Francois v. Gen. Heatlh Sys.

Full title: DAMIAN FRANCOIS v. GENERAL HEATLH SYSTEM

Court: UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Date published: May 11, 2020

C.A. NO.: 3:17-CV-522-JWD-RLB (M.D. La. May. 11, 2020)

Opinion

C.A. NO.: 3:17-CV-522-JWD-RLB

05-11-2020

DAMIAN FRANCOIS v. GENERAL HEATLH SYSTEM

JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

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

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.)

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 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).

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.)

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.

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.

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 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.

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.

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

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.)

5 The Court does not include the items where Plaintiff waived his hearsay objection.

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 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 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.

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.)

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 impeachment if it is inadmissible as hearsay or on other grounds. As one noted commentator stated:

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).

[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 -Bone &JointClinicRecords	7963	803(6)(certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	Plaintiff waivesobjections.	P does not object. Court willadmit if there are any other Boneand Joint records admitted. If not,document is not relevant.
2. D24	7964	803(6) (seecertification Page)("discharged fromOLOL Rehab on5/17, being cared forby cousin, grandma,no home health, nowound care...).	Relevant toPlaintiff's claims ofworsening/chronicpressure ulcers asbeing caused by careof BRG; evidence ofcare of Plaintiff, aparaplegic, at homeduring timeimmediately prior toadmission to BRG.	Plaintiff waivesobjections.	P does not object. Will beadmitted.
3. D24	7965	801(d)(2)(PartyAdmission); 803(4)("Feels nauseous this	Relevant toPlaintiff's claimregarding preferredmode of	Objection. (1) Failsas Business Record.First, trustworthinessis at issue. There is	Motion granted. Foundationrequired for 701 lay opinion. Alsoexcluded on Rule 403 grounds.

		morning with sameback pain...");803(6)(seecertificationcage)("Patient in bedcommunication withdry erase board" isnon-hearsay.	communication. Notoffered to proveeffectiveness orquality ofcommunication withdry erase board.Rather, relevantthat patient is usingdry erase board asopposed to in-person interpreterduring an inpatienthospitalization. SeeComplaint, ExpertReport andDeposition of Dr.Judy Shepherd-Kegl,Plaintiff alleges thatpreferred mode ofcommunication is in-person interpreter.	no evidence that aninterpreter waspresent. Second, noevidence that dealingwith Deaf individualsis a regular part of theBone and JointClinic's business oroccupation and thatthey had the policies,procedures, andpractices in place toaccuratelycommunicate withMr. Francois usingthe communicationmodality purportedlyemployed (in thiscase a "dry eraseboard").Further,801(d)(2) and 803(4)are not applicablebecause this is anarrative note by anurse as to whatpurportedly occurred(e.g. the nurse used a"dry erase board"),not a specificstatement by Mr.Francois.(2) There is no expertopinion issue.(3) Irrelevant andunduly prejudicial.Defendant seeks toargue that its use of awhite board isacceptable becauseanother provider "didit too," but this theoryis not supported byany case law orregulatory authorityunder Title III of theADA, theRehabilitation Act, orSection 1557 of theACA. Permitting theadmission of this"evidence" wouldcreate a "case withina case" where Mr.

				Francois is obligatedto rebut what did/didnot happen on4/14/2017 at theBone and JointClinic, whether useof a "dry eraseboard" wasappropriate at saidappointment, andwhether the Bone andJoint Clinic evaluatedhis communicationneeds andpreferences.Additionally,Defendant is notcalling the author ofthis out-of-courtstatement, furtherundermining itsrelevance. The Jurywill not hear what—if any—training theBone and Joint Clinicstaff have on using a"dry erase board" tocommunicate withDeaf individuals.Instead, the Jury willbe left to speculateabout this"evidence." Thus,this record is undulyprejudicial andshould be excluded.
4. D24	7966	801(d)(2) (PartyAdmissions);803(4) ("he states hehas a headache...");803(6) (seecertification page);"All informationobtain throughwritten board topatient" is non-hearsay.	Relevant toPlaintiff's claimregarding preferredmode ofcommunication. Notoffered to proveeffectiveness orquality ofcommunication withdry erase board,rather relevant thatpatient is using dryerase board asopposed to in-person interpreterduring an inpatientstay with ahealthcare provider.See Complaint,Expert Report and	Same basis as D24, p.7965. Again, this isoffered for the truthof the matterasserted, specifically,that communicationeffectively occurredthrough a writtenboard.Plaintiff notes thatwhat communicationmodalities thatanother providerused—withoutconsulting Mr.Francois—does notmean that saidmodalities are in anyway indicative or	Motion granted. Headache isirrelevant; Foundation bytestimony is required for 701 layopinion. Also Rule 403.

			Deposition of Dr.Judy Shepherd-Kegl,Plaintiff alleges thatpreferred mode ofcommunication is in-person interpreter.	relevant to Mr.Francois'"preference."Admission of thisrecord will create acase-within-a-casewhere Mr. Francois isobligated to litigatewhat happened on4/11/2017 andwhether saidaccommodation washis preference underthe circumstances, allwithout the benefit ofcross examining themedical professionalwho wrote down theout of court statementthat information wasobtained from Mr.Francois through"written board topatient."
5. D24	7967	803(6)(seecertification);("History wasobtained by writingquestions andinterviewinggrandmother.")	Relevant toPlaintiff's claim thatin-person interpreteris preferred mode ofcommunication;Relevant toPlaintiff's claim thathe is illiterate.Evidence ofcommunication withPlaintiff throughwritten questions.Not offered to proveeffectiveness orquality ofcommunication withPlaintiff. Rather,relevant thatPlaintiff noted touse writtenquestions. Relevantto impeachment oftestimony byPlaintiff, LeonaDeemer, PaulaRodriguez, Dr. JudyShepherd Kegl thatPlaintiff is illiterate.	Objection. Sameobjections as D24, p.7965 and 7966.	Motion granted. Foundationlacking for 701 lay opinion. AlsoRule 403.
6. D-25	7968	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certified	No objection.	No objection. Will be allowed ifother parts of chart are admitted.Otherwise irrelevant.

			copies in course ofordinary business.
7. D25	7969	801(d)(2)(PartyAdmission); 803(4)("Patient going towound care 3 times aweek and was startedon Augmentin butreports he is nottaking them becausepills are large and hehas 3 bottles...");803(6) (seecertification).	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds ascaused bycare/communicationat BRG; discussesstatus of patient'swounds 11/22/2017(approximately 2months followingdischarge from BRGWound Care) as wellas patientcompliance; relevantto impeach anytestimony by Plaintiffor Plaintiff witnessesthat Plaintiff iscompliant with allpatient instructions.	(1) Plaintiff does notdispute thetrustworthiness ofthis specific record.(2) There is noexpert opinion issue.(3) This out-of-context medicalrecord is not relevantand, to the extent it isrelevant its relevanceis outweighed by thedanger of unfairprejudice due to thelack of crossexamination. Therecord states that Mr.Francois was nottaking pills. Dr.Garner is not beingcalled by Defendantto explain the natureor purpose of thesepills. With noexplanation from awitness, the Jury willbe left to speculate.Out of context, thisrecord is unfairlyprejudicial.	Motion granted. To the extent thatthe statements are attributed toPlaintiff (as opposed to mother orgrandmother - not clear),foundation lacking for 701opinion. Also Rule 403.
8. D25	7970	801(d)(2) (Party andRelationaladmissions); 803(4)("Patient here withinterpreter andmother and caseworker, patient andmother are poorhistorians and did notbring meds with themtoday. Patient reportsmood has improvedand he is now goingto wound care, butdoes show uplate...Discussed withpatient if medicationnoncompliancecontinues, we will beunable to continue toprovide medical carefor the patient.");	Relevant to claims ofworsening/chronicpressure wounds asbeing caused bycare/communicationat BRG; evidence ofstatus of patient'swounds 10/18/2017(approximately onemonth followingdischarge from BRGWound Care) as wellas patientcompliance; relevantto Plaintiff's claimsthat only effectivecommunication athealth care providerappointment isthrough in-personinterpreter. In-personinterpreter used for	(1) Plaintiff does notdispute thetrustworthiness ofthis specific record.(2) ImpermissibleExpert Testimony.The statement thatMr. Francois is a"poor historian" is acomplex, nuancedissue that is wellbeyond the normal,everyday opiniontestimony that a laywitness is permittedto offer in Court.Given that "GregoryGardner, MD" wasnot listed as awitness—and will notbe testifying in	Motion granted. Foundationlacking for lay opinion testimony.Also Rule 403.

		803(6) (seecertification).	this visit and patientreported as a poorhistorian. Relevant toimpeachment oftestimony byPlaintiff, PaulaRodriguez, Dr. JudyShepherd Kegl and/orLeona Deemer thatPlaintiffcommunicateseffectively onlythrough in-personinterpreter at medicalappointments.	person—Defendantshould not bepermitted to utilize"back door" experttestimony about Mr.Francois being a poorhistorian. Nor willthe Jury be told whata "good historian"(3) Irrelevant andunduly prejudicial.Defendant seeks tooffer as evidence astatement by a third-party medicalprovider who opinedthat Mr. Francois is apoor historian andsomehow use this toestablish whether Mr.Francois neededadequateaccommodations orsuffered damagesfrom the lack ofadequateaccommodation.Given that Defendantwill not be calling theindividual whoauthored this"opinion," however,the relevance of thisthird-party statewould appear to beoutweighed by thedanger of unfairprejudice.
9. D25	7971	803(6) (seecertification)("Patienthas been dischargedfrom wound clinicbecause he refusedtreatment.").	Relevant to claims ofworsening/chronicpressure wounds asbeing caused bycare/communicationat BRG; evidence ofPlaintiff non-compliance; relevantto Plaintiff's claimsand impeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez, Dr. JudyShepherd Kegltestimony thatPlaintiff did notunderstand why	(1) Plaintiff does notdispute thetrustworthiness ofthis specific record.(2) There is noexpert opinion issue.(3) This out-of-context medicalrecord is not relevantand, to the extent it isrelevant its relevanceis outweighed by thedanger of unfairprejudice due to thelack of cross	Motion granted. Foundationlacking for 701 lay opinion. Also,Rule 403.

			discharged fromBRG Wound Care;impeachment oftestimony byPlaintiff, LeonaDeemer and/or PaulaRodriguez re:Plaintiff did notunderstand whydischarged fromBRG Wound Care.	examination. Therecord states that Mr.Francois was"discharged fromwound clinic becausehe refusedtreatment." Does thatmean that he wasdischarged from thecare of Mr. GregoryGarner, MD or fromthe care of BatonRouge General? Withno explanation from awitness, the Jury willbe left to speculate.Out of context, thisrecord is unfairlyprejudicial.
10. D25	7973	801(d)(2) and 803(4)("Source of patientinformation waspatient, source ofpatient informationwas maternalgrandmother, sourceof patient informationwas another in-personinterpreter, patientseen by HopeTherapy.CapitalRegions HomeHealth came to homeon Friday...");803(6) (seecertification).	Relevant toPlaintiff's claim ofworsening/chronicpressure wounds asbeing caused by careat BRG; evidence ofother care providedby other caregiversduring time Plaintiffwas still a patient ofBRG Wound Care;evidence of status ofpressure wounds atthe time.	(1) Plaintiff does notdispute thetrustworthiness ofthis specific record.(2) There is noexpert opinion issue.(3) This out-of-context medicalrecord is not relevantand, to the extent it isrelevant, its relevanceis outweighed by thedanger of unfairprejudice due to thelack of opportunityfor crossexamination. It isentirely unclear whatoccurred at thismedical appointment.With no explanationfrom a witness, theJury will be left tospeculate. Devoid ofcontext, this record isunfairly prejudicial.	Motion granted. To the extent thatsource of information purports tobe Plaintiff (unclear), foundationis lacking for lay opiniontestimony. Also Rule 403.
11. D25	7975	801(d)(2) ("Source ofpatient informationwas patient, source ofpatient informationwas maternalgrandmother, sourceof patient informationwas anotherperson...sign	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds asbeing caused bycare/communicationat BRG; evidence ofPlaintiff's non-	(1) Plaintiff does notdispute thetrustworthiness ofthis specific record.(2) ImpermissibleExpert Testimony.The statement thatMr. Francois is a	Motion granted. To the extentthat source of informationpurports to be Plaintiff (unclear),foundation is lacking for layopinion testimony. Also Rule403. It is unnecessary at this timeto rule on the objection regardingwhether comparative fault isappropriate in this case.

languageinterpreter");803(4) ("Both patientand MGM poorhistorians...BatonRouge GeneralWound Care onceweekly anduncertain...followedby Baton RougeGeneral Wound Careper MGM. Patientreports follow-upnext week withwound care. Woundcare treating sacralulcer and GSW siteT-Spine. Medsreviewed. Patientreports not taking asprescribed. MGMreports awaitingPT/OT. No homehealth to homealthough told ondischarge homehealth would beordered"); 803(6)(seecertification).

compliance withtreatment;Relevant toPlaintiff's claim thatin-person interpreteris only means ofeffectivecommunication inmedical setting,evidence that patientnoted as poorhistorian despitehaving in-personinterpreter present;relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez, Dr. JudyShepherd-Kegltestimony thatPlaintiffcommunicateseffectively onlythrough in-personinterpreter at medicalappointments.

"poor historian" is acomplex, nuancedissue that is wellbeyond the normal,everyday opiniontestimony that a laywitness is permittedto offer in Court.Given that "GregoryGardner, MD" wasnot listed as awitness—and will notbe testifying inperson—Defendantshould not bepermitted to utilize"back door" experttestimony about Mr.Francois being a poorhistorian. Nor willthe Jury be told whata "good historian"(3) This out-of-context medicalrecord is not relevantand, to the extent it isrelevant, its relevanceis outweighed by thedanger of unfairprejudice due to thelack of opportunityfor crossexamination. Theone-page Defendantreferences,Francois_GHS7975,does not contain anyindication of itsauthor. The page iscompletely unsigned.Defendant fails toexplain why thisunsigned, one-pagerecord—with nosupporting author—is"trustworthy," muchless probative of theissues in this case.Further, to theextent Defendantasserts that thisrecord is relevant toprove its defenses of"comparative fault /contributory

				negligence," Mr.Francois refers theCourt to the fact thatthese are not validaffirmative defense toa claim for anintentional tort.Logan v. City ofPullman PoliceDep't, No. CV-04-214-FVS, 2006 WL994759, at *2 (E.D.Wash. Apr. 14, 2006)("becausecomparative fault isinapplicable in thecontext of anintentional tort,Morgan, 137Wash.2d at 896, 976P.2d at 623, the CourtconcludesDefendants'affirmative defenseof comparative faultis inapplicable toPlaintiffs' Section1983 claims."); SeeRestatement (Second)of Torts § 481 ("Theplaintiff'scontributorynegligence does notbar recovery againsta defendant for aharm caused byconduct of thedefendant which iswrongful because itis intended to causeharm to somelegally protectedinterest of theplaintiff or a thirdperson") (emphasisadded).
12. D26	7976	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No objection.	No objection. Allowed in if thereare other parts of the record thatcome in; otherwise, irrelevant.
13. D26	7977	801(d)(2) (Party andRelationalAdmissions) ("patientand grandmother");	Relevant toPlaintiff's claim thatpreferredcommunication is in-	Same basis as D24, p.7965. Again, this isoffered for the truthof the matter	Motion granted. To the extentsource of information wasPlaintiff (unclear), foundation islacking for lay opinion. Also,

		803(4) ("Historyobtained by writingquestions andinterviewinggrandmother...sourceof history patient,grandmother");803(6) (seecertification page).	person interpreter.Evidence thatPlaintiff provideshistory through hisgrandmother andthrough writtenquestions. Notoffered as acommentary oneffectiveness ofreportedcommunication,rather, offered asrelevant toPlaintiff's claimed"preference for in-person interpreter;"relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez, Dr. JudyShepherd Kegltestimony thatPlaintiff did notunderstand whydischarged fromBRG Wound Care;impeachment oftestimony byPlaintiff, LeonaDeemer and/or PaulaRodriguez thatPlaintiff preferscommunication onlythrough in-personinterpreter.	asserted, specifically,that Mr. Francois'history was obtainedthrough his writingand his grandmother.	Rule 403. In addition, offeredexcerpt is hearsay and noapplicable exception.
14. D26	7978	801(d)(2) (PartyAdmission) ("patientand grandmother");803(4) ("Allinformation obtainedthrough written boardto patient");803(6) (seecertification page).	Relevant toPlaintiff's claim thatpreferredcommunication is in-person interpreter.Evidence thatPlaintiff provideshistory through hisgrandmother andthrough writtenquestions. Notoffered as acommentary oneffectiveness ofreportedcommunication,rather, offered asrelevant toPlaintiff's claimed	Same basis as D24, p.7965. Again, this isoffered for the truthof the matterasserted, specifically,that information wasobtained through a"written board."	Motion granted. Foundation islacking for lay opinion. Also,Rule 403.

			"preference for in-person interpreter;"relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez, Dr. JudyShepherd Kegltestimony thatPlaintiff preferscommunicationthrough in-personinterpreter only.
15. D-26	7979	801(d)(2) (Relationaland PartyAdmissions)("patientand familymember");803(4) (Patient in bedcommunicating withdry erase board andsign languagethrough familymember);803(6) (seecertification page).	Relevant toPlaintiff's claim thatpreferredcommunication is in-person interpreter.Evidence thatPlaintiff provideshistory through hisgrandmother andthrough writtenquestions. Notoffered as acommentary oneffectiveness ofreportedcommunication,rather, offered asrelevant toPlaintiff's claimed"preference for in-person interpreter;"relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez, Dr. JudyShepherd Kegltestimony thatPlaintiff preferscommunication onlythrough in-personinterpreter.	Same basis as D24, p.7965. Again, this isoffered for the truthof the matterasserted, specifically,that communicationoccurred through adry erase board.	Motion granted. To the extentsource of information wasPlaintiff (unclear), foundation islacking for lay opinion. Also,Rule 403.
16. D26	7981	803(6) (Seecertificationpage)("Using whiteboard forcommunicationsecondary to hearingimpaired and mute.").	Relevant toPlaintiff's claim thatpreferredcommunication is in-person interpreter.Evidence Plaintiffusing white board forcommunication. Notoffered as acommentary oneffectiveness of	Same basis as D24, p.7965. Again, this isoffered for the truthof the matterasserted, specifically,that a "white board"was used forcommunication.	Motion granted. Foundationlacking for lay opinion. Also,Rule 403.

			reportedcommunication,rather Plaintiff'sclaimed "preferencefor in-personinterpreter;"relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez, Dr. JudyShepherd Kegltestimony thatPlaintiff preferscommunication onlythrough in-personinterpreter.
17. D27	7988	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No objection.	No objection. Allowed if any ofother records in this groupingcome in. Otherwise, irrelevant.
18. D27	7989	801(d)(2) (Relationaland PartyAdmissions)("pergrandmother patientreports... patientreports...");803(4) (Patient deafbut can communicatevia writing back andforth. Patient reportshe was punched inthe nose by hisuncle);803(6) (seecertificationpage)("Patient deafbut can communicatevia writing back andforth").	Relevant toPlaintiff's claim thatin-person interpreteris preferred methodof communication inhospital setting, andPlaintiff's claim thathe is illiterate.Evidence thatPlaintiffcommunicates viawriting back andforth. Relevant toimpeachment ofPlaintiff, PaulaRodriguez, LeonaDeemer and Dr. JudyShepherd-Kegl thatPlaintiff is illiterateand preferscommunication onlythrough in-personinterpreter.	Same basis as D24, p.7965. Again, this isoffered for the truthof the matterasserted, specifically,that Mr. Francois'history was obtainedthrough his writingand his grandmother.The medical recordsrelate to Plaintiffreporting that he waspunched in the noseby his uncle.Whether Mr.Francois waspunched by hisuncle two yearsbefore thediscrimination atissue in this casedoes not bear onliability or damages.	Motion granted. Hearsay. 803(4)does not apply because statementis not by patient. 803(6) does notapply because statement is byoutsider. In addition, foundationlacking for lay opinion. Also Rule403. As to the reference to patientbeing punched by Uncle, this isirrelevant.
19. D28	7993	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No objection.	No objection. Allowed if any ofother records in this groupingcome in. Otherwise, irrelevant.
20. D28	7995	803(6) (seecertification)( "Hewas extremelywithdrawn and was	Relevant toPlaintiff's claim forworsening/chronicpressure ulcers as	Same basis as D24, p.7965. Again, this isoffered for the truthof the matter	Motion granted. To the extentsource of information wasPlaintiff (unclear), foundation

		not participatory withrehab...He did havehis grandmothercome as well asfriends, andinterpretative serviceworking with himeach day duringrehab. Occasionallythere were timeswhen there was notan interpreter servicepresent. Nonetheless,the majority of thetime the patient didhave an interpreterpresent to help witheducation andcommunicationdaily.").	being caused by careat BRG; establishespatient's complianceas alternative cause,as patient receivedpatient education inpresence of in-personinterpreter; relevantto Plaintiff's claimthat in-personinterpreter is onlyeffectivecommunication inhealthcare setting, aspatient had in-personinterpreter, did notrespond optimally.Relevant toimpeachment oftestimony byPlaintiff, LeonaDeemer, PaulaRodriguez, Dr. JudyShepherd-Kegl thatonly effectivecommunication inmedical setting forPlaintiff is in-personinterpreter.	asserted, specifically,that Mr. Francois was"withdrawn and wasnot participatory withrehab." Again,however, Mr.Francois will not beable to cross examinethe writer of thisstatement as to howoften an interpreterwas actually presentand what steps theytook (if any) toengage Mr. Francoisin the rehabilitationprocess.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."	lacking for lay opinion. Also,Rule 403.
21. D28	8004	803(6) (seecertification);901(d)(2)("spokewith grandmother,interpreter...Grandmother states she haskicked out the motherand uncle...Coordinator is PaulaRodriguez...Grandmother isretired and can assistathome...Grandmotherstates patient willonly have a tub, noshower...Grandmother states she will havenoassistance....Grandmother unsure of PCPand states he can usewhatever pharmacywe send theprescriptions to...");803(4) (Patient &family providing	Relevant toPlaintiff's claim forworsening/chronicpressure ulcers asbeing caused by careat BRG; Evidence ofPlaintiff's continuityof care at home andwho his caregiverswere, care occurringbefore, during, afterof pressure woundsby caregivers otherthan BRG; relevant toPlaintiff witnessPaula Rodriguez(employed byPlaintiff as caseworker) bias and/orconflict of interest visa vis Rodriguez andbusiness owned byRodriguez, DeafFocus.	Plaintiff waives anyobjections to thispage.	Plaintiff waives objection.Excerpt will be admitted withoutobjection.

		information regardingcontinuity of care athome).
22. D28	8006	801(d)(2) (Partyadmission: "patientreports"); 803(6) (seecertification);803(4) (OT educatedpatient on importanceof trying to stay outof bed and upright inchair or recliner asmuch as possibleoutside therapy hours.He verbalizedunderstanding andwas agreeable tostaying up in chairafter OT session thispm until afterdinner... patientreports throughinterpreter he iseating some...declinedsupplements"); Non-hearsay: not offeredfor truth, offered toshow patientprovided with woundpreventioninstructions.	Relevant toPlaintiff's claim ofworsening/chronicpressure ulcers asbeing caused by careof BRG; instructionsre: wound preventionprovided to patientvia in-personinterpreter; relevantto impeachment oftestimony byPlaintiff, PaulaRodriguez, LeonaDeemer, Dr.Shepherd-Kegl thatpatient is compliantwith instructionsprovided through in-person interpreter orthat instructionsprovided through in-person interpreterwould preventworsening/chronicpressure wounds andthat instructionsprovided at BRGthrough VRI wereinadequate andcausedworsening/chronicpressure wounds, aspatient alreadyinstructed regardingsame at prior facilityvia in personinterpreter.	(1) Fails as BusinessRecord. First,trustworthiness is atissue. There is noevidence that aninterpreter waspresent. Second, noevidence that dealingwith Deaf individualsis a regular part of theBone and JointClinic's business oroccupation and thatthey had the policies,procedures, andpractices in place toaccuratelycommunicate withMr. Francois.Further,801(d)(2) and 803(4)are not applicablebecause this is anarrative note by anurse as to whatpurportedly occurred(e.g. the nursegenerally summarizesthat he "verbalizedunderstanding"), nota specific statementby Mr. Francois(2) ImpermissibleExpert Testimony.Testimony by an"OT" (occupationaltherapist) that Mr.Francois was"educated" and"verbalizedunderstanding" is noteveryday opiniontestimony that a laywitness is permittedto offer in Court.Given that the authorof this statement willnot be called byDefendant as awitness—and will notbe testifying in	Motion granted. Foundationlacking for lay opinion. Also,Rule 403.

				person—Defendantshould not bepermitted to utilize"back door" experttestimony about Mr.Francois having beeneducated. Thistestimony naturallybegs the question—when is someone"not educated?"(3) This out-of-context medicalrecord is not relevantand, to the extent it isrelevant, its relevanceis outweighed by thedanger of unfairprejudice due to thelack of opportunityfor crossexamination. It isentirely unclear whatis meant by thephrase "verbalizedunderstanding." Doesthis mean that Mr.Francois spokeeloquently about hiscondition? Noddedhis head? Sat theirsilently and did notobject? Given thatDefendant is notcalling a witnessfrom this medicalappointment, it wouldappear that thetestimony is ofnominal orinsignificantrelevance. Out-of-context, this medicalrecord creates adanger of unfairprejudice.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
23. D28	8007	803(6)(seecertification); ("I alsoinstructed the patient	Relevant toPlaintiff's claim ofworsening/chronic	Same basis as D24, p.7965. Again, this isnothing more than a	Motion granted. Foundationlacking for lay opinion. Also,Rule 403.

		that he needs to notrefuse instruction anddemonstration withnursing andtherapy."); Non-hearsay: not offeredfor truth, offered toshow patientprovided with woundpreventioninstructions.	pressure ulcers asbeing caused by careof BRG; instructionsre: wound preventionprovided to patientvia in-personinterpreter; relevantto impeachment oftestimony byPlaintiff, PaulaRodriguez, LeonaDeemer, Dr.Shepherd-Kegl, thatpatient is compliantwith instructionsprovided through in-person interpreter orthat instructionsprovided through in-person interpreterwould preventworsening/chronicpressure wounds andthat instructionsprovided at BRGthrough VRI wereinadequate andcausedworsening/chronicpressure wounds, aspatient alreadyinstructed regardingsame at prior facilityvia in personinterpreter.	lengthy, out-of-courtnarrative by a third-party individual whowill not be testifyingin Court. It isimpermissiblehearsay.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
24. D28	8011	801(d)(2) (PartyAdmission: "patientnodded head...");803(6)(seecertification);803(4) ("patientnodded head that heunderstoodimportance offollowing a bowelprogram, as well asrisk of developingpressure sores withpoor positioning inbed and lack ofmovement.Encouraged patient tohave more awarenessof his body's needswith skin checks,proper diet and	Relevant toPlaintiff's claim ofworsening/chronicpressure ulcers asbeing caused by careof BRG; instructionsre: wound preventionprovided to patientvia in-personinterpreter; relevantto impeachment oftestimony byPlaintiff, PaulaRodriguez, LeonaDeemer, Dr.Shepherd-Kegl, thatpatient is compliantwith instructionsprovided through in-person interpreter orthat instructions	Objection. Sameobjections as D24, p.7965.As for Mr. Francois"nodding his head,"Dr. Judge Shepard-Kegl will discusshow the "Deaf nod"does not indicateagreement orunderstanding, but ismerely reflective of aDeaf individualattempting to followalong and/or becompliant. Permittingthe speculativestatement by an out-of-court declarantthat Mr. Francois	Motion granted. Foundationlacking for lay opinion regardingnodded head and understood.Also, Rule 403.

		movement. Patientand patient'sgrandmother noddedhead in understandingof selfcare needsupon discharge.");Non-hearsay: notoffered for truth,offered to showpatient provided withwound preventioninstructions.	provided through in-person interpreterwould preventworsening/chronicpressure wounds andthat instructionsprovided at BRGthrough VRI wereinadequate andcausedworsening/chronicpressure wounds, aspatient alreadyinstructed regardingsame at prior facilityvia in personinterpreter.	nodding his headindicatedunderstanding willresult in a trial-withing-a-trial as towhat occurred on5/11/2017.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
25. D28	8013	801(d)(2) (Partyadmission: "patientverbalized...");803(6) (seecertification);803(4) (...bedpositioning reviewedas well as skin checksto check for skinbreak and to preventpressure areas. Homeself-care handoutgiven and explainedto patient with aninterpreterpresent..."); Non-hearsay: not offeredfor truth, offered toshow patientprovided with woundpreventioninstructions.	Relevant toPlaintiff's claim ofworsening/chronicpressure ulcers asbeing caused by careof BRG; instructionsre: wound preventionprovided to patientvia in-personinterpreter; relevantto impeachment oftestimony byPlaintiff, PaulaRodriguez, LeonaDeemer, that patientis compliant withinstructions providedthrough in-personinterpreter or thatinstructions providedthrough in-personinterpreter wouldpreventworsening/chronicpressure wounds andthat instructionsprovided at BRGthrough VRI wereinadequate andcausedworsening/chronicpressure wounds, aspatient alreadyinstructed regardingsame at prior facilityvia in personinterpreter.	Objection. Sameobjections as D24, p.7965.Defendant admitsthat it is seeking tooffer this statement"to show patientprovided with woundpreventioninstructions."Whether Mr.Francois was or wasnot previously givenwound careinstructions is thetruth of the matterasserted. This isimpermissiblehearsay and thus isnot admissible.Further, the vaguenarrative statementthat "patientverbalized" is neithera party admissionunder 801(d)(2) or aspecific statementmade for the purposeof diagnosis under803(4).	Motion granted. Foundationlacking for lay opinion. Also 403.
26. D28	8017	803(6) (seecertification);	Relevant toPlaintiff's claim of	Objection. Sameobjections as D24, p.	Motion granted. 701 Foundationtestimony lacking. Also 403.

		("Patient educated onpressure relief anddemonstratedwheelchair pushupand lateral lean forpressure relief.Educated onfrequency anddirection."); Non-hearsay: not offeredfor truth, offered toshow patientprovided with woundpreventioninstructions.	worsening/chronicpressure ulcers asbeing caused by careof BRG; instructionsre: wound preventionprovided to patientvia in-personinterpreter; relevantto impeachment oftestimony byPlaintiff, PaulaRodriguez, LeonaDeemer, Dr.Shepherd-Kegl thatpatient is compliantwith instructionsprovided through in-person interpreter orthat instructionsprovided through in-person interpreterwould preventworsening/chronicpressure wounds andthat instructionsprovided at BRGthrough VRI wereinadequate andcausedworsening/chronicpressure wounds, aspatient alreadyinstructed regardingsame at prior facilityvia in personinterpreter.	7965 and 7967 andD25, p. 7970.Defendant admitsthat it is seeking tooffer this statement"offered to showpatient provided withwound preventioninstructions" WhetherMr. Francois was orwas not previouslygiven wound carepreventioninstructions is thetruth of the matterasserted. This isimpermissiblehearsay and thus isnot admissible.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
27. D28	8026	801(d)(2)(Relational/PartyAdmission: "Spokewith Paula with DeafFocus, patient'sgrandmother...");803(6) (seecertification);803(4) (Paulasuggested I call twofacilities...grandmother states that she feelsshe has two options,return to back to herhouse that needswork done to preparefor a wheelchair andhave her otherchildren move out, orfind another rental	Relevant toPlaintiff's claim forworsening/chronicpressure ulcers asbeing caused by careof BRG; evidence ofpatient care at homeduring same timeframe; relevant tobias on part ofPlaintiff witnessPaula Rodriguez aspaid case worker onbehalf of Plaintiff.	Plaintiff waivesobjections as to thispage, but maintainsan objection toadmission of thisrecord without theredaction of thestatement "I havecontacted PublicHousing and Section8 and they haveclosed the applicationprocess." Due to thehighly prejudicialnature of publicassistance programs,these statementsshould be excluded.	Plaintiff "waives his objection asto this page" except as toreferences to Public Housing. It isunclear whether Defendant iseven offering that part of therecord but, to the extent it is, it isexcluded as irrelevant and, to theextent relevant, undulyprejudicial. The remainder of theentry will be admitted withoutobjection.

		property that ishandicapaccessible...Alsospoke to Paula tostated that she wouldsend out a request forinfo on rentalproperties.Grandmother statesshe hasincome...Plan at thistime is to dischargehome...with supportfrom grandmother.")
28. D28	8030	801(d)(2) (RelationalAdmission: "Paulawith Deaf Focus,patient'sgrandmother..."Paula states...");803(6) (seecertification);803(4) ("Paula statesshe has worked withTheophilus PCAServices before andcan assist withtraining the PCA ifneeded. Paula alsostates that counselingservices can beprovided and she canget patients set upwith casemanagement servicesto assist withcommunity resourcesand help patientconnect with thecommunity....Paulaalso states she couldbe the liaisonbetween grandmotherand BRRH so BRRHcould contact heronce the patient'sname comes up...andshe could assistgrandmother intransitioning patientfrom outpatienttherapy to dayneuro."	Relevant toPlaintiff's claim forworsening/chronicpressure ulcers asbeing caused by careof BRG; evidence ofpatient care at homeduring same timeframe; relevant tobias on part ofPlaintiff witnessPaula Rodriguez aspaid case worker onbehalf of Plaintiff.	Objection. (1)Hearsay. The vastmajority of thisrecord is a narrativethat is offered for thetruth of the matterasserted by theauthor, namely, whatthe out-of-courtdeclarant Brandi B.Westerfield did orwho she spoke(2) No unretainedexpert opinion issue.(3) Irrelevant andunduly prejudicial.This entry isirrelevant and undulyprejudicial becausewhether Ms.Rodriguez offeredto—but did not—actually providetraining to a personalcare attendant is not arelevant fact in thiscase.See also, Plaintiff'sargument about theinapplicability ofcomparativefault/contributorynegligence.	Motion granted. Irrelevant and tothe extent relevant, it is excludedon Rule 403 grounds.
29. D28	8031	801(d)(2) (Relationaland Party Admission:"patient's	Relevant toPlaintiff's claim forworsening wound,	Objection. (1)Hearsay. The vastmajority of this	Motion granted. Hearsay and notsubject to 803(4) (statements notby patient) or 803(6) (statements

		grandmother...Paulastates...Grandmotherstates...Patientstates")803(6) (seecertification);803(4)("Grandmother statespatient's aunt Gettyscan only help himfour days a month, sonow the Plaintiff haschanged to patient'scousin's house...Patient states he doesnot want to go toDarlene's house, hewants to go to Gettys'house. Grandmotherexplained throughinterpreter that hecan't go to Gettys'house because shecan only keep himfour days a month...Grandmother tocontact Tasha toarrange for a homevisit prior to patient'sdischarge.")	plaintiff's claims forworsening/chronicpressure ulcers asbeing caused by careof BRG; evidenceregarding continuityof care, caregivers athome, and care thatoccurred during timepatient was admittedto BRG Wound Care.	record is a narrativethat is offered for thetruth of the matterasserted by theauthor, namely, whatthe out-of-courtdeclarant Brandi B.Westerfield did orwho she spokeAs to purportedparty admissions byMs. Deemer and Mr.Francois, Plaintiffconcedes that thesestatements issufficient specificthat Defendantshould be permittedto use the page toimpeach Ms. Deemerand Mr. Francois, ifappropriate andsomehow relevant.(2) No unretainedexpert issues.(3) Irrelevant andunduly prejudicial.This entry isirrelevant and undulyprejudicial because adisagreement as toMr. Francois'housing arrangementsprior to Mr. Francoisstarting his medicaltreatment at BatonRouge General hasno bearing onwhether Defendantprovided effectivecommunication orwhether Defendantcause Mr. Francoisdamages.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."	of outsider) exceptions. Further,irrelevant for the purposeproffered.
30. D28	8032	801(d)(2) (Relational,Party Admission:"Also spoke with	Relevant toPlaintiff's claim forworsening wound,plaintiff's claims for	Objection. Sameprimary basis as D28,Page 8031.	Motion granted. Hearsay and notsubject to 803(4) (statement notby patient) or 803(6) (statement

		patient, Paula withDeaf Focus...");803(6) (seecertification);803(4) ("Spoke withTasha with TCPabout workers thatwill provide servicesto patient...ifapproved the serviceswill start 5/19...Paulahas started aGoFundMe to helpwith miscellaneousneeds...")	worsening pressurewounds as beingcaused by care atBRG; evidence ofcontinuity of care andcaregivers at home;relevant to bias onpart of plaintiffwitness PaulaRodriguez as paidcase worker on behalfof Plaintiff.	Whether aGoFundMecampaign wasstarted for Mr.Francois has nobearing on whetherDefendant providedeffectivecommunication orwhether Defendantcaused Mr. Francoisdamages.	by "outsider") exceptions. Also403.
31. D28	8034	803(6) (seecertification)("Action to providedurable medicalequipment. HopeRehab to provideoutpatient therapy.TCP to provide in-home care four hoursa day, seven days aweek.").	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds ascaused by care atBRG; evidence ofPlaintiff's continuityof care at home andprior to becoming apatient at BRG, caregiven during time oftreatment at BRG;relevant asimpeachment ofPaula Rodriguez'stestimony thatPlaintiff received nocare or supportservices at homefollowing dischargefrom Our Lady of theLake RegionalMedical Center.	Objection. (1)Hearsay. This is alengthy, out-of-courtnarrative by a third-party individual whowill not be testifyingin Court. The recordis not trustworthy asthere is no indicationthat an interpreterwas present tointerpret for Mr.Francois.801(d)(2) and803(4) are notapplicable becausethis is a narrativestatement by amedical professionalas to whatpurportedly occurred,not a specificstatement by Mr.Francois. Thus, it isneither a partyadmission or "astatement" made formedical diagnosis ortreatment. It isimpermissiblehearsay-within-hearsay.(2) No unretainedexpert issues.(3) Irrelevant andunduly prejudicial.This entry isirrelevant and undulyprejudicial because it	Motion granted. While 803(6) isan exception to first layer ofhearsay, there is no exception tosecond layer of hearsay. Also403.

				creates a "case withina case" where Mr.Francois is obligatedto rebut what did/didnot happen on5/16/2017 at OurLady of the Lake,whether the out-of-court native isaccurate, and whetherOur Lady of the Lakeevaluated hiscommunication needsand preferences.Plaintiff will not beable to cross examinethe out-of-courtindividual who madethis out-of-courtnarrative statement.Finally, the Jury willnot hear what—ifany—training theOLOL staff have oncommunicating withDeaf individuals, sothe reliability of thisrecord is doubtful.
32. D28	8036	803(6) (seecertification)("Discussedimportance of skinchecks for pressuresores, increasingmovement throughoutthe day and stayingactive upondischarge."); Notoffered for truth,rather, evidence thatpatient was providedinstruction regardingprevention ofpressure ulcers.	Relevant toPlaintiff's claim ofworsening/chronicpressure woundsbeing caused by careat BRG, evidence ofinstructions providedto patient prior tobecoming patient ofBRG; relevant toimpeachment oftestimony byPlaintiff, PaulaRodriguez, LeonaDeemer, Dr.Shepherd-Kegl thatpatient is compliantwith instructionsprovided through in-person interpreter orthat instructionsprovided through in-person interpreterwould preventworsening/chronicpressure wounds andthat instructionsprovided at BRG	Objection. Sameprimary basis as D28,Page 8034.	Motion granted. Lay witnesstestimony needed for 701foundation which is lacking. Also403.

			through VRI wereinadequate andcausedworsening/chronicpressure wounds, aspatient alreadyinstructed regardingsame at prior facilityvia in personinterpreter.
33. D28	8043	801(d)(2) (Relationaland PartyAdmissions: "bothpatient andgrandmother inagreement");803(6) (seecertification);803(4)("Grandmother tocontact Tasha toarrange for home visitprior to patient'sdischarge. Socialworker reviewed theBRRH day neuroprogram andoutpatient therapy atHope PT. Bothpatient andgrandmother inagreement. Socialworker to have MDcomplete neededpaperwork for TCP.Faxed order of theHope PT withreferral.")	Relevant toPlaintiff's claim forworsening/chronicpressure wounds asbeing caused by careat BRG; evidenceregarding patient careat home and prior tobecoming a patient atBRG; relevant toimpeach PaulaRodriguez'stestimony thatPlaintiff received nohome care servicesfollowing dischargefrom Our Lady of theLake RegionalMedical Center.	Objection. Sameprimary basis as D28,Page 8034.	Motion granted. Lay witnesstestimony needed for 701foundation and is lacking. Also403.
34. D29	8062	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No objection.	No objection. Will be allowed ifother parts of this grouping areallowed into evidence. Otherwise,irrelevant.
35. D29	8066	803(6)(seecertification page)("room very dirtywith human waste,dirty bandages, trashand dirty clothes").	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds asbeing caused by careat BRG; evidence ofPlaintiff's care andcondition at homeduring time oftreatment and beforeand after treatment atBRG; relevant toimpeachment of	Plaintiff waives anyobjections to thispage.	P Waives any objection to thispage. Based on this waiver,Motion is denied.

			testimony of Plaintiff,Leona Demmer,Paula Rodriguezregarding complianceand quality ofPlaintiff's care athome, beingcompliant withhealthcare providerinstructions asprovided throughPlaintiff's choice in-person interpreter;relevant toimpeachment ofPlaintiff, Dr. JudyShepherd-Kegl,Leona Deemer andPaula Rodriguez thatPlaintiff understandsinstructions for homecare through in-person interpreter, aswell as testimony byPaula Rodriguez thatPlaintiff received nohome care or servicesfollowing dischargefrom OLOL.
36. D30	8067	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No objection.	No objection. Will be allowed ifothers in this grouping areallowed. Otherwise, irrelevant.
37. D30	8068	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No such pageincluded in Exhibit 4filed with the Court.Plaintiff unable toobject or not object.	This page was provided byDefendant in a supplementaloffering. (Doc. 199-1. It will beallowed if others in this groupingare allowed. Otherwise,irrelevant.
38. D30	8070	801(d)(2) (Relationaland PartyAdmissions)("historyprovided by patient;history provided bygrandmother");803(4) ("chiefcomplaint is 'don'tknow' ...presentswith interpreter andgrandmother...he isnot particularlyengaged in theinterview withapathetic responses tofairly queer questions	Relevant toPlaintiff's claim thatonly effectivecommunication inhealthcare setting isthrough in-personinterpreter; evidencethat Plaintiff presentswith in-personinterpreter and is stillnoted to be a poorhistorian; relevant toimpeachment oftestimony by Dr.Shepherd Kegl,Plaintiff, Paula	(1) Plaintiff waiveshearsay concerns.(2) Impermissibleexpert opiniontestimony. Defendanthas not disclosed Dr.Andrew D. Calhounas an expert.Nonetheless,Defendant seeks tooffer a recordcontaining an opinionthat Mr. Francois wassuffering from"dysphoria" and that	Motion granted. To the extentthese are expert opinions, witnessnot listed and Rule 26 report notprovided. To the extent that it is701 lay opinion testimony, itlacks necessary foundationtestimony. In addition, 403.

		with his frequentsigning "I don'tknow." indicates hisdysphoria is related tohis injury but doesnot elaboratemuch.").	Rodriguez, LeonaDeemer that Plaintiffmost effectivecommunication inhealth care setting isvia in-personinterpreter only.	he was "notparticularlyengaged." Yet theJury will not receiveexplanation as towhat constitutesdysphoria or whatconstitutes the proper"engagement level."(3) Irrelevant andunduly prejudicial.This entry isirrelevant and undulyprejudicial because itcreates a "case withina case" where Mr.Francois is obligatedto rebut what did/didnot happen on10/19/2017 at BatonRouge MentalHealth, whether theout-of-court native isaccurate, etc. withoutan opportunity tocross examine theauthor. Given thatDefendant is notcalling the author, therelevance of thisrecord/medicalappointment appearsto be of nominalvalue.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
39. D31	8071	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No objection.	No objection. Will be allowed ifothers in this grouping areallowed. Otherwise, irrelevant.
40. D31	8072	803(6) (certificationpage).	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No objection.	No objection. Will be allowed ifothers in this grouping areallowed. Otherwise, irrelevant.
41. D31	8074	803(6) (seecertification)("Patient caregiverwas instructed onhow to clean the	Relevant toPlaintiff's claim forworsening/chronicpressure wounds asbeing caused by care	Objection. Sameprimary basis asobjections D24, p.7965 and D28, page8034.	Motion denied. Relevant to thewound causation issue. Meetsboth 803(4) and 803(6)exceptions to the hearsay rule.Because the instructions were

		patient, especiallyaround the wound...if and when shechanges the dressingat home."); Non-hearsay: not offeredfor truth, offered asevidence Plaintiff'sgrandmother/caregiver provided withinstructions toperform wound careat home.	at BRG; relevant asevidence of otherwound care providedat same time as thatof BRG andfollowing care ofBRG.	Further, thetrustworthiness ofthis record isespecially suspect. Itis a hand scratchednote on a blankpiece of white paperlacking letterhead,an author, or asignature. Notesscratched on non-standard medicalrecords do not satisfythe business recordsexception. Ariza v.Loomis Armored US,LLC, No.CV31300419JWDEWD, 2016 WL297702, at *4 (M.D.La. Jan. 22, 2016)("Notes scratched ona pad by a doctor oran email written at apatient's request arenot the kind ofofficial records towhich Rule 803(6)applies, for they aretoo informal and toounique to theindividual to beclassified as recordsof a regular businessactivity."). This out-of-court narrative byan unknown third-party individual isinadmissible hearsay.	given only to grandmother, thereis no 701 problem and asignificantly lessened 403problem.
42. D31	8077	803(6) (seecertification)("Patient's woundslook good and appearto be healing. Thewound's edgesappear to beshrinking,particularly the sacralwounds...").	Relevant toPlaintiff's claims forworsening/chronicpressure wounds asbeing caused by careof BRG; evidence ofwound care fromother providersoccurring during thetime that patient wasa patient at BRG;relevant to impeachtestimony of Plaintiff,Leona Deemer and/orPaula Rodriguez thatPlaintiff's woundswere becoming worse	Objection. (1)Hearsay. This is alengthy, out-of-courtnarrative by a third-party individual whowill not be testifyingin Court. It isimpermissiblehearsay-within-hearsay and thus isnot admissible.801(d)(2) and803(4) are notapplicable becausethis is a narrativesummary by amedical professional	Motion denied. Relevant to thewound causation issue. It is nothearsay within hearsay and itmeets both 803(4) and 803(6)exceptions to the hearsay rule.Although it is lay opiniontestimony, it is more in the natureof a description and does notinvolve the same issues ofinterpretation as the excerptsinvolving communication toPlaintiff.

			during Plaintiff'sadmission to BatonRouge GeneralWound Care.	as to whatpurportedly occurredand of what Mr.Francois purportedsaid. Thus, it isneither a partyadmission or "astatement" made formedical diagnosis ortreatment. It isimpermissiblehearsay-within-hearsay.(2) Improper experttestimony. A laywitnesses may, insome circumstances,offer opiniontestimony. FED. R.EVID. 701; UnitedStates v. Curescu,674 F.3d 735, 740(7th Cir. 2012).However, such anopinion requiresproper foundation."[A] witness offeringa lay opinion mustbase his opinion onhis own personalknowledge, whichmust be establishedto the court and jury.When a witness hasnot identified theobjective bases forhis opinion, theproffered opinionobviously failscompletely to meetthe requirements ofRule 701 becausethere is no way forthe court to assesswhether it isrationally based onthe witness'sperceptions." UnitedStates v. Garcia, 291F.3d 127, 140 (2dCir. 2002). Here, anout-of-court, thirdparty states that"Patient's woundslook good and appear

				to be healing." Nofoundation has beenlaid that this physicaltherapist possessesthe necessaryeducation orexperience to providetechnical testimonyas to whether Mr.Francois wounds"looked good" or"were healing."(3) Undulyprejudicial. Thisentry is undulyprejudicial because itcreates a "case withina case" where Mr.Francois is obligatedto rebut what did/didnot happen on July19, 2017 and whetherthe out-of-courtnative is accurate.Plaintiff will not beable to cross examinethis out-of-courtnarrative statement.Finally, the Jury willnot hear what—ifany—training theHope Therapy staffhave oncommunicating withDeaf individuals, sothe reliability of thisnarrative is doubtful.
43. D31	8083	803(6) (SeeCertification)(Therapist suspectedpatient's cushionmight be contributingto theopening/spreading ofpatient's bilateral hiparea wound...Patient's wound wasdoing a lot betteruntil he started sittingon the J Unionwheelchair cushionloaned to him by thewheelchaircompany.").	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds asbeing caused by careat BRG; evidence ofother causes ofwound worsening;relevant to impeachtestimony of PaulaRodriguez, Plaintiff,and/or Leona Deemerthat patient's woundswere becoming worsebecause of lack ofinstruction at BRGand during time hewas patient of BRG.	Objection. Sameprimary basis asobjections D31, p.8077.Further, thetrustworthiness ofthis record isespecially suspect. Itis a hand scratchednote on a blankpiece of white paperlacking letterhead,an author, or asignature. This out-of-court narrative byan unknown third-party individual isinadmissible hearsay.	Motion granted in part and deniedin part. Relevant to the woundcausation issue. It is not hearsaywithin hearsay and it meets both803(4) and 803(6) exceptions tothe hearsay rule. However, whilethe description of the wound islay opinion testimony, it is morein the nature of a description. Themotion is granted, however, as tothe opinion regarding therapist's"suspicion". Here foundation isrequired and there is no witness toprovide the needed foundationaltestimony.

				See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
44. D31	8096,8097	801(d)(2) ("Patientreported"); 803(6)(see certification);803(4) ("Patientreported he felt verysad and depressedevery time he goes tothe wound clinic,because they keepscraping on hiswounds, especiallyhis bilateral hip areawound and its verypainful. Patient alsoreported that theywant him to go to thehospital for 21 daysto treat his wounds inan inpatientbasis..."). Non-hearsay: priorinconsistent statementby Plaintiff.	Relevant toimpeachment ofPlaintiff, LeonaDeemer, Dr.Shepherd-Kegland/or PaulaRodriguez'stestimony thatPlaintiff did notunderstand BRGWound Careappointments, did notunderstanddebridement, andtestimony from samethat Plaintiff did notunderstand that hereceivedrecommendation toconsider treatmentfor his wounds in aninpatient care setting.	Objection. (1)Hearsay and does notqualify as a businessrecord. This narrativeis scratched, in part,on a blank piece ofpaper SeeFrancois_GHS08097.Plaintiff further notesthatFrancois_GHS08096bears a signature line,but the record isunsigned. There isno indication of whoeven created thisrecord.801(d)(2) and803(4) are notapplicable becausethis is a narrativesummary by amedical professionalas to whatpurportedly occurredand of what Mr.Francois purportedsaid. Thus, it isneither a partyadmission or "astatement" made formedical diagnosis ortreatment. It isimpermissiblehearsay.(2) Same expert issueas D31, p. 8077.(3) Undulyprejudicial. Thisentry is undulyprejudicial because itcreates a "case withina case" where Mr.Francois is obligatedto rebut what did/didnot happen on August30, 2017 and whether	Motion granted. It is hearsay andthere is no signature by the recordkeeper or other indication of whomade the record. Furthermore, itcarries the same 701 and 403concerns expressed elsewhere.

				the out-of-courtnative is accurate.Plaintiff will not beable to cross examinethis out-of-courtnarrative statement.Finally, the Jury willnot hear what—ifany—training theHope Therapy staffhave oncommunicating withDeaf individuals, sothe reliability of thisnarrative is doubtful.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
45. D31	8104	803(6) (seecertification)( "Hasbeen sitting on a hardsurface rather than hisbed or his wheelchair,so patient wasinstructed to avoidsitting on hardsurfaces especiallyfor a prolongedperiod of time.");Non-hearsay: offeredas evidence Plaintiffgiven instructionregarding preventionof pressure wounds.	Relevant toPlaintiff's claim ofworsening/chronicpressure wounds asbeing caused by careof BRG; evidence ofPlaintiff non-compliance withinstructions bycaregiver regardingwound prevention;relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez and Dr.Shepherd Kegl thatmost effectivecommunication ofPlaintiff is throughin-person interpreter,evidence thatPlaintiff is repeatedlyeducated through in-person interpreter andexhibits non-compliance.	Objection. Sameessential objection asD31, p. 8077.Further, this is clearlyoffered for the truthof the matterasserted, namely,whether Mr. Francoiswas instructed "toavoid sitting on hardsurfaces..."See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."	Motion granted. Lacks 701foundational testimony and is alsoexcluded under Rule 403.
46. D31	8111	803(6) (SeeCertification)("Patient is aware andoften reminded thathe needs to perform	Relevant toPlaintiff's claim ofworsening/chronicpressure wounds asbeing caused by care	Objection. Sameessential objection asD31, p. 8077.	Motion granted. Lacks 701foundational testimony and is alsoexcluded under Rule 403.

		pressure relieffrequently in sittingposition betweenevery 30 minutes toan hour."); Non-hearsay: offered asevidence Plaintiffgiven instructionregarding preventionof pressure wounds.	of BRG; evidence ofPlaintiff non-compliance withinstructions bycaregiver regardingwound prevention;relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez and Dr.Shepherd Kegl thatmost effectivecommunication ofPlaintiff is throughin-person interpreter,evidence thatPlaintiff is repeatedlyeducated through in-person interpreter andexhibits non-compliance.	Further, this is clearlyoffered for the truthof the matterasserted, namely,whether aconversationoccurred on11/13/2017 whereMr. Francois waspurportedly giveninstruction regardingprevention ofpressure wounds.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
47. D31	8120 -8121	801(d)(2)(PartyAdmission) and803(4): ("He reportedthat he had bloodclots and washospitalized...patientalso reported that heis now a bloodthinner medication.Patient also statedthat he was alsoexperiencingshortness of breathwhile laying downbefore he went to thehospital, but he is nolonger experiencingshortness of breath.");803(6)(seecertification); Non-hearsay: priorinconsistent statementby Plaintiff.	Relevant to impeachtestimony of Plaintiff,Paula Rodriguez,Leona Deemer, andPlaintiff expert Dr.Shepherd-Kegl thatPlaintiff does notunderstand hismedical treatmentand does notunderstand histreatment while apatient at BRG;Plaintiff admitted toBRG immediatelyprior to this woundcare visit. See JointExhibit 17.	Objection. Sameessential objection asD31, p. 8096-97.	Motion granted. Lacks 701foundational testimony and is alsoexcluded under Rule 403.
48. D31	8148	803(6) (seecertification)("Patient was againreminded that heneeds to avoid sittingcontinuously for over2 hours in order topromote the healing	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds asbeing caused by careof BRG; evidence ofPlaintiff non-compliance with	Objection. Sameessential objection asD31, p. 8077.Further, this is clearlyoffered for the truthof the matterasserted, namely,	Motion granted. Lacks 701foundational testimony and is alsoexcluded under Rule 403.

		of his ischiumwound."); Non-hearsay: not offeredfor truth, offered asevidence Plaintiffreceived instructionregarding preventionof pressure wounds.	instructions bycaregiver regardingwound prevention;relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez and Dr.Shepherd Kegl thatmost effectivecommunication ofPlaintiff is throughin-person interpreter,evidence thatPlaintiff is repeatedlyeducated through in-person interpreter andexhibits non-compliance.	whether aconversationoccurred on4/11/2018 where Mr.Francois was giveninstruction siting inone place and itsimpact on woundhealing.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
49. D31	8156 -8157	803(6) (seecertification)("Patient developedpseudo-irritatedarea...ischium areawound becausepatient was sitting fora long period of time,possibly in his carwithout his cushion.Patient was stronglyadvised to avoidprolonged sittingwithout his ROHOcushion so that hewould not causefurther complicationsto his ischium areawound...Patient wasinstructed to spendmore time on hisprone in order to keepthe wound from beingfurther irritated.");Non-hearsay: notoffered for truth,offered as evidencePlaintiff receivedinstruction regardingprevention ofpressure wounds.	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds asbeing caused by careof BRG; evidence ofPlaintiff non-compliance withinstructions bycaregiver regardingwound prevention;relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez and Dr.Shepherd Kegl thatmost effectivecommunication ofPlaintiff is throughin-person interpreter,evidence thatPlaintiff is repeatedlyeducated through in-person interpreter andexhibits non-compliance.	Objection. Sameessential objection asD31, p. 8096-97.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."	Motion granted in part and deniedin part. Motion denied as tostatement that "Patient developedpseudo-irritated area adjoined tothe ischium area wound" forreasons given in the Court'sruling on excerpt 43. The motionis granted as to the remainder ofthe excerpt, beginning with"because patient was sitting, etc."Lacks 701 foundational testimonyand is also excluded under Rule403.
50. D31	8164	801(d)(2)(PartyAdmission) and803(4): ("Patientreported that he took	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds as	Objection. Sameessential objection asD31, p. 8077.	Motion granted. Lacks 701foundational testimony and isexcluded under Rule 403.

		his antibioticmedication only onceper day over theweekend.");803(6) (seecertification)	being caused by careof BRG; evidence ofPlaintiff non-compliance withinstructions bycaregiver regardingwound prevention;relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez and Dr.Shepherd Kegl thatmost effectivecommunication ofPlaintiff is throughin-person interpreter,evidence thatPlaintiff is repeatedlyeducated through in-person interpreter andexhibits non-compliance.	This statement ismerely an out-of-court narrative by anindividual who willnot be testifying attrial.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."
51. D31	8188	803(6) (seecertification)("Patient showedincreased bleedingfrom his bilateral bigtoes when he arrivedin therapytoday...Patient'sbilateral big toes hadingrown toenails andopen areas around theedges of the toenails.Patient's feet wereatrociously dirty...").	Relevant toPlaintiff's claim ofworsening/chronicpressure wounds asbeing caused by careat BRG; evidence ofPlaintiff's care athome withcaregivers; relevantto impeachment oftestimony byPlaintiff, LeonaDeemer, PaulaRodriguez thatPlaintiff receivedregular care at homefor wounds perinstructions providedto Plaintiff andcaregivers.	Objection. Sameessential objection asD31, p. 8077.This statement ismerely an out-of-court narrative by anindividual who willnot be testifying attrial.	Motion denied for reasons givenby the Court in connection withexcerpt 43
52. D31	8214	803(6) (seecertification)("...Patient is also showingimprovement of hisleft ischium areawound, his woundssurface is healing onthe wound bed andaround the edges.".	Relevant toPlaintiff's claim forworsening/chronicpressure wounds asbeing caused by careof BRG; evidencethat Plaintiffremained patient ofHope Therapyspecifically forwound care treatment	Objection. Sameessential objection asD31, p. 8077.This statement ismerely an out-of-court narrative by anindividual who willnot be testifying attrial.	Motion denied. While it doesexpress a lay opinion, it is morein the nature of a description andso 701 and 403 concerns arelessened. The Court exercises itsdiscretion to allow into evidence.

			through March 19,2019.
53. D33	8218	801(d)(2)(Relationaland party admissions"patient presents withgrandmother,translator...");803(4) (Patientpresents in officewith his translator,grandmother, andcare manager forMedicaid. Patientpresents to beginwound care, withfacility...he is deaf,presents withtranslator paid for byMedicaid, previouslygetting wound care atBaton RougeGeneral, states that hestopped goingbecause he wasbleeding a lot whenhe was debrided,grandmother waseducated that patientneeds to increase hisprotein in the amountof meat that he eats,patient was educatedthat he needs to drinkEnsure, states that hedoes not like Ensurethe chocolate, he doesnot like to takevitamins as well,patient is in theprocess of getting apersonal careattendant, weeducated that to healhe would need Zinc,Vitamin C");803(6) (seecertification page).	Relevant toPlaintiff'scompliance withwound careinstructions providedthrough in-personinterpreter andimpeachment of anyPlaintiff witnesstestimony that (1)Plaintiff compliantwith instructionsthrough in-personinterpreters and (2)Plaintiff's mosteffectivecommunication inmedical setting isthrough in-personinterpreter. Relevantto impeachment ofPlaintiff, LeonaDeemer, Dr. JudyShepherd-Kegl andPaula Rodrigueztestimony thatPlaintiff did notunderstandcircumstances ofdischarge from BRGWound Care or careoccurring at BRGWound Care.	(1) Plaintiff waivesany hearsay issues.(2) Plaintiff waivesany expert issues.(3) Irrelevant andunduly prejudicial.This page does notappear to be dated, soits relevance cannotbe meaningfullyevaluated. Further,this entry is irrelevantand undulyprejudicial because itcreates a "case withina case" where Mr.Francois is obligatedto rebut what did/didnot happen at theInfectious DiseaseAssociates on anunknown date.Plaintiff will not beable to cross examinethe out-of-court (andunknown) individualwho made this out-of-court narrativestatement. Finally,the Jury will not hearwhat—if any—training the unknownindividual had onworking oncommunicating withDeaf individuals, sothe reliability of thisrecord is doubtful.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."	Motion granted. 701 lay opinionfoundation testimony is lackingand, in addition, excluded underRue 403.
54. D33	8228	801(d)(2) (Patientstates);803(4) (Patient stateshe comes to the officebut does not want toget out of the car,patient was educated	Relevant toPlaintiff's claims ofworsening/chronicpressure wounds asbeing caused by careat BRG; evidence ofPlaintiff compliance	Objection. Sameprimary basis as D28,Page 8034.See also, Plaintiff'sargument aboutDefendant's	Motion granted. 701 lay opinionfoundation testimony is lackingand, in addition, excluded underRue 403.

		that we cannot helphim if he does notwant to get out thecar and attend woundcare...patient states'he is need of woundcare supplies');803(6) (seecertification page).	with care followingdischarge from BRGWound Care asalternate cause ofchronic wounds.	comparative fault /contributorynegligence "defense."
55. D34	8297	803(6) (certificationpage)	Certification byMedical RecordsCustodian, certifiedcopies in course ofordinary business.	No objection.	No objection. Will be allowed ifanother document in thisgrouping is allowed. Otherwiseirrelevant.
56. D34	8302	803(6) (certificationpage)( Physicianrecord in relation tothe LouisianaDepartment of Healthtraumatic head andspinal cord injurytrust fund application,making applicationon the basis thatPlaintiff has medicalissues resulting fromgunshot wound injuryincluding pressureulcers).	Relevant toPlaintiff's claim thatpressure ulcers arecaused by care andtreatment at BRG;relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez testimonythat Plaintiff seeksdamages for pressureulcers that are resultof BRG care.	Objection. Sameprimary basis as D28,Page 8034.	Motion granted. Irrelevant. Inaddition, it is hearsay and doesnot fit into the 803(4) exception(statements not by patient) or803(6) (does not appear to be arecord of a regularly conductedactivity. In addition, to the extentit has any minimal relevance,403.
57. D34	8303	803(6) (seecertification page)(Physician record inrelation to theLouisianaDepartment of Healthtraumatic head andspinal cord injurytrust fund application,making applicationon the basis thatPlaintiff has medicalissues resulting fromgunshot wound injuryincluding pressureulcers).	Relevant toPlaintiff's claim thatpressure ulcers arecaused by care andtreatment at BatonRouge GeneralWound Care;relevant toimpeachment ofPlaintiff, LeonaDeemer, PaulaRodriguez testimonythat Plaintiff seeksdamages for pressureulcers that are resultof BRG care.	Objection. Sameprimary basis as D28,Page 8034.	This is page 2 of precedingdocument. Motion granted.Irrelevant. In addition, it ishearsay and does not fit into the803(4) exception (statements notby patient) or 803(6) (does notappear to be a record of aregularly conducted activity). Inaddition, to the extent it has anyminimal relevance, 403.
58. D34	8305	801(d)(2) (Relational,PartyAdmissions)("hisgrandmother says");803(4) ("hisgrandmother says thatpatient has not beentaking his antibioticas directed");	Relevant toPlaintiff's claim forworsening/chronicpressure ulcers asbeing caused by careat BRG; evidence ofPlaintiff non-compliance asalternate cause of	Objection. Sameprimary basis as D28,Page 8034.Further, there is noindication that Ms.Deemer had thenecessary foundationor knowledge to state	Motion is granted. This is fromCaresouth Medical Dental. Nocertification sheet and no obviousauthor. The grandmother'sstatement is hearsay withinhearsay and, because it is not thepatient's statement, the Rule803(6) exception does not apply.Defendant did not establish

803(6) (seecertification page).

chronic wounds;relevant to anyPlaintiff witnesstestimony thatPlaintiff is compliantwith health careprovider instructionsrelative to preventionof pressure wounds,including instructionsprovided by in-person interpreters.

that Mr. Francois had"not been taking hisantibiotic asdirected." Again, thiscreates a case-within-a-case that will haveto be litigated.See also, Plaintiff'sargument aboutDefendant'scomparative fault /contributorynegligence "defense."

grandmother's status forrelational party admission. It isalso excluded under Rule 403.

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

/s/ _________

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA