The opinion of the court was delivered by: John A. Woodcock, Jr. Chief United States District Judge
ORDER ON DEFENDANT DAVID KAPLAN, M.D.'S MOTION IN LIMINE TO EXCLUDE A JULY 5, 2007 LETTER FROM ELSAYED HUSSEIN, M.D.
The Court grants a motion in limine to exclude a physician letter on the ground that it is inadmissible under Rule 403 of the Federal Rules of Evidence.
On October 29, 2010, Defendant David Kaplan, M.D. moved in limine to exclude from evidence a letter dated July 5, 2007 from Elsayed Hussein, M.D. on the ground that "it is inadmissible hearsay, it remains unauthenticated, it comes from a person not designated as an expert witness on causation, it lacks foundation, it is irrelevant, it would be cumulative, and it is otherwise unreliable." Def. David Kaplan, M.D.'s Mot. in Limine to Exclude July 5, 2007 Letter From Elsayed Hussein, M.D. at 1 (Docket # 62) (Def.'s Mot.). On November 18, 2010, Mr. Samaan objected, arguing that the letter is admissible. Pl.'s Mem. in Opp'n. to Def. Kaplan's Mot. in Limine to Exclude July 5, 2007 Letter From Elsayed Hussein, M.D. (Docket # 73) (Pl.'s Opp'n.).
The contested letter reads:
Anton Samaa (sic) is a fifty-six year old patient of mine. He suffers from left side paralysis and severe depression resulting from a massive stroke on January 16, 2006. The symptoms of the stroke began at 11:20 a.m. on a flight from Egypt to New York. The patient was rushed to St. Joseph's Hospital at 12:40 a.m. following the emergency landing made by the captain in Maine at 12:10. The patient should have received a TPA shot which if given 3 hours window (sic) before 2:20 a.m. should have saved his left side from paralysis and prevented the suffering of the patient and his family. The above patient is very depressed and unable to work. If you have any questions feel free to contact me at [telephone number redacted]. Def.'s Mot. Attach. 1.
Dr. Hussein's letter contains inadmissible hearsay and is inadmissible under Rule 403. FED. R. EVID. 403. The Court grants the Defendant's motion in limine.
Dr. Hussein's letter is hearsay since it is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," FED. R. EVID. 801(c), and hearsay testimony is generally inadmissible. FED. R. EVID. 802. Mr. Samaan says that though hearsay, the letter is admissible as a statement for purposes of medical diagnosis or treatment. Pl.'s Opp'n at 4-5 (citing FED. R. EVID. 803(4)). Mr. Samaan explains that Dr. Hussein's letter was written "at a time when he was applying for various medical and disability benefits, in order to have a payor for his future, ongoing medical treatment and expenses." Id. at 5. He states that the "diagnosis pertains specifically to the extent of such further treatment, and Mr. Samaan's need for financial assistance due to the extent of his disability and inability to work as a result." Id.
The following are not excluded by the hearsay rule, even though the declarant is unavailable as a witness:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
FED. R. EVID. 803(4). The first problem with the July 5, 2007 letter is that the source of the information in the letter is unclear. "To fall within the exception, the statement must be obtained from the person seeking treatment, or from someone with a special relationship to the person seeking treatment, such as a parent." 5 JOSEPH M. MCLAUGHLIN, JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S
FED. EVID. 802.06 (2d ed. 2010). "This exception is premised on the theory that a patient's statements to her physician are likely to be particularly reliable because the patient has a self-interested motive to be truthful: She knows that the efficacy of her medical treatment depends upon the accuracy of the information she provides to the doctor." United States v. Tome, 61 F.3d 1446, 1449 (10th Cir. 1995). Here, the July 5, 2010 letter does not clarify the source of the patient history, whether it was from the patient, another medical record, an attorney, or a third party. As Mr. Samaan has ...