2015 U.S. Dist. LEXIS 17055, at *5 (C.D. Ill. Nov. 30, 2015); United States v. Amor, No. 14-20750-CR-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 144291, at *3, 2015 WL 6438479, at *1 (S.D. Fla. Oct. 23, 2015); Mahmoud v. Rambosk, No. 2:13-cv-63-FtM-38DNF, 2014 U.S. Dist. LEXIS 98700, at *3, 2014 WL 3593763, at *1 (M.D. Fla. July 21, 2014); Mi-Jack Prods. v. Intl. Union of Operating Engrs., Loc. 150, No. 94 C 6676, 1995 U.S. Dist. LEXIS 16930, 1995 WL 680214 at *1 (N.D. Ill. Nov. 14, 1995). Instead, “[b]y deferring evidentiary rulings until trial, courts can properly resolve questions of foundation, relevancy, and prejudice.” Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 3293, 2005 U.S. Dist. LEXIS 4502, at *3, 2005 WL 289967, at *1 (N. D. Ill. 2005). Such a result aligns with the Rules' broad tenor: “In fairness to the parties and their ability to put on their case, a court should exclude evidence in limine only when it is clearly inadmissible on all potential ground.” United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) (emphasis added); cf. Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 463, 83 L.Ed. 2d 443 (1984) (emphasizing how a “court must know the precise nature of ... testimony” in performing the balancing required under Rule 609(a)(1)). Tucker Mgmt., LLC v. United Nat'l Ins. Co., No. 13-CV-626-JWD-RLB, 2016 WL 8261722, at *2 (M.D. La. July 8, 2016) Nonetheless, the parties have asked the Court to rule in advance of trial on Plaintiff’s objections to certain parts of his medical records which Defendant intends to introduce. To the extent the Court is able to do so, it will rule on those objections. Where it is impossible to do so, it will defer the ruling until time of trial. ANALYSIS Defendant has broken the contested exhibits into 58 blocks on its chart.4 As mentioned above, Plaintiff has withdrawn his objection to 12 of these (1, 2, 6, 12, 17, 19, 21, 34, 36, 39, 40 and 55), leaving 46 contested excerpts. The Court provides a ruling herein in chart form on each

of the 46 contested excerpts at issue. However, for context and in support and explanation of the Court’s rulings, the Court makes these general observations. a. Relevance Plaintiff spends very little of his argument on the issue of relevance, concentrating on his other arguments. (Doc. 184 at 8.) “Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. “Relevant evidence is admissible unless any of the following provide otherwise: the United States Constitution; a federal statute; [the Federal Rules of Evidence]; or other rules prescribed by the Supreme Court.” Fed. R. Evid. 402. “Irrelevant evidence is not admissible.” Id. Tingle v. Hebert, No. CV 15-626-JWD-EWD, 2018 WL 2287028, at *5 (M.D. La. Apr. 23, 2018). In determining relevance, the Court should view the issue of relevance broadly. Evidence need not be conclusive of a material issue in order to be admitted. Fed. R. Evid. 401 defines relevant evidence as any evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See, e. g., United States v. Ashley, 555 F.2d 462 (5th Cir. 1977); United States v. Carter, 173 U.S.App.D.C. 54, 522 F.2d 666 (1975). Generally, all relevant evidence is admissible, under Fed. R. Evid. 402, unless “ 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 presentations of cumulative evidence.” Fed. R. Evid. 403. Under the Federal Rules of Evidence, the trial judge has broad discretion to admit evidence, and the exercise

4 The excerpts being offered by Defendant are set out, pursuant to the Court’s order, in Defendant’s chart. The Defendant also provided the documents from which the excerpts were drawn. (Docs. 167-1, 199, 199-1 and 201-2 and 201-3.) As to each excerpt where the Court denies Plaintiff’s motion, it is only the excerpts, and not the entire document, which will be allowed into evidence. of that discretion will not be reversed unless a clear abuse of discretion is shown. See, e. g., United States v. Grimm, 568 F.2d 1136 (5th Cir. 1978); United States v. Bibbs, 564 F.2d 1165 (5th Cir. 1977). United States v. Madera, 574 F.2d 1320, 1322 (5th Cir. 1978) To the extent that Defendant’s proposed excerpts inform the issues outlined by Defendant as summarized above and briefed at Doc. 168 at 6-9, the Court finds that they are, for the most part, relevant. At the heart of Plaintiff’s case on liability is the effectiveness of communication between Plaintiff and Defendant’s employees. A second issue is whether or not the technique(s) used by Defendant to communicate with Francois played a role in the aggravation of his wounds and pressure sores. The medical record entries submitted by Defendant go, for the most part, in one way or the other, to these two issues. As to the first issue, Defendant insists that many of these entries are “not offered to prove effectiveness or quality of communication with Plaintiff” (Doc. 168 at 10). Rather, they are offered for other purposes, such as to show that Plaintiff was using a dry-erase board rather than an in-person interpreter while an in-patient in the hospital (id. at 9); that he used written questions to communicate (id. at 10); and to impeach his testimony that he “prefers” in-person interpreters. As to the second issue, these excerpts address the cause of Plaintiff’s damages by

showing, inter alia, the status of his wounds at various points in time, instructions given to him and family members regarding proper home care for his wounds, and the lack of patient compliance with those instructions. (Id. at 11-29.) These entries address the issue of causation, i.e. whether the aggravation of Plaintiff’s wound were caused by Defendant’s failure to adequately communicate with Plaintiff or, on the other hand, by Plaintiff’s failure to follow wound care instructions given to him by the providers, which instructions are referenced in the records. While there may be other reasons to exclude some of these entries from evidence, there is no doubt that the excerpts addressing these general issues are relevant. Unless ruled irrelevant in its Chart ruling, the Court finds that the excerpts are relevant. b. Hearsay or not – Rule 801(d)(2) and 801(c)(2) Defendant argues that many of the excerpts (items 3, 4, 7, 8, 10, 11, 13, 14, 15, 18, 22, 24, 25, 27, 28, 29, 30, 33, 44, 47, 50, 54, and 58)5 are not hearsay at all under Rule 801(d)(2)

because the statements in question are “offered against an opposing party and (A) [were] made by the party in an individual or representative capacity” or “(C) [were] made by a person authorized to make a statement on the subject” or (D) [were] made by a party’s agent . . . on a matter within the scope of that relationship and while it existed.” (Doc. 168 at 9-28.) While not noted in its chart, Defendant also argues in its reply that some of these entries are not being offered for the truth of the statements contained in them but for another purpose (e.g., to give “notice”) and hence do not meet the definition of hearsay under Rule 801(c)(2). (Doc. 191 at 1- 4.) With respect to 801(d)(2), Defendant ignores altogether that the statement made by the

party (i.e. Plaintiff or his alleged representative) is itself recounted by another out of court declarant (the record maker) and is hearsay. Before the Court can even reach the statement allegedly made by the party, Defendant must show that the record entry itself is not hearsay or is subject to an exception. In many instances, Defendant has failed to do so. Secondly, in some instances, the statement attributed to Plaintiff was either not made by Plaintiff (as where, for instance, in excerpt 18, Bates 7989, the statement is made by Plaintiff’s grandmother), or it is entirely unclear who made the specific statements Defendant seeks to introduce (as where, for example, in excerpt 7, Bates 7969, the patient, the patient’s mother and the patient’s grandmother

5 The Court does not include the items where Plaintiff waived his hearsay objection. are all listed as the “source of patient information”. See also, excerpt 5, Bates 7957: “Source of history: the patient, grandmother and chart review”). In addition, while Defendant argues that the statements of Plaintiff’s grandmother, mother and Paula Rodriguez can be treated as Plaintiff’s statements for purposes of this Rule, Defendant has failed to make a sufficient showing that they

were Plaintiff’s agent, employee or authorized representative under Rule 801(d)(2). Defendant argues for some entries, that they are being introduced not for the truth of the statement but to show notice “on information bearing on chronic wound prevention.” (Doc. 191 at 2.) An example pointed to by Defendant is entry 22, Bates 8006 which states: “OT educated pt. on the importance of trying to stay out of bed and upright in chair or recliner as much as possible outside of therapy hours. He verbalized understanding and was agreeable to staying up in chair after OT session this PM until after dinner.” It is axiomatic that “an out-of-court statement only constitutes hearsay if its relevance depends on the truth of the matter asserted by the out-of-court declarant.” 30B Jeffrey Bellin, Federal Practice & Procedure § 6718 (2020 ed.). Despite Defendant’s protests to the contrary,

these statements are being offered for the truth of the statements since they are only relevant if they are true, e.g. that Plaintiff was told about steps that could be taken to improve his wound condition and that he verbalized an understanding of those instructions. This is fundamentally different from the documents Defendant compares this to, i.e. ones where, whether true or not, Defendant was made aware of complaints that would arguably trigger a duty to respond. Thus, this proffered exhibit and similar excerpts are hearsay. c. Hearsay – Applicability vel non of La. R.S. 13:3714(A) In support of its argument that certified copies of medical records are admissible in this case, Defendant cites La. R.S. 13:3714(A) and this Court’s decisions in Ariza v. Loomis Armored, U.S., LLC, No. 13- 419, 2016 WL 297702, at n.6 (M.D. La. January 22, 2016) and Williams v. Sanders, No. 13-97, 2016 WL 81272 * 1 (M.D. La. January 7, 2016). La. R.S. (Doc. 168 at 2-4.) This same argument was made by Defendant in this case (Doc. 125) in connection with another motion by Plaintiff (Doc. 124) and rejected by the Court. (Doc. 185; Francois v.

General Health System, No. 3:17-CV-533, -- F. Supp. 3d ---, 2020 WL 1065721, at **3-4 (M.D. La. March 3, 2020)). La. R.S. 13:3714(A) states: A. Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A), certified or attested to by the state health care provider or the private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination. Defendant misreads Ariza and Williams. Neither case holds that this Louisiana statute can somehow avoid or overcome conflicting Federal Rules of Evidence. In Ariza, a case based on both Louisiana as well as federal substantive law, (Docket No. 13-419, Doc. 1 at 1), the Court granted the motion in limine to exclude the medical records at issue based on the Federal Rules of Evidence hearsay rules and found that the records did not fall into the business records exception to that rule. Ariza, 2016 WL 297702 at *4-5 (“Notes scratched on a pad by a doctor or an email written at a patient’s request are not the kind of official records to which Rule 803(6) applies, for they are too informal and too unique to the individual to be classified as records of a regular business activity. However, according to Plaintiff, a foundation may still be laid as to Exhibits 6 and 8, as the doctors who drafted those notes are scheduled to testify.”) In that connection, the Court noted that La. R.S. 13:2714(A) might possibly be used to assist in laying that foundation at trial. (Id. at n. 6.) Similarly, in Williams, there was no hearsay issue. There, the issue was the relevance of the pro se plaintiff’s medical records. The Court held that its finding that plaintiff’s medical

records were relevant in showing injuries that demonstrated excessive force was “buttressed” and “strengthened” by the full control over those records exercised by the defendant’s employer and the employer’s certification of those records under 13:3714(A). Williams, 2016 WL 81272 at *1. The Court went on to hold that, to be admissible, however, the plaintiff would need to lay a proper foundation for the introduction of the records at trial. Id. at *2. “It is well-settled that federal law governs the admissibility or other use of evidence in a federal proceeding, even if the evidence was obtained in violation of state law.” United States v. Edwards, 79 F. Supp. 2d 645, 648 (M.D. La. 1999) (citations omitted). “The principle that governs today is stated easily. . . . [I]f a[] [Federal Rule of] Evidence [] covers a disputed point of evidence, the Rule is to be followed, even in diversity cases, and state law is pertinent only if

and to the extent the applicable Rule makes it so or it provides the federal court with guidance in the construction and application of the Evidence Rules.” Offered for the “Truth of the Matter Asserted”, 19 Charles A. Wright and Arthur R. Miller, Federal Practice & Procedure § 4512 (3d ed. 2020); See also, Jacked Up, LLC v. Sara Lee Corp., 291 F. Supp. 3d 795, 800 (N.D. Tex. 2018), aff'd, No. 11-3296-L, 2018 WL 2064126 (N.D. Tex. May 2, 2018) (stating that, even “[i]n a diversity case, the admissibility of evidence is a procedural issue governed by federal law.” (citing Reed v. Gen. Motors Corp., 773 F.2d 660, 663 (5th Cir. 1985)); Dawsey v. Olin Corp., 782 F.2d 1254, 1262 (5th Cir. 1986) (“[W]e need not concern ourselves with the Louisiana statute because the statute does not apply in federal court; questions concerning the admissibility of evidence in federal court are governed by the Federal Rules of Evidence.”) (citing Fed. R. Evid. 1101; Pollard v. Metropolitan Life Insurance Co., 598 F.2d 1284, 1286 (3d Cir. 1979)). Thus, in determining whether the statements made in the medical records are admissible, the Court turns to the Federal Rules of Evidence.

d. Statement Made for Medical Diagnosis or Treatment - Rule 803(4) As to many of the excerpts, Defendant contends that Rule 803(4) applies as an exception to the hearsay rule, arguing that the statement “is made for – and is reasonably pertinent to – [Plaintiff’s] medical diagnosis and treatment and describes medical history; past or present, symptoms or sensations; their inception; or their general cause.” With respect to any statement found in the medical records made by someone other than the patient, this exception does not apply. This Court has previously stated: “The exception contained in Federal Rule of Evidence 803(4), which permits the admission of statements made for the purposes of medical diagnoses or treatment, is limited to statements made by the person seeking medical treatment or care.” Gray v. Energy XXI GOM LLC, No. CIV.A. 12-165-JJB, 2013 WL 4011990, at *6 (M.D. La.

Aug. 5, 2013) (citing Field v. Trigg County Hosp., Inc., 386 F.3d 729, 735–36 (6th Cir. 2004); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir. 1996); Stull v. Fuqua Industries, Inc., 906 F.2d 1271, 1273 (8th Cir. 1990); Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1985).) See also, Tucker v. Nelson, 390F. Supp. 3d 858, 862 (N.D. Ohio 2019) (holding exception only applies to statements made by the one actually seeking or receiving medical treatment); Truschke v. Phyllis Chaney, LPN, No. 5:17-cv-93, 2019 WL 1960344. at *5 (S.D. Ga. May 2, 2019) (statements made by doctors to plaintiff are not admissible pursuant to the Fed. R. Evid. 803(4)). An example of such a proffered excerpt where Defendant claims 803(4) applicability (Doc. 184-1 at 5) but does not qualify is excerpt 8, Bates 7970: “Discussed with patient if medication non-compliance continues, we will be unable to continue to provide medical care for the patient.” Because this and similar statements proffered by Defendant are not made by the

person seeking medical treatment, Plaintiff, 803(4) does not apply. With respect to statements made by the patient, “. . . Rule 803(4) does not require that each statement be ‘necessary’ for medical treatment; it requires only that statements be “reasonably pertinent to diagnosis or treatment.’” United States v. Santos, 589 F.3d 759, 763 (5th Cir. 2009). See also Reasonably Pertinent to Treatment or Diagnosis, 30B Jeffrey Bellin, Federal Practice & Procedure § 6845 (2020 ed.) (“The text of Federal Rule of Evidence 803(4)(A) requires an objective inquiry into whether the proffered statements were ‘reasonably pertinent’ to the medical provider's diagnosis and treatment tasks. Importantly, the proffered statement does not need to be necessary to treatment, only reasonably related to that purpose.”). e. Records of a Regularly Conducted Activity – Rule 803(6)

Defendant claims that certain excerpts fall within the 803(6) exception: “records of a regularly conducted activity.” As a general rule, “[m]edical records are routinely admitted as evidence under the business records exception to the hearsay rule. Therefore, the medical records are admissible if it was kept in the course of regularly conducted business activity.” Logan v. Westfield Ins. Co., No. 17-29, 2020 WL 406785, at *3 (W.D. La. Jan. 24, 2020). See also Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991) (“Rule 803(6) provides a hearsay exception for records kept in the course of any regularly conducted business activity, which would include hospitals.” (emphasis in original, citations omitted)).6

6 However, as discussed elsewhere in this ruling, medical records qualifying under this exception may nonetheless be excluded for lack of trustworthiness or for their potential to mislead or confuse the jury or create undue prejudice. Defendant contends that essentially every entry it has submitted is subject to the 803(6) exception by the mere fact that the records are certified by the records custodian. (Doc. 168 at 2, 9-28.) Defendant argues that “the Eastern District Court has further specifically ruled that the statement of the custodian affirming that the certification is made in the custodian’s ordinary

course of business qualifies the medical record as an exception to the hearsay rule under Federal Rule 803(6).” (Id., citing Rodgers v. Hopkins Enters. of Miss., LLC, No. 17-6305, 2018 WL 6335778 (E.D. La. Dec. 5, 2018) and Wright v. National Interstate Ins. Co., No. 16-16214, 2017 WL 3686562 (E.D. La. Aug. 25, 2017).) Neither case stands for the broad and immutable proposition for which Defendant cites them. For instance, with respect to any statements made in the medical records ascribed to Plaintiff or any other “outsider”, this exception does not apply. As stated by this Court in connection with another ruling in this case, “An important distinction arises when a business record contains a hearsay statement of an ‘outsider’ to the business. If the source of the statement is an outsider, Rule 803(6) “does not, by itself, permit the admission of the business record.” Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991). “To be admissible, the outsider statement must itself qualify for admission over a hearsay objection, for example by satisfying a separate hearsay exception.” 30B Charles A. Wright and Jeffrey Bellin, Federal Practice & Procedure § 6866 (2018). See also, Bradley v. Sugarbaker, 891 F.3d 29, 35 (1st Cir 2018) (refusing to apply Rule 803(6) exception to patient’s statement in hospital record).

Francois, -- F. Supp. ---, 2020 WL 1065721, at *5. See also Bellin, supra, § 6866 (“As a prototypical example of the outsider principle, a patient's description of his medical history could not be admitted under Rule 803(6) even though the description appeared in the business records of a hospital.”). This principle applies not only to the statements of Plaintiff in the records but also to other “outsiders” such as Plaintiff’s mother, grandmother and Paula Rodriguez. See, e.g. entry 27, Bates 8026: “grandmother states she has two options…” f. Expert and lay opinion testimony

At the heart of the present case is the question of Plaintiff’s ability to adequately communicate with the health care providers employed by Defendant. Each side has an expert addressing this question. Each party filed a Daubert motion to exclude the others’ expert. (Docs. 46 and 48.) For oral reasons given (Doc. 127), the Court granted in part and denied in part both motions. (Doc. 121.) In addition, it is anticipated that both sides will have lay witnesses who will testify as to their perceptions of Plaintiff’s ability or inability to effectively communicate with Defendant’s employees in different scenarios. Plaintiff complains that Defendant is attempting through these medical records to improperly insert expert and lay opinion evidence. (Doc. 184 at 3, 6-8 and Doc. 184-1 at 1-37.) No expert reports have been provided as to any of these individuals whose views are captured in the proffered records and, argues Plaintiff, their opinions should therefore not be allowed. To the extent that these constitute lay opinions, it will be impossible for Defendant to show that the opinions are “rationally based on the witness’s perception,” as required by Fed. R. Evid. 701(a)

since no witnesses will testify at trial in connection with the records. Therefore, these opinions should not be allowed. (Doc. 184 at 7, citing United States v. Garcia, 291 F.3d 127, 140 (2d Cir. 2002).) Defendant denies such phrases as “poor historian” are expert opinions (Doc. 191 at 6) but maintains that, to the extent that they are, any prejudice to Plaintiff can be cured with a limiting instruction. (Doc. 191 at 6.) Defendant fails to address Plaintiff’s argument regarding lay opinion evidence. To the extent that any of the statements call for expert testimony, the Court rules that they are excluded since none of the record keepers involved in the proffered exhibits have been listed as experts, nor has Defendant provided Rule 26 expert reports. But even if their statements constitute merely lay opinion, Rule 701(a) requires that the opinion be one “rationally based on the witness’s perception.” Before the witness is allowed to give lay opinion testimony, a foundation must be laid which demonstrates that the factual basis upon which the opinion is

given is rationally based on the witness’s perception and absent that foundation, the opinion is inadmissible. Baxter v. Anderson, No. 3:16-CV-142, 2018 WL 1959596, at *3 (M.D. La. Jan. 25, 2018) (“[I]t is impossible without context and foundation to rule on the admissibility of such [Rule 701] opinion testimony in the abstract.”). See also United States v. Garcia, 291 F.3d 127, 140 (2d Cir. 2003) (“[A] witness offering a lay opinion must base his opinion on his own personal knowledge, which must be established to the court and jury. ‘When a witness has not identified the objective bases for his opinion, the proffered opinion obviously fails completely to meet the requirements of Rule 701… because there is no way for the court to assess whether it is rationally based on the witness’s perception.” (quoting United States v. Rea, 958 F.2d 1206, 1212 (2d Cir. 1992)); “Rationally Based on the Witness's Perception”, 29 Victor J. Gold, Federal

Practice & Procedure § 6254 (2020 ed.) (“While Rule 701 requires that lay opinion must be rationally based on perception, the provision is silent as to whether the proponent of the opinion must elicit the details concerning the witness' perceptions before the opinion is given. However, the courts have held that such a foundation must be established before the opinion is admissible. The foundation must refer to the specific matters perceived; vague, general statements about the basis for lay opinion are insufficient.”). Furthermore, Even if a witness has perceived a matter with his senses, the second component of personal knowledge requires that the witness has the experience necessary to comprehend those perceptions. In many cases, comprehension requires no more experience than that presumably universal to the human condition. However, where the lay witness observes matters that can be comprehended only with specialized experience, it may be necessary to demonstrate that the witness has such experience.

Gold, supra, § 6254.

Here, because of Plaintiff’s alleged deafness and intellectual limitations, whether or not Plaintiff understood what was being said and, if so, the extent of that understanding is, as mentioned above, the main issue in the case and the subject of expert testimony on both sides. So, when a nurse writes “Patient deaf but can communicate via writing back and forth…” (Doc. 167-1 at 17, excerpt 17, Bates 7989), this is an opinion. What training or experience does the writer have in communicating with a deaf person? What factors led the nurse to reach this conclusion? What was the level of communication? What difficulties were encountered in the communication? If there was an interpreter present, what were that person’s qualifications? These questions and many others are unanswered and unanswerable since no live witness will be presented. They are questions central to the case. Similarly, when an entry reads, “Patient in bed communicating with dry erase board and sign language through family member at bedside” (Doc. 167-1 at 3, excerpt 3, Bates 7965), this is expressing an opinion. What was being communicated on the dry erase board and what was being communicated by sign language to relatives? How effective was the communication? Etc. Because Defendant is not calling the writer to testify, there is no way for Defendant to make the requisite factual showing regarding what he or she perceived and whether the writer has sufficient experience or expertise to give this opinion rationally based on the witness’s perception. Further, were the Court to allow this into evidence, there would be no way for Plaintiff to cross-examine the writer and test the level of that experience or the details of what he/she saw to challenge whether Plaintiff was truly “communicating.” The limitations of this exhibit are demonstrated by the exhibit itself, which goes on to say, “History limited by communication,” (itself, an opinion). (Id.) In what way was it limited? Why? The records provide no answers. Examples of similar excerpts are 3, 4, 5, 10, 11, 13, 14, 15, 16, 18, 22, 24, 25, 38, 44, 46,

and 47. Thus, to the extent that these entries are not hearsay or are subject to an exception to the hearsay rule, they are excluded because of an insufficient foundation laid to admit Rule 701 lay opinion testimony. In addition, those entries that deal indirectly with Plaintiff’s ability to understand, e.g. those entries that purport to show that Plaintiff was instructed regarding wound care and/or acknowledged understanding those instructions and/or disregarded them, the Court’s ruling is the same since they implicitly convey the opinion that the communication was effective. These include excerpts 7, 8, 9, 20, 22, 23, 24, 25, 26, 29, 32, 33, 28, 45, 46, 48, 49, 50, 53 and 54. There are also excerpts that describe the state of healing of Plaintiff’s wound. An example is excerpt 52 (D31, Bates 8214, Doc. 167-1 at 53). That proposed entry reads:

“…Patient is also showing steady improvement of his [left] ischium area wound. His wound surface is healing on the wound bed and around the edges.” This entry is relevant to the damages and causation issues and is a valid 803(6) exception to the hearsay rule. While it does express an opinion, it does not involve any express or implied opinion regarding Plaintiff’s ability to communicate, and therefore is more in the nature of an observation than a matter of interpretation or speculation. Thus, the Court exercises its discretion and denies Plaintiff’s motion as to this and similar excerpts. (See, e.g. excerpts 41, 42, part of 43 and 52.) In closing, the Court must limit its holding. The Court is not finding that, in all cases, medical records are inadmissible or that, in every situation, such documents cannot sufficiently convey that a deaf patient understood instructions that were given to him. Rather, the Court is merely holding that, under the unique facts of this case—for example, where no corroborating witness subject to cross examination has been or will be called, where the level of understanding is the subject of contradictory expert opinions, where there are a considerably large number of

documents at issue that would subject the jury to numerous mini-trials, and where the records are almost completely devoid of any foundation establishing the basis upon which the provider concluded the deaf patient did in fact understand—the records at issue are inadmissible. g. Rule 403 Balancing Plaintiff argues that, even if the proposed exhibits are not hearsay, or are subject to a hearsay exception, or are otherwise admissible, they should be excluded Fed. R. Evid. 403. Entirely discretionary, Federal Rule of Evidence 403 allows a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. According to the relevant advisory committee, “ ‘[u]nfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed. R. Evid. 403 advisory committee note. As case law further explains, “evidence is prejudicial [for purposes of Rule 403] only when it tends to have some adverse effect upon accused beyond proof of fact or issue that justified its admission into evidence, by proving some adverse fact not in issue or exciting emotions against accused.” United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980).

Tucker Mgnt., 2016 WL 8261722, at *1.

Plaintiff argues that, because these 58 medical record excerpts cover multiple different health care providers at different facilities, no one of whom is being called to testify at trial, it will require Plaintiff to litigate multiple “cases within a case” (Doc. 184 at 3), “without the benefit of cross examining the medical professional[s] who wrote down the out of court statement[s].” (Doc. 184-1 at 3.) To the extent any of these documents are relevant, their “relevance is outweighed by the danger of unfair prejudice due to the lack of cross examination.” (Id. at 4.) Because the witnesses are not being called live, it allows Defendant to “utilize ‘back door’ expert testimony without the benefit of challenging those opinions on cross examination.” (Id. at 5-6; see also id. at 7, 8, 12, 14, 15, 22, 25, 28, 30, and 35.) Defendant does little to address Plaintiff’s arguments, responding only that there are no

expert opinions in the proffered entries and that any prejudice can be remedied with a limiting instruction. (Doc. 191 at 6.) Defendant fails to address at all Plaintiff’s argument regarding lay opinion testimony and the practical effect of requiring Plaintiff to try multiple cases within a case without the benefit of cross examination. As discussed previously, a central issue in this case is how well Plaintiff gave, received and understood information to and from healthcare providers by way of a variety of communication techniques utilized at different times, including using a live interpreter, video remote interpreting, family members and writing. The issue is a complex one and the position of Plaintiff and Defendant on this issue is starkly different, as is the evidence that will be presented on this point through both lay and expert witnesses. While the medical records from Defendant’s

facilities will be introduced and used by both sides, these records are fundamentally different from those being considered here in that, as to the former, there will be lay witnesses who will testify in connection with the records and events described therein. Plaintiff will therefore have the right to examine or cross examine those witnesses on points such as the details of the interactions and the witness’s level of training with deaf or impaired patients. And while both sides have experts who will provide their view of what those records mean on the ultimate question, the experts will have the benefit of the testimony of those who were actually involved in the interactions. Here, Defendant seeks to introduce the medical records at issue in this motion without any accompanying testimony. As Plaintiff correctly argues, if the records at issue here are admitted, there will be no such ability to cross examine the record makers. Many of these records either directly or implicitly express an opinion on the critical issue of Plaintiff’s ability to

communicate under various scenarios. While Defendant posits that it is not offering the evidence for that purpose, it is clear that the jury will almost certainly use it as such. While certain of these records may fall into the 803(6) exception to the hearsay rule, the Court must still consider the implications of these rules under Rule 403. In doing so, the Court finds that the potential for the jury being confused or, worse, misled, as well as the unfair prejudice to Plaintiff in being unable to cross examine the record makers is such that those records touching on Plaintiff’s communication with providers must be excluded. [A]dmissibility of all such entries [under Rule 803(6)] is not assured. First, where indications of lack of trustworthiness are shown, which may result from a lack of expert qualifications or from a lack of factual support, exclusion is warranted. Moreover, inclusion of opinions or diagnoses within the rule only removes the bar of hearsay. In the absence of the availability of the expert for explanation and cross- examination, the court may conclude that the probative value of this evidence is outweighed by the danger that the jury will be misled or confused. This is of particular concern if the opinion involves difficult matters of interpretation and a central dispute in the case, such as causation. Under these circumstances, a court operating under the Federal Rules, like earlier courts, is likely to be reluctant to permit a decision to be made upon the basis of an un-cross-examined opinion and may require that the witness be produced.

Sims v. State Farm Mutual Automobile Insurance Company, No. 4:13CV00371, 2016 WL 3511712, at *3 (W.D. Ark. Jan 13, 2016) (quoting McCormick On Evidence § 293 (John W. Strong, Ed., 4th ed. 1992) (citing Raycraft v. Duluth, Missabe, and Iron Range Ry. Co., 472 F.2d 27 (8th Cir. 1973)); see also Nagle v. Gusman, No. CV 12-1910, 2016 WL 560688, at *5 (E.D. La. Feb. 12, 2016) (“The average juror does not have the specialized knowledge or experience necessary to understand or interpret a patient’s medical records.” (citing Greeno v. Daily, 414 F.3d 645, 658 (7th Cir. 2005) (noting that understanding medical records and patient treatment likely requires expert testimony); Fowler v. Carrollton Pub. Library, 799 F.2d 976, 982 (5th Cir. 1986) (holding that a district court erred in admitting medical records “with no accompanying expert explanation of their significance”)); Sims, supra, quoting Christopher B. Mueller & Laird

C. Kirkpatrick, Modern Evidence, § 8.45 (1995) (“Where the physician who made the diagnosis testifies, or where another with firsthand knowledge testifies, admitting reports reflecting difficult, elaborate, or unusual diagnoses seems easier to justify. Without such testimony, risks of confusing the issue or misleading the jury are likely to justify exclusion under FRE 403.”). Included in these records are a number of excerpts where the recorder indicates that that the patient and/or the patient’s relative was instructed on some aspect of wound care. This kind of entry is relevant to damages and causation. Plaintiff argues that this kind of entry is intended to prove Plaintiff’s comparative fault which is not a defense in this kind of case. (Doc. 184-1 at 8-9.) Defendant responds that it is not offering this evidence to establish comparative fault but rather on the issue of causation and to counter Plaintiff’s argument that he was unable to learn

about proper wound care. (Doc. 191 at 4-5.) As stated above, the entries are relevant to the issue causation. But this does not answer the question of whether they suffer from the potential for confusing or misleading the jury as previously discussed in connection with other kinds of entries. An example of this kind of record is excerpt 24 (D28, Bates 8011) which reads, in pertinent part: Patient nodded head that he understood importance of following a bowel program, as well as risks of developing pressures (sic) sores with poor positioning in bed and lack of movement. Encouraged patient to have more awareness of his bodies (sic) needs with skin checks, proper diet and movement. Patient and patient’s grandmother nodded head in understanding of self-care needs upon discharge.” Part of the reason Defendant seeks to introduce this entry is to impeach the testimony of Plaintiff, Plaintiff’s lay witnesses and Plaintiff’s expert that Plaintiff was compliant with his wound care instructions. (Doc. 184-1 at 16.) The first and third entries raise the 701 and 403

concerns already discussed above and are excluded. The second sentence is more problematic in that it only concerns what the recorder told Plaintiff and his grandmother. However, even if isolated, it suggests, without the ability of Plaintiff to challenge this assumption on cross examination, that Plaintiff received and understood the instruction. Thus, because of the potential for misleading and confusing the jury, the second sentence is excluded as well. Thus as to the entries which purport to show that Plaintiff (or Plaintiff and someone else) was/were instructed on wound care, the Court finds that the probative value of these is outweighed by the prejudicial effect, which, as the Court previously mentioned, is compounded by the inability of Plaintiff to cross examine the recorders. There is a separate reason that some of the proffered exhibits may confuse or mislead the

jury: in a number of the entries, the information charted is coming from multiple sources (e.g. Plaintiff, grandmother, mother, Paula Rodriguez), and it is impossible to determine how much of the information charted came from Plaintiff. See Petrocelli v. Gallison, 679 F.2d 286, 289–91 (1st Cir. 1982) (finding that two entries in hospital record stating that the nerve was previously severed, the most critical issue in case, were properly excluded; it was impossible to determine whether patient or physician was source of information, and plaintiff made no attempt to depose or otherwise seek clarification from physicians). Defendant suggests that these issues can be resolved with a limiting instruction and likens the case to the Court’s ruling in allowing emails from Ms. Rodriguez into evidence, with a limiting instruction, to show notice. (Doc. 191 at 6, citing Doc. 166.) The Court disagrees that these are comparable. In the case of the Rodriguez emails, Ms. Rodriguez will testify at trial and can be cross examined while here, cross examination of those who created the records is not possible. Here, the Court finds that a limiting instruction would not sufficiently cure the concerns

generated by the admission of these exhibits. Finally, because there are 58 separate excerpts by multiple providers at multiple facilities, the Court also agrees with Plaintiff that allowing many of these into evidence would potentially require numerous mini-trials within the main trial. The Court finds that, under these unique facts, this would, to use the words of Rule 403, waste time and cause undue delay. The Court’s rulings on each entry is set out in the Chart at the conclusion of this decision. h. Impeachment

Defendant maintains that the vast majority of the proposed entries7 can properly be used for impeachment. (Doc. 168 at 6-7.) For instance, Defendant intends to use the statements of Plaintiff, Leona Deemer and Paula Rodriguez reflected in the medical records to impeach their anticipated in court testimony. (Id. at 6.) In addition, Defendant contends the in-court expert testimony of Plaintiff’s expert, Judy Shepherd-Kegl “that in-person interpreters are the only effective communication for [Plaintiff] in a medical setting” can be impeached by some of the proposed records. (Id., at 6-7, emphasis in original.) While Plaintiff seems not to take issue with the proposition that extrinsic evidence can be used to impeach a witness’s in court testimony,8 he

7 Excerpts 3, 4, 5, 7, 8, 9, 11, 13, 14, 15, 16, 18, 20, 21, 22, 23, 24, 25, 26, 28, 33, 35, 38, 42, 43, 44, 45, 46, 47, 48, 49, 59, 51, 53, 56 and 58. In some of these excerpts, Defendant did not argue directly for impeachment but this was plain from Defendant’s comments. (Excerpts 3, 4, 21, 28, and 58.) 8 Indeed, in one instance, Plaintiff states that “[a]s to purported party admissions by Ms. Deemer and Mr. Francois, Plaintiff concedes that these statement (sic) is sufficient (sic) specific that Defendant should be permitted to use the page to impeach Ms. Deemer and Mr. Francois, if appropriate and somehow relevant.” Entry 20, Doc. 184-1 at 20; see also entry 13.) argues that either the extrinsic evidence is excludable on other grounds (like hearsay or on 403 grounds) or that the proffered exhibit doesn’t actually contradict the anticipated testimony. Ultimately, whether a document can be used for impeachment must wait for trial where the Court can hear the foundational question, the answer, determine whether the proper steps for

impeachment follow, and whether the document may properly be used for impeachment. However, the Court provides the following for guidance to the parties. With respect to statements made by anticipated witnesses that are found in the records (e.g., Ms. Deemer, Ms. Rodriguez and Mr. Francois), the statements themselves are not hearsay and may be used to impeach. See Fed. R. Evid. 607, Advisory Note. (“If the impeachment is by a prior statement, it is free from hearsay dangers and is excluded from the category of hearsay under Rule 801(d)(1).”) But the statements of these witnesses are embedded in a record created by another out of court declarant, which is itself hearsay. Therefore, in order for the statements to be used for impeachment, there must be an exception to the hearsay statement of the recorder. With respect to other entries (e.g. descriptions of Plaintiff using the dry erase board to

communicate to impeach Shepherd-Kegl’s testimony that an in-person interpreter is the only effective way for Plaintiff to communicate in a medical setting), these statements could be used for “impeachment by contradiction”9 if they were given in court by the eyewitness. But here, Defendant offers that extrinsic evidence by way of records not supported by eyewitness testimony. In such a circumstance, the extrinsic evidence is collateral and cannot be used for

9 “Impeachment by contradiction occurs when a party offers evidence to prove that a fact to which a witness testified is not true. While the Evidence Rules do not explicitly recognize contradiction as a basis for attacking credibility, the admissibility of contradiction evidence can be inferred from the relevance rules and Rule 607.” Bases For Attacking Credibility—Contradiction, 27 Victor J. Gold, Federal Practice & Procedure § 6096 (2d ed. 2020). impeachment if it is inadmissible as hearsay or on other grounds. As one noted commentator stated: [I]t is important to emphasize that contradiction evidence is non-collateral only if it is admissible, not just probative, of a substantive issue in the case. This means that the evidence is collateral if some exclusionary rule renders the evidence inadmissible to prove the substantive fact in question. So in the murder prosecution mentioned in the preceding paragraph, even though extrinsic evidence of the victim's death goes to a key substantive fact, that evidence is collateral if it is inadmissible hearsay. Once more, Rule 403 should produce the same result. Under Rule 403, the probative value of the evidence to prove the substantive fact would be disregarded if it is inadmissible for that purpose while the danger of unfair prejudice would be enhanced by the risk that the jury might misuse the evidence for this inadmissible substantive purpose.

27 Victor J. Gold, Federal Practice & Procedure § 6096 (2d ed. 2020).

Therefore, the motion is granted as to Defendant’s use for impeachment by contradiction

any excerpt the Court has ruled otherwise inadmissible. As to any other excerpt, the motion is

deferred until trial.

i. Ruling Table of Medical Records Exhibits to be Offered with Specific Positions as to Each’s Admissibility

Exhibit Page No. Hearsay Exceptions Relevance Plaintiff’s Response RULING 1. D24 - 7963 803(6)(certification Certification by Plaintiff waives P does not object. Court will Bone & page). Medical Records objections. admit if there are any other Bone Joint Custodian, certified and Joint records admitted. If not, Clinic copies in course of document is not relevant. Records ordinary business. 2. D24 7964 803(6) (see Relevant to Plaintiff waives P does not object. Will be certification Page) Plaintiff’s claims of objections. admitted. (“discharged from worsening/chronic OLOL Rehab on pressure ulcers as 5/17, being cared for being caused by care by cousin, grandma, of BRG; evidence of no home health, no care of Plaintiff, a wound care...). paraplegic, at home during time immediately prior to admission to BRG. 3. D24 7965 801(d)(2)(Party Relevant to Objection. (1) Fails Motion granted. Foundation Admission); 803(4) Plaintiff’s claim as Business Record. required for 701 lay opinion. Also (“Feels nauseous this regarding preferred First, trustworthiness excluded on Rule 403 grounds. mode of is at issue. There is morning with same communication. Not no evidence that an back pain…”); offered to prove interpreter was effectiveness or present. Second, no 803(6)(see quality of evidence that dealing certification communication with with Deaf individuals cage)(“Patient in bed dry erase board. is a regular part of the communication with Rather, relevant Bone and Joint dry erase board” is that patient is using Clinic’s business or non-hearsay. dry erase board as occupation and that opposed to in- they had the policies, person interpreter procedures, and during an inpatient practices in place to hospitalization. See accurately Complaint, Expert communicate with Report and Mr. Francois using Deposition of Dr. the communication Judy Shepherd-Kegl, modality purportedly Plaintiff alleges that employed (in this preferred mode of case a “dry erase communication is in- board”). person interpreter. Further, 801(d)(2) and 803(4) are not applicable because this is a narrative note by a nurse as to what purportedly occurred (e.g. the nurse used a “dry erase board”), not a specific statement by Mr. Francois.

(2) There is no expert opinion issue.

(3) Irrelevant and unduly prejudicial. Defendant seeks to argue that its use of a white board is acceptable because another provider “did it too,” but this theory is not supported by any case law or regulatory authority under Title III of the ADA, the Rehabilitation Act, or Section 1557 of the ACA. Permitting the admission of this “evidence” would create a “case within a case” where Mr. Francois is obligated to rebut what did/did not happen on 4/14/2017 at the Bone and Joint Clinic, whether use of a “dry erase board” was appropriate at said appointment, and whether the Bone and Joint Clinic evaluated his communication needs and preferences. Additionally, Defendant is not calling the author of this out-of-court statement, further undermining its relevance. The Jury will not hear what— if any—training the Bone and Joint Clinic staff have on using a “dry erase board” to communicate with Deaf individuals. Instead, the Jury will be left to speculate about this “evidence.” Thus, this record is unduly prejudicial and should be excluded. 4. D24 7966 801(d)(2) (Party Relevant to Same basis as D24, p. Motion granted. Headache is Admissions); Plaintiff’s claim 7965. Again, this is irrelevant; Foundation by 803(4) (“he states he regarding preferred offered for the truth testimony is required for 701 lay has a headache…”); mode of of the matter opinion. Also Rule 403. 803(6) (see communication. Not asserted, specifically, certification page); offered to prove that communication “All information effectiveness or effectively occurred obtain through quality of through a written written board to communication with board. patient” is non- dry erase board, hearsay. rather relevant that Plaintiff notes that patient is using dry what communication erase board as modalities that opposed to in- another provider person interpreter used—without during an inpatient consulting Mr. stay with a Francois—does not healthcare provider. mean that said See Complaint, modalities are in any Expert Report and way indicative or Deposition of Dr. relevant to Mr. Judy Shepherd-Kegl, Francois’ Plaintiff alleges that “preference.” preferred mode of Admission of this communication is in- record will create a person interpreter. case-within-a-case where Mr. Francois is obligated to litigate what happened on 4/11/2017 and whether said accommodation was his preference under the circumstances, all without the benefit of cross examining the medical professional who wrote down the out of court statement that information was obtained from Mr. Francois through “written board to patient.” 5. D24 7967 803(6)(see Relevant to Objection. Same Motion granted. Foundation certification); Plaintiff’s claim that objections as D24, p. lacking for 701 lay opinion. Also (“History was in-person interpreter 7965 and 7966. Rule 403. obtained by writing is preferred mode of questions and communication; interviewing Relevant to grandmother.”) Plaintiff’s claim that he is illiterate. Evidence of communication with Plaintiff through written questions. Not offered to prove effectiveness or quality of communication with Plaintiff. Rather, relevant that Plaintiff noted to use written questions. Relevant to impeachment of testimony by Plaintiff, Leona Deemer, Paula Rodriguez, Dr. Judy Shepherd Kegl that Plaintiff is illiterate. 6. D-25 7968 803(6) (certification Certification by No objection. No objection. Will be allowed if page). Medical Records other parts of chart are admitted. Custodian, certified Otherwise irrelevant. copies in course of ordinary business. 7. D25 7969 801(d)(2)(Party Relevant to (1) Plaintiff does not Motion granted. To the extent that Admission); 803(4) Plaintiff’s claims of dispute the the statements are attributed to (“Patient going to worsening/chronic trustworthiness of Plaintiff (as opposed to mother or wound care 3 times a pressure wounds as this specific record. grandmother – not clear), week and was started caused by foundation lacking for 701 on Augmentin but care/communication (2) There is no opinion. Also Rule 403. reports he is not at BRG; discusses expert opinion issue. taking them because status of patient’s pills are large and he wounds 11/22/2017 (3) This out-of- has 3 bottles…”); (approximately 2 context medical 803(6) (see months following record is not relevant certification). discharge from BRG and, to the extent it is Wound Care) as well relevant its relevance as patient is outweighed by the compliance; relevant danger of unfair to impeach any prejudice due to the testimony by Plaintiff lack of cross or Plaintiff witnesses examination. The that Plaintiff is record states that Mr. compliant with all Francois was not patient instructions. taking pills. Dr. Garner is not being called by Defendant to explain the nature or purpose of these pills. With no explanation from a witness, the Jury will be left to speculate. Out of context, this record is unfairly prejudicial. 8. D25 7970 801(d)(2) (Party and Relevant to claims of (1) Plaintiff does not Motion granted. Foundation Relational worsening/chronic dispute the lacking for lay opinion testimony. admissions); 803(4) pressure wounds as trustworthiness of Also Rule 403. (“Patient here with being caused by this specific record. interpreter and care/communication mother and case at BRG; evidence of (2) Impermissible worker, patient and status of patient’s Expert Testimony. mother are poor wounds 10/18/2017 The statement that historians and did not (approximately one Mr. Francois is a bring meds with them month following “poor historian” is a today. Patient reports discharge from BRG complex, nuanced mood has improved Wound Care) as well issue that is well and he is now going as patient beyond the normal, to wound care, but compliance; relevant everyday opinion does show up to Plaintiff’s claims testimony that a lay late…Discussed with that only effective witness is permitted patient if medication communication at to offer in Court. noncompliance health care provider Given that “Gregory continues, we will be appointment is Gardner, MD” was unable to continue to through in-person not listed as a provide medical care interpreter. In-person witness—and will not for the patient.”); interpreter used for be testifying in 803(6) (see this visit and patient person—Defendant certification). reported as a poor should not be historian. Relevant to permitted to utilize impeachment of “back door” expert testimony by testimony about Mr. Plaintiff, Paula Francois being a poor Rodriguez, Dr. Judy historian. Nor will Shepherd Kegl and/or the Jury be told what Leona Deemer that a “good historian” Plaintiff communicates (3) Irrelevant and effectively only unduly prejudicial. through in-person Defendant seeks to interpreter at medical offer as evidence a appointments. statement by a third- party medical provider who opined that Mr. Francois is a poor historian and somehow use this to establish whether Mr. Francois needed adequate accommodations or suffered damages from the lack of adequate accommodation. Given that Defendant will not be calling the individual who authored this “opinion,” however, the relevance of this third-party state would appear to be outweighed by the danger of unfair prejudice. 9. D25 7971 803(6) (see Relevant to claims of (1) Plaintiff does not Motion granted. Foundation certification)(“Patient worsening/chronic dispute the lacking for 701 lay opinion. Also, has been discharged pressure wounds as trustworthiness of Rule 403. from wound clinic being caused by this specific record. because he refused care/communication treatment.”). at BRG; evidence of (2) There is no Plaintiff non- expert opinion issue. compliance; relevant to Plaintiff’s claims (3) This out-of- and impeachment of context medical Plaintiff, Leona record is not relevant Deemer, Paula and, to the extent it is Rodriguez, Dr. Judy relevant its relevance Shepherd Kegl is outweighed by the testimony that danger of unfair Plaintiff did not prejudice due to the understand why lack of cross discharged from examination. The BRG Wound Care; record states that Mr. impeachment of Francois was testimony by “discharged from Plaintiff, Leona wound clinic because Deemer and/or Paula he refused Rodriguez re: treatment.” Does that Plaintiff did not mean that he was understand why discharged from the discharged from care of Mr. Gregory BRG Wound Care. Garner, MD or from the care of Baton Rouge General? With no explanation from a witness, the Jury will be left to speculate. Out of context, this record is unfairly prejudicial. 10. D25 7973 801(d)(2) and 803(4) Relevant to (1) Plaintiff does not Motion granted. To the extent that (“Source of patient Plaintiff’s claim of dispute the source of information purports to information was worsening/chronic trustworthiness of be Plaintiff (unclear), foundation patient, source of pressure wounds as this specific record. is lacking for lay opinion patient information being caused by care testimony. Also Rule 403. was maternal at BRG; evidence of (2) There is no grandmother, source other care provided expert opinion issue. of patient information by other caregivers was another in-person during time Plaintiff (3) This out-of- interpreter, patient was still a patient of context medical seen by Hope BRG Wound Care; record is not relevant Therapy…Capital evidence of status of and, to the extent it is Regions Home pressure wounds at relevant, its relevance Health came to home the time. is outweighed by the on Friday…”); danger of unfair 803(6) (see prejudice due to the certification). lack of opportunity for cross examination. It is entirely unclear what occurred at this medical appointment. With no explanation from a witness, the Jury will be left to speculate. Devoid of context, this record is unfairly prejudicial. 11. D25 7975 801(d)(2) (“Source of Relevant to (1) Plaintiff does not Motion granted. To the extent patient information Plaintiff’s claims of dispute the that source of information was patient, source of worsening/chronic trustworthiness of purports to be Plaintiff (unclear), patient information pressure wounds as this specific record. foundation is lacking for lay was maternal being caused by opinion testimony. Also Rule grandmother, source care/communication (2) Impermissible 403. It is unnecessary at this time of patient information at BRG; evidence of Expert Testimony. to rule on the objection regarding was another Plaintiff’s non- The statement that whether comparative fault is person…sign Mr. Francois is a appropriate in this case. language compliance with “poor historian” is a interpreter”); treatment; complex, nuanced 803(4) (“Both patient Relevant to issue that is well and MGM poor Plaintiff’s claim that beyond the normal, historians…Baton in-person interpreter everyday opinion Rouge General is only means of testimony that a lay Wound Care once effective witness is permitted weekly and communication in to offer in Court. uncertain…followed medical setting, Given that “Gregory by Baton Rouge evidence that patient Gardner, MD” was General Wound Care noted as poor not listed as a per MGM. Patient historian despite witness—and will not reports follow-up having in-person be testifying in next week with interpreter present; person—Defendant wound care. Wound relevant to should not be care treating sacral impeachment of permitted to utilize ulcer and GSW site Plaintiff, Leona “back door” expert T-Spine. Meds Deemer, Paula testimony about Mr. reviewed. Patient Rodriguez, Dr. Judy Francois being a poor reports not taking as Shepherd-Kegl historian. Nor will prescribed. MGM testimony that the Jury be told what reports awaiting Plaintiff a “good historian” PT/OT. No home communicates health to home effectively only (3) This out-of- although told on through in-person context medical discharge home interpreter at medical record is not relevant health would be appointments. and, to the extent it is ordered”); 803(6)(see relevant, its relevance certification). is outweighed by the danger of unfair prejudice due to the lack of opportunity for cross examination. The one-page Defendant references, Francois_GHS7975, does not contain any indication of its author. The page is completely unsigned. Defendant fails to explain why this unsigned, one-page record—with no supporting author—is “trustworthy,” much less probative of the issues in this case. Further, to the extent Defendant asserts that this record is relevant to prove its defenses of “comparative fault / contributory negligence,” Mr. Francois refers the Court to the fact that these are not valid affirmative defense to a claim for an intentional tort. Logan v. City of Pullman Police Dep't, No. CV-04- 214-FVS, 2006 WL 994759, at *2 (E.D. Wash. Apr. 14, 2006) (“because comparative fault is inapplicable in the context of an intentional tort, Morgan, 137 Wash.2d at 896, 976 P.2d at 623, the Court concludes Defendants' affirmative defense of comparative fault is inapplicable to Plaintiffs’ Section 1983 claims.”); See Restatement (Second) of Torts § 481 (“The plaintiff’s contributory negligence does not bar recovery against a defendant for a harm caused by conduct of the defendant which is wrongful because it is intended to cause harm to some legally protected interest of the plaintiff or a third person”) (emphasis added).

12. D26 7976 803(6) (certification Certification by No objection. No objection. Allowed in if there page). Medical Records are other parts of the record that Custodian, certified come in; otherwise, irrelevant. copies in course of ordinary business. 13. D26 7977 801(d)(2) (Party and Relevant to Same basis as D24, p. Motion granted. To the extent Relational Plaintiff’s claim that 7965. Again, this is source of information was Admissions) (“patient preferred offered for the truth Plaintiff (unclear), foundation is and grandmother”); communication is in- of the matter lacking for lay opinion. Also, 803(4) (“History person interpreter. asserted, specifically, Rule 403. In addition, offered obtained by writing Evidence that that Mr. Francois’ excerpt is hearsay and no questions and Plaintiff provides history was obtained applicable exception. interviewing history through his through his writing grandmother…source grandmother and and his grandmother. of history patient, through written grandmother”); questions. Not 803(6) (see offered as a certification page). commentary on effectiveness of reported communication, rather, offered as relevant to Plaintiff’s claimed “preference for in- person interpreter;” relevant to impeachment of Plaintiff, Leona Deemer, Paula Rodriguez, Dr. Judy Shepherd Kegl testimony that Plaintiff did not understand why discharged from BRG Wound Care; impeachment of testimony by Plaintiff, Leona Deemer and/or Paula Rodriguez that Plaintiff prefers communication only through in-person interpreter. 14. D26 7978 801(d)(2) (Party Relevant to Same basis as D24, p. Motion granted. Foundation is Admission) (“patient Plaintiff’s claim that 7965. Again, this is lacking for lay opinion. Also, and grandmother”); preferred offered for the truth Rule 403. 803(4) (“All communication is in- of the matter information obtained person interpreter. asserted, specifically, through written board Evidence that that information was to patient”); Plaintiff provides obtained through a 803(6) (see history through his “written board.” certification page). grandmother and through written questions. Not offered as a commentary on effectiveness of reported communication, rather, offered as relevant to Plaintiff’s claimed “preference for in- person interpreter;” relevant to impeachment of Plaintiff, Leona Deemer, Paula Rodriguez, Dr. Judy Shepherd Kegl testimony that Plaintiff prefers communication through in-person interpreter only. 15. D-26 7979 801(d)(2) (Relational Relevant to Same basis as D24, p. Motion granted. To the extent and Party Plaintiff’s claim that 7965. Again, this is source of information was Admissions)(“patient preferred offered for the truth Plaintiff (unclear), foundation is and family communication is in- of the matter lacking for lay opinion. Also, member”); person interpreter. asserted, specifically, Rule 403. 803(4) (Patient in bed Evidence that that communication communicating with Plaintiff provides occurred through a dry erase board and history through his dry erase board. sign language grandmother and through family through written member); questions. Not 803(6) (see offered as a certification page). commentary on effectiveness of reported communication, rather, offered as relevant to Plaintiff’s claimed “preference for in- person interpreter;” relevant to impeachment of Plaintiff, Leona Deemer, Paula Rodriguez, Dr. Judy Shepherd Kegl testimony that Plaintiff prefers communication only through in-person interpreter. 16. D26 7981 803(6) (See Relevant to Same basis as D24, p. Motion granted. Foundation certification Plaintiff’s claim that 7965. Again, this is lacking for lay opinion. Also, page)(“Using white preferred offered for the truth Rule 403. board for communication is in- of the matter communication person interpreter. asserted, specifically, secondary to hearing Evidence Plaintiff that a “white board” impaired and mute.”). using white board for was used for communication. Not communication. offered as a commentary on effectiveness of reported communication, rather Plaintiff’s claimed “preference for in-person interpreter;” relevant to impeachment of Plaintiff, Leona Deemer, Paula Rodriguez, Dr. Judy Shepherd Kegl testimony that Plaintiff prefers communication only through in-person interpreter. 17. D27 7988 803(6) (certification Certification by No objection. No objection. Allowed if any of page). Medical Records other records in this grouping Custodian, certified come in. Otherwise, irrelevant. copies in course of ordinary business. 18. D27 7989 801(d)(2) (Relational Relevant to Same basis as D24, p. Motion granted. Hearsay. 803(4) and Party Plaintiff’s claim that 7965. Again, this is does not apply because statement Admissions)(“per in-person interpreter offered for the truth is not by patient. 803(6) does not grandmother patient is preferred method of the matter apply because statement is by reports… patient of communication in asserted, specifically, outsider. In addition, foundation reports…”); hospital setting, and that Mr. Francois’ lacking for lay opinion. Also Rule 803(4) (Patient deaf Plaintiff’s claim that history was obtained 403. As to the reference to patient but can communicate he is illiterate. through his writing being punched by Uncle, this is via writing back and Evidence that and his grandmother. irrelevant. forth. Patient reports Plaintiff he was punched in communicates via The medical records the nose by his writing back and relate to Plaintiff uncle); forth. Relevant to reporting that he was 803(6) (see impeachment of punched in the nose certification Plaintiff, Paula by his uncle. page)(“Patient deaf Rodriguez, Leona Whether Mr. but can communicate Deemer and Dr. Judy Francois was via writing back and Shepherd-Kegl that punched by his forth”). Plaintiff is illiterate uncle two years and prefers before the communication only discrimination at through in-person issue in this case interpreter. does not bear on liability or damages.

19. D28 7993 803(6) (certification Certification by No objection. No objection. Allowed if any of page). Medical Records other records in this grouping Custodian, certified come in. Otherwise, irrelevant. copies in course of ordinary business. 20. D28 7995 803(6) (see Relevant to Same basis as D24, p. Motion granted. To the extent certification)( “He Plaintiff’s claim for 7965. Again, this is source of information was was extremely worsening/chronic offered for the truth Plaintiff (unclear), foundation withdrawn and was pressure ulcers as of the matter not participatory with being caused by care asserted, specifically, lacking for lay opinion. Also, rehab…He did have at BRG; establishes that Mr. Francois was Rule 403. his grandmother patient’s compliance “withdrawn and was come as well as as alternative cause, not participatory with friends, and as patient received rehab.” Again, interpretative service patient education in however, Mr. working with him presence of in-person Francois will not be each day during interpreter; relevant able to cross examine rehab. Occasionally to Plaintiff’s claim the writer of this there were times that in-person statement as to how when there was not interpreter is only often an interpreter an interpreter service effective was actually present present. Nonetheless, communication in and what steps they the majority of the healthcare setting, as took (if any) to time the patient did patient had in-person engage Mr. Francois have an interpreter interpreter, did not in the rehabilitation present to help with respond optimally. process. education and Relevant to See also, Plaintiff’s communication impeachment of argument about daily.”). testimony by Defendant’s Plaintiff, Leona comparative fault / Deemer, Paula contributory Rodriguez, Dr. Judy negligence “defense.” Shepherd-Kegl that only effective communication in medical setting for Plaintiff is in-person interpreter. 21. D28 8004 803(6) (see Relevant to Plaintiff waives any Plaintiff waives objection. certification); Plaintiff’s claim for objections to this Excerpt will be admitted without 901(d)(2)(“spoke worsening/chronic page. objection. with grandmother, pressure ulcers as interpreter…Grandm being caused by care other states she has at BRG; Evidence of kicked out the mother Plaintiff’s continuity and uncle… of care at home and Coordinator is Paula who his caregivers Rodriguez… were, care occurring Grandmother is before, during, after retired and can assist of pressure wounds at by caregivers other home…Grandmother than BRG; relevant to states patient will Plaintiff witness only have a tub, no Paula Rodriguez shower…Grandmoth (employed by er states she will have Plaintiff as case no worker) bias and/or assistance….Grandm conflict of interest vis other unsure of PCP a vis Rodriguez and and states he can use business owned by whatever pharmacy Rodriguez, Deaf we send the Focus. prescriptions to…”); 803(4) (Patient & family providing information regarding continuity of care at home).

22. D28 8006 801(d)(2) (Party Relevant to (1) Fails as Business Motion granted. Foundation admission: “patient Plaintiff’s claim of Record. First, lacking for lay opinion. Also, reports”); 803(6) (see worsening/chronic trustworthiness is at Rule 403. certification); pressure ulcers as issue. There is no 803(4) (OT educated being caused by care evidence that an patient on importance of BRG; instructions interpreter was of trying to stay out re: wound prevention present. Second, no of bed and upright in provided to patient evidence that dealing chair or recliner as via in-person with Deaf individuals much as possible interpreter; relevant is a regular part of the outside therapy hours. to impeachment of Bone and Joint He verbalized testimony by Clinic’s business or understanding and Plaintiff, Paula occupation and that was agreeable to Rodriguez, Leona they had the policies, staying up in chair Deemer, Dr. procedures, and after OT session this Shepherd-Kegl that practices in place to pm until after patient is compliant accurately dinner… patient with instructions communicate with reports through provided through in- Mr. Francois. interpreter he is person interpreter or Further, eating some… that instructions 801(d)(2) and 803(4) declined provided through in- are not applicable supplements”); Non- person interpreter because this is a hearsay: not offered would prevent narrative note by a for truth, offered to worsening/chronic nurse as to what show patient pressure wounds and purportedly occurred provided with wound that instructions (e.g. the nurse prevention provided at BRG generally summarizes instructions. through VRI were that he “verbalized inadequate and understanding”), not caused a specific statement worsening/chronic by Mr. Francois pressure wounds, as patient already (2) Impermissible instructed regarding Expert Testimony. same at prior facility Testimony by an via in person “OT” (occupational interpreter. therapist) that Mr. Francois was “educated” and “verbalized understanding” is not everyday opinion testimony that a lay witness is permitted to offer in Court. Given that the author of this statement will not be called by Defendant as a witness—and will not be testifying in person—Defendant should not be permitted to utilize “back door” expert testimony about Mr. Francois having been educated. This testimony naturally begs the question— when is someone “not educated?”

(3) This out-of- context medical record is not relevant and, to the extent it is relevant, its relevance is outweighed by the danger of unfair prejudice due to the lack of opportunity for cross examination. It is entirely unclear what is meant by the phrase “verbalized understanding.” Does this mean that Mr. Francois spoke eloquently about his condition? Nodded his head? Sat their silently and did not object? Given that Defendant is not calling a witness from this medical appointment, it would appear that the testimony is of nominal or insignificant relevance. Out-of- context, this medical record creates a danger of unfair prejudice. See also, Plaintiff’s argument about Defendant’s comparative fault / contributory negligence “defense.” 23. D28 8007 803(6)(see Relevant to Same basis as D24, p. Motion granted. Foundation certification); (“I also Plaintiff’s claim of 7965. Again, this is lacking for lay opinion. Also, instructed the patient worsening/chronic nothing more than a Rule 403. that he needs to not pressure ulcers as lengthy, out-of-court refuse instruction and being caused by care narrative by a third- demonstration with of BRG; instructions party individual who nursing and re: wound prevention will not be testifying therapy.”); Non- provided to patient in Court. It is hearsay: not offered via in-person impermissible for truth, offered to interpreter; relevant hearsay. show patient to impeachment of See also, Plaintiff’s provided with wound testimony by argument about prevention Plaintiff, Paula Defendant’s instructions. Rodriguez, Leona comparative fault / Deemer, Dr. contributory Shepherd-Kegl, that negligence “defense.” patient is compliant with instructions provided through in- person interpreter or that instructions provided through in- person interpreter would prevent worsening/chronic pressure wounds and that instructions provided at BRG through VRI were inadequate and caused worsening/chronic pressure wounds, as patient already instructed regarding same at prior facility via in person interpreter. 24. D28 8011 801(d)(2) (Party Relevant to Objection. Same Motion granted. Foundation Admission: “patient Plaintiff’s claim of objections as D24, p. lacking for lay opinion regarding nodded head…”); worsening/chronic 7965. nodded head and understood. 803(6)(see pressure ulcers as Also, Rule 403. certification); being caused by care As for Mr. Francois 803(4) (“patient of BRG; instructions “nodding his head,” nodded head that he re: wound prevention Dr. Judge Shepard- understood provided to patient Kegl will discuss importance of via in-person how the “Deaf nod” following a bowel interpreter; relevant does not indicate program, as well as to impeachment of agreement or risk of developing testimony by understanding, but is pressure sores with Plaintiff, Paula merely reflective of a poor positioning in Rodriguez, Leona Deaf individual bed and lack of Deemer, Dr. attempting to follow movement. Shepherd-Kegl, that along and/or be Encouraged patient to patient is compliant compliant. Permitting have more awareness with instructions the speculative of his body’s needs provided through in- statement by an out- with skin checks, person interpreter or of-court declarant proper diet and that instructions that Mr. Francois movement. Patient provided through in- nodding his head and patient’s person interpreter indicated grandmother nodded would prevent understanding will head in understanding worsening/chronic result in a trial- of selfcare needs pressure wounds and withing-a-trial as to upon discharge.”); that instructions what occurred on Non-hearsay: not provided at BRG 5/11/2017. offered for truth, through VRI were offered to show inadequate and See also, Plaintiff’s patient provided with caused argument about wound prevention worsening/chronic Defendant’s instructions. pressure wounds, as comparative fault / patient already contributory instructed regarding negligence “defense.” same at prior facility via in person interpreter. 25. D28 8013 801(d)(2) (Party Relevant to Objection. Same Motion granted. Foundation admission: “patient Plaintiff’s claim of objections as D24, p. lacking for lay opinion. Also 403. verbalized…”); worsening/chronic 7965. 803(6) (see pressure ulcers as certification); being caused by care Defendant admits 803(4) (…bed of BRG; instructions that it is seeking to positioning reviewed re: wound prevention offer this statement as well as skin checks provided to patient “to show patient to check for skin via in-person provided with wound break and to prevent interpreter; relevant prevention pressure areas. Home to impeachment of instructions.” self-care handout testimony by Whether Mr. given and explained Plaintiff, Paula Francois was or was to patient with an Rodriguez, Leona not previously given interpreter Deemer, that patient wound care present...”); Non- is compliant with instructions is the hearsay: not offered instructions provided truth of the matter for truth, offered to through in-person asserted. This is show patient interpreter or that impermissible provided with wound instructions provided hearsay and thus is prevention through in-person not admissible. instructions. interpreter would prevent Further, the vague worsening/chronic narrative statement pressure wounds and that “patient that instructions verbalized” is neither provided at BRG a party admission through VRI were under 801(d)(2) or a inadequate and specific statement caused made for the purpose worsening/chronic of diagnosis under pressure wounds, as 803(4). patient already instructed regarding same at prior facility via in person interpreter. 26. D28 8017 803(6) (see Relevant to Objection. Same Motion granted. 701 Foundation certification); Plaintiff’s claim of objections as D24, p. testimony lacking. Also 403. (“Patient educated on worsening/chronic 7965 and 7967 and pressure relief and pressure ulcers as D25, p. 7970. demonstrated being caused by care wheelchair pushup of BRG; instructions Defendant admits and lateral lean for re: wound prevention that it is seeking to pressure relief. provided to patient offer this statement Educated on via in-person “offered to show frequency and interpreter; relevant patient provided with direction.”); Non- to impeachment of wound prevention hearsay: not offered testimony by instructions” Whether for truth, offered to Plaintiff, Paula Mr. Francois was or show patient Rodriguez, Leona was not previously provided with wound Deemer, Dr. given wound care prevention Shepherd-Kegl that prevention instructions. patient is compliant instructions is the with instructions truth of the matter provided through in- asserted. This is person interpreter or impermissible that instructions hearsay and thus is provided through in- not admissible. person interpreter See also, Plaintiff’s would prevent argument about worsening/chronic Defendant’s pressure wounds and comparative fault / that instructions contributory provided at BRG negligence “defense.” through VRI were inadequate and caused worsening/chronic pressure wounds, as patient already instructed regarding same at prior facility via in person interpreter. 27. D28 8026 801(d)(2) Relevant to Plaintiff waives Plaintiff “waives his objection as (Relational/Party Plaintiff’s claim for objections as to this to this page” except as to Admission: “Spoke worsening/chronic page, but maintains references to Public Housing. It is with Paula with Deaf pressure ulcers as an objection to unclear whether Defendant is Focus, patient’s being caused by care admission of this even offering that part of the grandmother…”); of BRG; evidence of record without the record but, to the extent it is, it is 803(6) (see patient care at home redaction of the excluded as irrelevant and, to the certification); during same time statement “I have extent relevant, unduly 803(4) (Paula frame; relevant to contacted Public prejudicial. The remainder of the suggested I call two bias on part of Housing and Section entry will be admitted without facilities…grandmoth Plaintiff witness 8 and they have objection. er states that she feels Paula Rodriguez as closed the application she has two options, paid case worker on process.” Due to the return to back to her behalf of Plaintiff. highly prejudicial house that needs nature of public work done to prepare assistance programs, for a wheelchair and these statements have her other should be excluded. children move out, or find another rental property that is handicap accessible…Also spoke to Paula to stated that she would send out a request for info on rental properties. Grandmother states she has income…Plan at this time is to discharge home…with support from grandmother.”) 28. D28 8030 801(d)(2) (Relational Relevant to Objection. (1) Motion granted. Irrelevant and to Admission: “Paula Plaintiff’s claim for Hearsay. The vast the extent relevant, it is excluded with Deaf Focus, worsening/chronic majority of this on Rule 403 grounds. patient’s pressure ulcers as record is a narrative grandmother… being caused by care that is offered for the “Paula states…”); of BRG; evidence of truth of the matter 803(6) (see patient care at home asserted by the certification); during same time author, namely, what 803(4) (“Paula states frame; relevant to the out-of-court she has worked with bias on part of declarant Brandi B. Theophilus PCA Plaintiff witness Westerfield did or Services before and Paula Rodriguez as who she spoke can assist with paid case worker on training the PCA if behalf of Plaintiff. (2) No unretained needed. Paula also expert opinion issue. states that counseling services can be (3) Irrelevant and provided and she can unduly prejudicial. get patients set up This entry is with case irrelevant and unduly management services prejudicial because to assist with whether Ms. community resources Rodriguez offered and help patient to—but did not— connect with the actually provide community….Paula training to a personal also states she could care attendant is not a be the liaison relevant fact in this between grandmother case. and BRRH so BRRH See also, Plaintiff’s could contact her argument about the once the patient’s inapplicability of name comes up…and comparative she could assist fault/contributory grandmother in negligence. transitioning patient from outpatient therapy to day neuro.” 29. D28 8031 801(d)(2) (Relational Relevant to Objection. (1) Motion granted. Hearsay and not and Party Admission: Plaintiff’s claim for Hearsay. The vast subject to 803(4) (statements not “patient’s worsening wound, majority of this by patient) or 803(6) (statements grandmother…Paula plaintiff’s claims for record is a narrative of outsider) exceptions. Further, states…Grandmother worsening/chronic that is offered for the irrelevant for the purpose states…Patient pressure ulcers as truth of the matter proffered. states”) being caused by care asserted by the 803(6) (see of BRG; evidence author, namely, what certification); regarding continuity the out-of-court 803(4) of care, caregivers at declarant Brandi B. (“Grandmother states home, and care that Westerfield did or patient’s aunt Gettys occurred during time who she spoke can only help him patient was admitted As to purported four days a month, so to BRG Wound Care. party admissions by now the Plaintiff has Ms. Deemer and Mr. changed to patient’s Francois, Plaintiff cousin’s house… concedes that these Patient states he does statements is not want to go to sufficient specific Darlene’s house, he that Defendant wants to go to Gettys’ should be permitted house. Grandmother to use the page to explained through impeach Ms. Deemer interpreter that he and Mr. Francois, if can’t go to Gettys’ appropriate and house because she somehow relevant. can only keep him four days a month… (2) No unretained Grandmother to expert issues. contact Tasha to arrange for a home (3) Irrelevant and visit prior to patient’s unduly prejudicial. discharge.”) This entry is irrelevant and unduly prejudicial because a disagreement as to Mr. Francois’ housing arrangements prior to Mr. Francois starting his medical treatment at Baton Rouge General has no bearing on whether Defendant provided effective communication or whether Defendant cause Mr. Francois damages. See also, Plaintiff’s argument about Defendant’s comparative fault / contributory negligence “defense.” 30. D28 8032 801(d)(2) (Relational, Relevant to Objection. Same Motion granted. Hearsay and not Party Admission: Plaintiff’s claim for primary basis as D28, subject to 803(4) (statement not “Also spoke with worsening wound, page 8031. by patient) or 803(6) (statement plaintiff’s claims for patient, Paula with worsening pressure Whether a by “outsider”) exceptions. Also Deaf Focus…”); wounds as being GoFundMe 403. 803(6) (see caused by care at campaign was certification); BRG; evidence of started for Mr. 803(4) (“Spoke with continuity of care and Francois has no Tasha with TCP caregivers at home; bearing on whether about workers that relevant to bias on Defendant provided will provide services part of plaintiff effective to patient…if witness Paula communication or approved the services Rodriguez as paid whether Defendant will start 5/19…Paula case worker on behalf caused Mr. Francois has started a of Plaintiff. damages. GoFundMe to help with miscellaneous needs…”) 31. D28 8034 803(6) (see Relevant to Objection. (1) Motion granted. While 803(6) is certification)( Plaintiff’s claims of Hearsay. This is a an exception to first layer of “Action to provide worsening/chronic lengthy, out-of-court hearsay, there is no exception to durable medical pressure wounds as narrative by a third- second layer of hearsay. Also equipment. Hope caused by care at party individual who 403. Rehab to provide BRG; evidence of will not be testifying outpatient therapy. Plaintiff’s continuity in Court. The record TCP to provide in- of care at home and is not trustworthy as home care four hours prior to becoming a there is no indication a day, seven days a patient at BRG, care that an interpreter week.”). given during time of was present to treatment at BRG; interpret for Mr. relevant as Francois. impeachment of 801(d)(2) and Paula Rodriguez’s 803(4) are not testimony that applicable because Plaintiff received no this is a narrative care or support statement by a services at home medical professional following discharge as to what from Our Lady of the purportedly occurred, Lake Regional not a specific Medical Center. statement by Mr. Francois. Thus, it is neither a party admission or “a statement” made for medical diagnosis or treatment. It is impermissible hearsay-within- hearsay.

(2) No unretained expert issues.

(3) Irrelevant and unduly prejudicial. This entry is irrelevant and unduly prejudicial because it creates a “case within a case” where Mr. Francois is obligated to rebut what did/did not happen on 5/16/2017 at Our Lady of the Lake, whether the out-of- court native is accurate, and whether Our Lady of the Lake evaluated his communication needs and preferences. Plaintiff will not be able to cross examine the out-of-court individual who made this out-of-court narrative statement. Finally, the Jury will not hear what—if any—training the OLOL staff have on communicating with Deaf individuals, so the reliability of this record is doubtful. 32. D28 8036 803(6) (see Relevant to Objection. Same Motion granted. Lay witness certification)( Plaintiff’s claim of primary basis as D28, testimony needed for 701 “Discussed worsening/chronic page 8034. foundation which is lacking. Also importance of skin pressure wounds 403. checks for pressure being caused by care sores, increasing at BRG, evidence of movement throughout instructions provided the day and staying to patient prior to active upon becoming patient of discharge.”); Not BRG; relevant to offered for truth, impeachment of rather, evidence that testimony by patient was provided Plaintiff, Paula instruction regarding Rodriguez, Leona prevention of Deemer, Dr. pressure ulcers. Shepherd-Kegl that patient is compliant with instructions provided through in- person interpreter or that instructions provided through in- person interpreter would prevent worsening/chronic pressure wounds and that instructions provided at BRG through VRI were inadequate and caused worsening/chronic pressure wounds, as patient already instructed regarding same at prior facility via in person interpreter. 33. D28 8043 801(d)(2) (Relational Relevant to Objection. Same Motion granted. Lay witness and Party Plaintiff’s claim for primary basis as D28, testimony needed for 701 Admissions: “both worsening/chronic page 8034. foundation and is lacking. Also patient and pressure wounds as 403. grandmother in being caused by care agreement”); at BRG; evidence 803(6) (see regarding patient care certification); at home and prior to 803(4) becoming a patient at (“Grandmother to BRG; relevant to contact Tasha to impeach Paula arrange for home visit Rodriguez’s prior to patient’s testimony that discharge. Social Plaintiff received no worker reviewed the home care services BRRH day neuro following discharge program and from Our Lady of the outpatient therapy at Lake Regional Hope PT. Both Medical Center. patient and grandmother in agreement. Social worker to have MD complete needed paperwork for TCP. Faxed order of the Hope PT with referral.”) 34. D29 8062 803(6) (certification Certification by No objection. No objection. Will be allowed if page). Medical Records other parts of this grouping are Custodian, certified allowed into evidence. Otherwise, copies in course of irrelevant. ordinary business. 35. D29 8066 803(6)(see Relevant to Plaintiff waives any P Waives any objection to this certification page) Plaintiff’s claims of objections to this page. Based on this waiver, (“room very dirty worsening/chronic page. Motion is denied. with human waste, pressure wounds as dirty bandages, trash being caused by care and dirty clothes”). at BRG; evidence of Plaintiff’s care and condition at home during time of treatment and before and after treatment at BRG; relevant to impeachment of testimony of Plaintiff, Leona Demmer, Paula Rodriguez regarding compliance and quality of Plaintiff’s care at home, being compliant with healthcare provider instructions as provided through Plaintiff’s choice in- person interpreter; relevant to impeachment of Plaintiff, Dr. Judy Shepherd-Kegl, Leona Deemer and Paula Rodriguez that Plaintiff understands instructions for home care through in- person interpreter, as well as testimony by Paula Rodriguez that Plaintiff received no home care or services following discharge from OLOL. 36. D30 8067 803(6) (certification Certification by No objection. No objection. Will be allowed if page). Medical Records others in this grouping are Custodian, certified allowed. Otherwise, irrelevant. copies in course of ordinary business. 37. D30 8068 803(6) (certification Certification by No such page This page was provided by page). Medical Records included in Exhibit 4 Defendant in a supplemental Custodian, certified filed with the Court. offering. (Doc. 199-1. It will be copies in course of Plaintiff unable to allowed if others in this grouping ordinary business. object or not object. are allowed. Otherwise, irrelevant. 38. D30 8070 801(d)(2) (Relational Relevant to (1) Plaintiff waives Motion granted. To the extent and Party Plaintiff’s claim that hearsay concerns. these are expert opinions, witness Admissions)(“history only effective not listed and Rule 26 report not provided by patient; communication in (2) Impermissible provided. To the extent that it is history provided by healthcare setting is expert opinion 701 lay opinion testimony, it grandmother”); through in-person testimony. Defendant lacks necessary foundation 803(4) (“chief interpreter; evidence has not disclosed Dr. testimony. In addition, 403. complaint is ‘don’t that Plaintiff presents Andrew D. Calhoun know’ …presents with in-person as an expert. with interpreter and interpreter and is still Nonetheless, grandmother…he is noted to be a poor Defendant seeks to not particularly historian; relevant to offer a record engaged in the impeachment of containing an opinion interview with testimony by Dr. that Mr. Francois was apathetic responses to Shepherd Kegl, suffering from fairly queer questions Plaintiff, Paula “dysphoria” and that with his frequent Rodriguez, Leona he was “not signing “I don’t Deemer that Plaintiff particularly know.” indicates his most effective engaged.” Yet the dysphoria is related to communication in Jury will not receive his injury but does health care setting is explanation as to not elaborate via in-person what constitutes much.”). interpreter only. dysphoria or what constitutes the proper “engagement level.”

(3) Irrelevant and unduly prejudicial. This entry is irrelevant and unduly prejudicial because it creates a “case within a case” where Mr. Francois is obligated to rebut what did/did not happen on 10/19/2017 at Baton Rouge Mental Health, whether the out-of-court native is accurate, etc. without an opportunity to cross examine the author. Given that Defendant is not calling the author, the relevance of this record/medical appointment appears to be of nominal value. See also, Plaintiff’s argument about Defendant’s comparative fault / contributory negligence “defense.” 39. D31 8071 803(6) (certification Certification by No objection. No objection. Will be allowed if page). Medical Records others in this grouping are Custodian, certified allowed. Otherwise, irrelevant. copies in course of ordinary business. 40. D31 8072 803(6) (certification Certification by No objection. No objection. Will be allowed if page). Medical Records others in this grouping are Custodian, certified allowed. Otherwise, irrelevant. copies in course of ordinary business. 41. D31 8074 803(6) (see Relevant to Objection. Same Motion denied. Relevant to the certification)( Plaintiff’s claim for primary basis as wound causation issue. Meets “Patient caregiver worsening/chronic objections D24, p. both 803(4) and 803(6) was instructed on pressure wounds as 7965 and D28, page exceptions to the hearsay rule. how to clean the being caused by care 8034. Because the instructions were patient, especially at BRG; relevant as Further, the given only to grandmother, there around the wound… evidence of other trustworthiness of is no 701 problem and a if and when she wound care provided this record is significantly lessened 403 changes the dressing at same time as that especially suspect. It problem. at home.”); Non- of BRG and is a hand scratched hearsay: not offered following care of note on a blank for truth, offered as BRG. piece of white paper evidence Plaintiff’s lacking letterhead, grandmother/caregive an author, or a r provided with signature. Notes instructions to scratched on non- perform wound care standard medical at home. records do not satisfy the business records exception. Ariza v. Loomis Armored US, LLC, No. CV31300419JWDE WD, 2016 WL 297702, at *4 (M.D. La. Jan. 22, 2016) (“Notes scratched on a pad by a doctor or an email written at a patient’s request are not the kind of official records to which Rule 803(6) applies, for they are too informal and too unique to the individual to be classified as records of a regular business activity.”). This out- of-court narrative by an unknown third- party individual is inadmissible hearsay. 42. D31 8077 803(6) (see Relevant to Objection. (1) Motion denied. Relevant to the certification)( Plaintiff’s claims for Hearsay. This is a wound causation issue. It is not “Patient’s wounds worsening/chronic lengthy, out-of-court hearsay within hearsay and it look good and appear pressure wounds as narrative by a third- meets both 803(4) and 803(6) to be healing. The being caused by care party individual who exceptions to the hearsay rule. wound’s edges of BRG; evidence of will not be testifying Although it is lay opinion appear to be wound care from in Court. It is testimony, it is more in the nature shrinking, other providers impermissible of a description and does not particularly the sacral occurring during the hearsay-within- involve the same issues of wounds…”). time that patient was hearsay and thus is interpretation as the excerpts a patient at BRG; not admissible. involving communication to relevant to impeach 801(d)(2) and Plaintiff. testimony of Plaintiff, 803(4) are not Leona Deemer and/or applicable because Paula Rodriguez that this is a narrative Plaintiff’s wounds summary by a were becoming worse medical professional during Plaintiff’s as to what admission to Baton purportedly occurred Rouge General and of what Mr. Wound Care. Francois purported said. Thus, it is neither a party admission or “a statement” made for medical diagnosis or treatment. It is impermissible hearsay-within- hearsay.

(2) Improper expert testimony. A lay witnesses may, in some circumstances, offer opinion testimony. FED. R. EVID. 701; United States v. Curescu, 674 F.3d 735, 740 (7th Cir. 2012). However, such an opinion requires proper foundation. “[A] witness offering a lay opinion must base his opinion on his own personal knowledge, which must be established to the court and jury. When a witness has not identified the objective bases for his opinion, the proffered opinion obviously fails completely to meet the requirements of Rule 701 because there is no way for the court to assess whether it is rationally based on the witness’s perceptions.” United States v. Garcia, 291 F.3d 127, 140 (2d Cir. 2002). Here, an out-of-court, third party states that “Patient’s wounds look good and appear to be healing.” No foundation has been laid that this physical therapist possesses the necessary education or experience to provide technical testimony as to whether Mr. Francois wounds “looked good” or “were healing.”

(3) Unduly prejudicial. This entry is unduly prejudicial because it creates a “case within a case” where Mr. Francois is obligated to rebut what did/did not happen on July 19, 2017 and whether the out-of-court native is accurate. Plaintiff will not be able to cross examine this out-of-court narrative statement. Finally, the Jury will not hear what—if any—training the Hope Therapy staff have on communicating with Deaf individuals, so the reliability of this narrative is doubtful. 43. D31 8083 803(6) (See Relevant to Objection. Same Motion granted in part and denied Certification)( Plaintiff’s claims of primary basis as in part. Relevant to the wound Therapist suspected worsening/chronic objections D31, p. causation issue. It is not hearsay patient’s cushion pressure wounds as 8077. within hearsay and it meets both might be contributing being caused by care Further, the 803(4) and 803(6) exceptions to to the at BRG; evidence of trustworthiness of the hearsay rule. However, while opening/spreading of other causes of this record is the description of the wound is patient’s bilateral hip wound worsening; especially suspect. It lay opinion testimony, it is more area wound… relevant to impeach is a hand scratched in the nature of a description. The Patient’s wound was testimony of Paula note on a blank motion is granted, however, as to doing a lot better Rodriguez, Plaintiff, piece of white paper the opinion regarding therapist’s until he started sitting and/or Leona Deemer lacking letterhead, “suspicion”. Here foundation is on the J Union that patient’s wounds an author, or a required and there is no witness to wheelchair cushion were becoming worse signature. This out- provide the needed foundational loaned to him by the because of lack of of-court narrative by testimony. wheelchair instruction at BRG an unknown third- company.”). and during time he party individual is was patient of BRG. inadmissible hearsay. See also, Plaintiff’s argument about Defendant’s comparative fault / contributory negligence “defense.” 44. D31 8096, 801(d)(2) (“Patient Relevant to Objection. (1) Motion granted. It is hearsay and 8097 reported”); 803(6) impeachment of Hearsay and does not there is no signature by the record (see certification); Plaintiff, Leona qualify as a business keeper or other indication of who 803(4) (“Patient Deemer, Dr. record. This narrative made the record. Furthermore, it reported he felt very Shepherd-Kegl is scratched, in part, carries the same 701 and 403 sad and depressed and/or Paula on a blank piece of concerns expressed elsewhere. every time he goes to Rodriguez’s paper See the wound clinic, testimony that Francois_GHS08097. because they keep Plaintiff did not Plaintiff further notes scraping on his understand BRG that wounds, especially Wound Care Francois_GHS08096 his bilateral hip area appointments, did not bears a signature line, wound and its very understand but the record is painful. Patient also debridement, and unsigned. There is reported that they testimony from same no indication of who want him to go to the that Plaintiff did not even created this hospital for 21 days understand that he record. to treat his wounds in received an inpatient recommendation to 801(d)(2) and basis…”). Non- consider treatment 803(4) are not hearsay: prior for his wounds in an applicable because inconsistent statement inpatient care setting. this is a narrative by Plaintiff. summary by a medical professional as to what purportedly occurred and of what Mr. Francois purported said. Thus, it is neither a party admission or “a statement” made for medical diagnosis or treatment. It is impermissible hearsay.

(2) Same expert issue as D31, p. 8077.

(3) Unduly prejudicial. This entry is unduly prejudicial because it creates a “case within a case” where Mr. Francois is obligated to rebut what did/did not happen on August 30, 2017 and whether the out-of-court native is accurate. Plaintiff will not be able to cross examine this out-of-court narrative statement. Finally, the Jury will not hear what—if any—training the Hope Therapy staff have on communicating with Deaf individuals, so the reliability of this narrative is doubtful.

See also, Plaintiff’s argument about Defendant’s comparative fault / contributory negligence “defense.”

45. D31 8104 803(6) (see Relevant to Objection. Same Motion granted. Lacks 701 certification)( “Has Plaintiff’s claim of essential objection as foundational testimony and is also been sitting on a hard worsening/chronic D31, p. 8077. excluded under Rule 403. surface rather than his pressure wounds as bed or his wheelchair, being caused by care Further, this is clearly so patient was of BRG; evidence of offered for the truth instructed to avoid Plaintiff non- of the matter sitting on hard compliance with asserted, namely, surfaces especially instructions by whether Mr. Francois for a prolonged caregiver regarding was instructed “to period of time.”); wound prevention; avoid sitting on hard Non-hearsay: offered relevant to surfaces…” as evidence Plaintiff impeachment of given instruction Plaintiff, Leona See also, Plaintiff’s regarding prevention Deemer, Paula argument about of pressure wounds. Rodriguez and Dr. Defendant’s Shepherd Kegl that comparative fault / most effective contributory communication of negligence “defense.” Plaintiff is through in-person interpreter, evidence that Plaintiff is repeatedly educated through in- person interpreter and exhibits non- compliance.

46. D31 8111 803(6) (See Relevant to Objection. Same Motion granted. Lacks 701 Certification)( Plaintiff’s claim of essential objection as foundational testimony and is also “Patient is aware and worsening/chronic D31, p. 8077. excluded under Rule 403. often reminded that pressure wounds as he needs to perform being caused by care pressure relief of BRG; evidence of Further, this is clearly frequently in sitting Plaintiff non- offered for the truth position between compliance with of the matter every 30 minutes to instructions by asserted, namely, an hour.”); Non- caregiver regarding whether a hearsay: offered as wound prevention; conversation evidence Plaintiff relevant to occurred on given instruction impeachment of 11/13/2017 where regarding prevention Plaintiff, Leona Mr. Francois was of pressure wounds. Deemer, Paula purportedly given Rodriguez and Dr. instruction regarding Shepherd Kegl that prevention of most effective pressure wounds. communication of Plaintiff is through See also, Plaintiff’s in-person interpreter, argument about evidence that Defendant’s Plaintiff is repeatedly comparative fault / educated through in- contributory person interpreter and negligence “defense.” exhibits non- compliance.

47. D31 8120 – 801(d)(2)(Party Relevant to impeach Objection. Same Motion granted. Lacks 701 8121 Admission) and testimony of Plaintiff, essential objection as foundational testimony and is also 803(4): (“He reported Paula Rodriguez, D31, p. 8096-97. excluded under Rule 403. that he had blood Leona Deemer, and clots and was Plaintiff expert Dr. hospitalized…patient Shepherd-Kegl that also reported that he Plaintiff does not is now a blood understand his thinner medication. medical treatment Patient also stated and does not that he was also understand his experiencing treatment while a shortness of breath patient at BRG; while laying down Plaintiff admitted to before he went to the BRG immediately hospital, but he is no prior to this wound longer experiencing care visit. See Joint shortness of breath.”); Exhibit 17. 803(6)(see certification); Non- hearsay: prior inconsistent statement by Plaintiff.

48. D31 8148 803(6) (see Relevant to Objection. Same Motion granted. Lacks 701 certification)( Plaintiff’s claims of essential objection as foundational testimony and is also “Patient was again worsening/chronic D31, p. 8077. excluded under Rule 403. reminded that he pressure wounds as needs to avoid sitting being caused by care Further, this is clearly continuously for over of BRG; evidence of offered for the truth 2 hours in order to Plaintiff non- of the matter promote the healing compliance with asserted, namely, of his ischium instructions by whether a wound.”); Non- caregiver regarding conversation hearsay: not offered wound prevention; occurred on for truth, offered as relevant to 4/11/2018 where Mr. evidence Plaintiff impeachment of Francois was given received instruction Plaintiff, Leona instruction siting in regarding prevention Deemer, Paula one place and its of pressure wounds. Rodriguez and Dr. impact on wound Shepherd Kegl that healing. most effective communication of See also, Plaintiff’s Plaintiff is through argument about in-person interpreter, Defendant’s evidence that comparative fault / Plaintiff is repeatedly contributory educated through in- negligence “defense.” person interpreter and exhibits non- compliance.

49. D31 8156 – 803(6) (see Relevant to Objection. Same Motion granted in part and denied 8157 certification)( Plaintiff’s claims of essential objection as in part. Motion denied as to “Patient developed worsening/chronic D31, p. 8096-97. statement that “Patient developed pseudo-irritated pressure wounds as pseudo-irritated area adjoined to area…ischium area being caused by care See also, Plaintiff’s the ischium area wound” for wound because of BRG; evidence of argument about reasons given in the Court’s patient was sitting for Plaintiff non- Defendant’s ruling on excerpt 43. The motion a long period of time, compliance with comparative fault / is granted as to the remainder of possibly in his car instructions by contributory the excerpt, beginning with without his cushion. caregiver regarding negligence “defense.” “because patient was sitting, etc.” Patient was strongly wound prevention; Lacks 701 foundational testimony advised to avoid relevant to and is also excluded under Rule prolonged sitting impeachment of 403. without his ROHO Plaintiff, Leona cushion so that he Deemer, Paula would not cause Rodriguez and Dr. further complications Shepherd Kegl that to his ischium area most effective wound…Patient was communication of instructed to spend Plaintiff is through more time on his in-person interpreter, prone in order to keep evidence that the wound from being Plaintiff is repeatedly further irritated.”); educated through in- Non-hearsay: not person interpreter and offered for truth, exhibits non- offered as evidence compliance. Plaintiff received instruction regarding prevention of pressure wounds.

50. D31 8164 801(d)(2)(Party Relevant to Objection. Same Motion granted. Lacks 701 Admission) and Plaintiff’s claims of essential objection as foundational testimony and is 803(4): (“Patient worsening/chronic D31, p. 8077. excluded under Rule 403. reported that he took pressure wounds as his antibiotic being caused by care This statement is medication only once of BRG; evidence of merely an out-of- per day over the Plaintiff non- court narrative by an weekend.”); compliance with individual who will 803(6) (see instructions by not be testifying at certification) caregiver regarding trial. wound prevention; relevant to See also, Plaintiff’s impeachment of argument about Plaintiff, Leona Defendant’s Deemer, Paula comparative fault / Rodriguez and Dr. contributory Shepherd Kegl that negligence “defense.” most effective communication of Plaintiff is through in-person interpreter, evidence that Plaintiff is repeatedly educated through in- person interpreter and exhibits non- compliance.

51. D31 8188 803(6) (see Relevant to Objection. Same Motion denied for reasons given certification)( Plaintiff’s claim of essential objection as by the Court in connection with “Patient showed worsening/chronic D31, p. 8077. excerpt 43 increased bleeding pressure wounds as from his bilateral big being caused by care This statement is toes when he arrived at BRG; evidence of merely an out-of- in therapy Plaintiff’s care at court narrative by an today…Patient’s home with individual who will bilateral big toes had caregivers; relevant not be testifying at ingrown toenails and to impeachment of trial. open areas around the testimony by edges of the toenails. Plaintiff, Leona Patient’s feet were Deemer, Paula atrociously dirty…”). Rodriguez that Plaintiff received regular care at home for wounds per instructions provided to Plaintiff and caregivers. 52. D31 8214 803(6) (see Relevant to Objection. Same Motion denied. While it does certification)(“…Pati Plaintiff’s claim for essential objection as express a lay opinion, it is more ent is also showing worsening/chronic D31, p. 8077. in the nature of a description and improvement of his pressure wounds as so 701 and 403 concerns are left ischium area being caused by care This statement is lessened. The Court exercises its wound, his wounds of BRG; evidence merely an out-of- discretion to allow into evidence. surface is healing on that Plaintiff court narrative by an the wound bed and remained patient of individual who will around the edges.”. Hope Therapy not be testifying at specifically for trial. wound care treatment through March 19, 2019. 53. D33 8218 801(d)(2)(Relational Relevant to (1) Plaintiff waives Motion granted. 701 lay opinion and party admissions Plaintiff’s any hearsay issues. foundation testimony is lacking “patient presents with compliance with and, in addition, excluded under grandmother, wound care (2) Plaintiff waives Rue 403. translator…”); instructions provided any expert issues. 803(4) (Patient through in-person presents in office interpreter and (3) Irrelevant and with his translator, impeachment of any unduly prejudicial. grandmother, and Plaintiff witness This page does not care manager for testimony that (1) appear to be dated, so Medicaid. Patient Plaintiff compliant its relevance cannot presents to begin with instructions be meaningfully wound care, with through in-person evaluated. Further, facility…he is deaf, interpreters and (2) this entry is irrelevant presents with Plaintiff’s most and unduly translator paid for by effective prejudicial because it Medicaid, previously communication in creates a “case within getting wound care at medical setting is a case” where Mr. Baton Rouge through in-person Francois is obligated General, states that he interpreter. Relevant to rebut what did/did stopped going to impeachment of not happen at the because he was Plaintiff, Leona Infectious Disease bleeding a lot when Deemer, Dr. Judy Associates on an he was debrided, Shepherd-Kegl and unknown date. grandmother was Paula Rodriguez Plaintiff will not be educated that patient testimony that able to cross examine needs to increase his Plaintiff did not the out-of-court (and protein in the amount understand unknown) individual of meat that he eats, circumstances of who made this out- patient was educated discharge from BRG of-court narrative that he needs to drink Wound Care or care statement. Finally, Ensure, states that he occurring at BRG the Jury will not hear does not like Ensure Wound Care. what—if any— the chocolate, he does training the unknown not like to take individual had on vitamins as well, working on patient is in the communicating with process of getting a Deaf individuals, so personal care the reliability of this attendant, we record is doubtful. educated that to heal he would need Zinc, See also, Plaintiff’s Vitamin C”); argument about 803(6) (see Defendant’s certification page). comparative fault / contributory negligence “defense.” 54. D33 8228 801(d)(2) (Patient Relevant to Objection. Same Motion granted. 701 lay opinion states); Plaintiff’s claims of primary basis as D28, foundation testimony is lacking 803(4) (Patient states worsening/chronic page 8034. and, in addition, excluded under he comes to the office pressure wounds as Rue 403. but does not want to being caused by care See also, Plaintiff’s get out of the car, at BRG; evidence of argument about patient was educated Plaintiff compliance Defendant’s that we cannot help with care following comparative fault / him if he does not discharge from BRG contributory want to get out the Wound Care as negligence “defense.” car and attend wound alternate cause of care…patient states chronic wounds. ‘he is need of wound care supplies’); 803(6) (see certification page). 55. D34 8297 803(6) (certification Certification by No objection. No objection. Will be allowed if page) Medical Records another document in this Custodian, certified grouping is allowed. Otherwise copies in course of irrelevant. ordinary business. 56. D34 8302 803(6) (certification Relevant to Objection. Same Motion granted. Irrelevant. In page)( Physician Plaintiff’s claim that primary basis as D28, addition, it is hearsay and does record in relation to pressure ulcers are page 8034. not fit into the 803(4) exception the Louisiana caused by care and (statements not by patient) or Department of Health treatment at BRG; 803(6) (does not appear to be a traumatic head and relevant to record of a regularly conducted spinal cord injury impeachment of activity. In addition, to the extent trust fund application, Plaintiff, Leona it has any minimal relevance, making application Deemer, Paula 403. on the basis that Rodriguez testimony Plaintiff has medical that Plaintiff seeks issues resulting from damages for pressure gunshot wound injury ulcers that are result including pressure of BRG care. ulcers).

57. D34 8303 803(6) (see Relevant to Objection. Same This is page 2 of preceding certification page)( Plaintiff’s claim that primary basis as D28, document. Motion granted. Physician record in pressure ulcers are page 8034. Irrelevant. In addition, it is relation to the caused by care and hearsay and does not fit into the Louisiana treatment at Baton 803(4) exception (statements not Department of Health Rouge General by patient) or 803(6) (does not traumatic head and Wound Care; appear to be a record of a spinal cord injury relevant to regularly conducted activity). In trust fund application, impeachment of addition, to the extent it has any making application Plaintiff, Leona minimal relevance, 403. on the basis that Deemer, Paula Plaintiff has medical Rodriguez testimony issues resulting from that Plaintiff seeks gunshot wound injury damages for pressure including pressure ulcers that are result ulcers). of BRG care.

58. D34 8305 801(d)(2) (Relational, Relevant to Objection. Same Motion is granted. This is from Party Plaintiff’s claim for primary basis as D28, Caresouth Medical Dental. No Admissions)(“his worsening/chronic page 8034. certification sheet and no obvious grandmother says”); pressure ulcers as author. The grandmother’s 803(4) (“his being caused by care Further, there is no statement is hearsay within grandmother says that at BRG; evidence of indication that Ms. hearsay and, because it is not the patient has not been Plaintiff non- Deemer had the patient’s statement, the Rule taking his antibiotic compliance as necessary foundation 803(6) exception does not apply. as directed”); alternate cause of or knowledge to state Defendant did not establish 803(6) (see chronic wounds; that Mr. Francois had grandmother’s status for certification page). relevant to any “not been taking his relational party admission. It is Plaintiff witness antibiotic as also excluded under Rule 403. testimony that directed.” Again, this Plaintiff is compliant creates a case-within- with health care a-case that will have provider instructions to be litigated. relative to prevention of pressure wounds, See also, Plaintiff’s including instructions argument about provided by in- Defendant’s person interpreters. comparative fault / contributory negligence “defense.”

Signed in Baton Rouge, Louisiana, on May 11, 2020.

S

JUDG E JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA