1:18-cv-03578
S.D. Ind.Jul 15, 2021Background
- Plaintiff Amy Anderson alleges that a large Qdoba outdoor table umbrella struck her head in May 2017, causing injuries; she sued Qdoba for negligence.
- In 2018 Anderson was in a car accident and received medical treatment; Qdoba seeks to introduce those records to challenge causation and extent of injuries.
- Anderson moved to exclude: (a) evidence of the 2018 car accident and related medical records, (b) medical bills/payments, and (c) other categories; Qdoba filed reciprocal motions in limine.
- Qdoba moved to exclude (a) an unidentified bystander shouting “No, No, No,” (b) two internal loss reports as hearsay, (c) portions of former-employee Gonzalo Hernandez Venegas’s deposition, and (d) expert Bryan Rappolt’s deposition testimony.
- Court addressed relevance, privilege (patient–physician implied waiver), hearsay exceptions (excited utterance, former testimony, business records), and expert-disclosure rules (Fed. R. Civ. P. 26).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of 2018 car-accident records for similar/dissimilar injuries | Records irrelevant and prejudicial; unrelated to shoulder injury | Records relevant to causation; expert will link car-accident injuries to claimed damages | Denied exclusion; records admissible if linked by competent medical testimony |
| Admissibility of car-accident treatment records unrelated to claimed conditions; privilege | Records privileged/waived not broadly; not consented for unrelated care | Medical history relevant; implied waiver since physical condition is at issue | Denied exclusion; implied waiver applies and records are not privileged |
| Medical bills/payments, adjustments, write-offs | Anderson withdrew claims for past medical expenses; bills irrelevant, prejudicial, collateral-source protected | Bills relevant to injury extent; Medicare lien exists | Granted exclusion of medical bills as cumulative, prejudicial, potentially collateral-source violating (provisional) |
| Unidentified bystander yelling “No, No, No” | Admissible as excited utterance hearsay exception | Inadmissible hearsay; declarant’s knowledge of event unknown | Excluded; plaintiff failed to show the declarant observed event or made statement under stress related to it |
| Qdoba internal loss reports and former employee deposition | Reports admissible; employee deposition admissible as former testimony | Reports are hearsay and not business records; seeks to exclude depositions/report | Deposition of former employee admissible under former-testimony exception; loss reports excluded as not within business-records exception |
| Admission of expert Bryan Rappolt’s deposition (disclosure/supplementation objections; altered exhibits) | Disclosures and report were timely and sufficient; file produced; exhibits only had highlights removed | Late supplementation and massive file withheld; exhibits altered; unfair surprise | Overruled objections; Rappolt deposition admissible — no substantial Rule 26 prejudice shown and exhibit tweaks did not change substance |
Key Cases Cited
- United States v. Tokash, 282 F.3d 962 (7th Cir. 2002) (purpose and utility of motions in limine)
- Jenkins v. Chrysler Motors Corp., 316 F.3d 663 (7th Cir. 2002) (district court has broad evidentiary discretion on motions in limine)
- Couch v. Wal-Mart Stores, Inc., 191 F.3d 455 (7th Cir. 1999) (prior similar injuries admissible for substantive and impeachment purposes)
- O'Shea v. Jewel Tea Co., 233 F.2d 530 (7th Cir. 1956) (admissibility of prior accident evidence)
- Flores v. Gutierrez, 951 N.E.2d 632 (Ind. Ct. App. 2011) (prior accident testimony relevant where it could be inferred injury attributable to prior event)
- Doherty v. Purdue Properties I, LLC, 153 N.E.3d 228 (Ind. Ct. App. 2020) (implied waiver of patient–physician privilege when condition is placed in issue)
- Canfield v. Sandock, 563 N.E.2d 526 (Ind. 1990) (discussion of waiver of privilege)
- Owen v. Owen, 563 N.E.2d 605 (Ind. 1990) (narrow exception preserving privilege for highly intimate/irrelevant records)
- United States v. Vargas, 689 F.3d 867 (7th Cir. 2012) (elements for excited-utterance hearsay exception)
- Jordan v. Binns, 712 F.3d 1123 (7th Cir. 2013) (litigation generally not a regularly conducted business activity for business-records exception)
- Ciomber v. Coop. Plus, Inc., 527 F.3d 635 (7th Cir. 2008) (purpose of Rule 26 expert disclosures to provide pre-deposition notice)
- Gicla v. United States, 572 F.3d 407 (7th Cir. 2009) (untimely expert disclosure may be harmless if prejudice not shown)
- In re Air Crash Disaster Near Chicago, Ill., On May 25, 1979, 803 F.2d 304 (7th Cir. 1986) (federal courts sitting in diversity must apply state collateral-source rule)