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Jackson v. Keeney

United States District Court, D. Minnesota

March 28, 2019

MARK JACKSON and LYNNETTE JACKSON, husband and wife, Plaintiffs,
v.
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

          Nancy E. Brasel United States District Judge

         Trial 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, [1] [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.

         ANALYSIS

         I. Plaintiffs' Motion for Attorney-Conducted Voir Dire

         As an 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.

         II. Plaintiffs' Motions in Limine

         1. Motion to Exclude Hearsay Comment in Medical Record

         In 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.

         Plaintiffs 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.

         Hearsay 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.

         2. Motion Regarding After-the-Fact Diagnosis

         In 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.

         First, 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 denied.

         3. Motion to Exclude ...


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