United States District Court, D. Minnesota
MARK JACKSON and LYNNETTE JACKSON, husband and wife, Plaintiffs,
GARY L. KEENEY, M.D., MAYO CLINIC, a Minnesota Corporation, and MAYO COLLABORATIVE SERVICES, LLC, d/b/a MAYO MEDICAL LABORATORIES, Defendants.
ORDER ON MOTIONS IN LIMINE
E. Brasel United States District Judge
in this case is set to start April 1, 2019. The Court held a
pre-trial conference on March 26, 2019, during which the
Court considered eight Motions in Limine filed by Plaintiffs
Mark and Lynnette Jackson,  [ECF Nos. 64, 67, 70, 73, 76],
and three Motions in Limine filed by Defendants Gary L.
Keeney, M.D., Mayo Clinic, and Mayo Collaborative Services,
LLC (collectively “Defendants”), [ECF No. 87].
Also before the Court is Plaintiffs' Motion for
Attorney-Conducted Voir Dire. [ECF No. 63.] The Court makes
the following rulings to apply to trial.
Plaintiffs' Motion for Attorney-Conducted Voir
initial matter, Plaintiffs move the Court for
attorney-conducted voir dire. Though the Court
recognizes Plaintiffs' arguments under the ABA's
Principles for Juries and Trials cited in their brief,
Fed.R.Civ.P. 47(a) provides that “[t]he court may
permit the parties or their attorneys to examine prospective
jurors or may itself do so.” Here, the parties have
submitted proposed voir dire that the Court has
incorporated into its voir dire. The parties will
also be afforded the opportunity to request that the Court
ask additional questions during the jury selection process.
Plaintiffs' motion is denied.
Plaintiffs' Motions in Limine
Motion to Exclude Hearsay Comment in Medical Record
their first Motion in Limine, Plaintiffs move the Court for
an order excluding the following sentence from the medical
record: “As I mentioned in my telephone conversation, I
agree with your diagnosis of non-small cell carcinoma.”
Dr. Gary Keeney included this sentence as a diagnosis comment
in his written report of his original diagnosis, which he
sent to Dr. Steven Baker, Jackson's treating physician.
argue that Dr. Keeney's written report itself is hearsay
and that the statement in question is hearsay within hearsay
violating Rules 801 and 802 of the Federal Rules of Evidence.
Defendants argue that Dr. Keeney's written statement is
not hearsay because it is not being offered to prove the
truth of the matter asserted and, even if it is hearsay, the
statement at issue falls under several exceptions to the
hearsay rule including: (1) Rule 803(6), which allows records
of a regularly conducted activity (e.g. medical records) to
be admitted; (2) Rule 803(4), which allows statements made
for medical diagnosis or treatment; and (3) Rule 803(5),
because the written statement qualifies as a “recorded
recollection.” [ECF No. 98.] Additionally, Defendants
argue that Dr. Keeney's written statement is admissible
under Rule 807.
evidence is generally excluded from testimony. Fed.R.Evid.
802. But exceptions to the hearsay rule include records of a
regularly conducted business activity, recorded recollection,
or a statement made for medical diagnosis or treatment.
See Fed. R. Evid. 803(4) - (6). Here, even if Dr.
Keeney's written statement is hearsay, it clearly falls
under Fed.R.Evid. 803(4) and 803(6), as a statement made for
medical diagnosis or treatment and a record of a regularly
conducted activity. Plaintiffs' motion to exclude Dr.
Keeney's written statement is denied.
Motion Regarding After-the-Fact Diagnosis
their second Motion in Limine, Plaintiffs seek to exclude
evidence and testimony from Dr. Syed Kazmi about his review
of Jackson's pathology slides three days after the
removal of Jackson's lung, and to exclude Dr. Kazmi's
corresponding pathology report. Plaintiffs argue that Dr.
Kazmi's diagnosis is not relevant and should be excluded
under Fed.R.Evid. 402 and 403. Plaintiffs further argue that
Dr. Kazmi's diagnosis would be duplicative and should be
excluded because it was not conducted under substantially
similar circumstances as the initial diagnosis. See
Nesbitt v. Sears, Roebuck & Co., 415 F.Supp.2d 530,
535-36 (E.D. Pa. 2005). Defendants argue that Dr. Kazmi's
testimony is relevant and that Plaintiffs' arguments go
to the weight and credibility of Dr. Kazmi's testimony,
not to its relevance or admissibility.
the Nesbitt case cited by the Plaintiffs is
inapposite because it is a products liability case dealing
with whether prior accidents concerning the same product
could be admitted into evidence to establish the dangerous
nature of that particular product. See 415 F.Supp.2d
at 535. Second, exclusion under Rule 403 is “an
extraordinary remedy and should be used sparingly.”
Westcott v. Crinklaw, 68 F.3d 1073, 1077-78 (8th
Cir. 1995) (citing Hogan v. American Tel. & Tel.
Co., 812 F.2d 409, 411 n.2 (8th Cir. 1987). Here, the
testimony of Dr. Kazmi is relevant and it does not meet the
standard for exclusion under Rule 403. Dr. Kazmi's
testimony and diagnosis does not risk confusing the jury and
it not duplicative. Dr. Kazmi came to his diagnosis as part
of a routine review, and his process will be allowed to be
presented to the jury. Plaintiffs' Motion in Limine
seeking to exclude Dr. Kazmi's testimony and diagnosis is
Motion to Exclude ...