Opinion
No. 99 Civ. 8745 (LTS) (KNF)
February 15, 2002
MEMORRANDUM ORDER
Patriot II Shipping Corp. ("Patriot"), Energy Transportation Corp. ("ETC"), and Pronav Ship Management, Inc. ("Pronav"), (collectively, "Defendants") moved in limine, pursuant to Federal Rules of Evidence 702, 403 and 802, to exclude from the evidence to be admitted at trial the July 27, 1998 report of Robert D. Keehn, M.D. ("Keehn"). Keehn was chosen by defendant ETC to evaluate Denis J. Mengele ("Plaintiff") after an alleged accident of July 3, 1998, the second of four claimed accidents upon which Plaintiff sues. The Court has considered thoroughly all submissions and arguments related to this motion and the decision here rendered reflects such consideration. For the following reasons, Defendants' motion in limine is granted.
Defendants seek to bar Keehn's report, asserting that it contains expert opinions that fail to meet the requirements of Federal Rule of Evidence 702 and are without probative value and therefore are inadmissable because of danger of unfair prejudice, confusion of the issues, misleading the jury, or waste of time under Federal Rule of Evidence 403. Rule 702 reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702 (West 2001). Even if expert testimony is deemed admissible, however, it is still subject to exclusion under Federal Rule of Evidence 403. Rule 403 provides:
Although relevant, evidence may be excluded if 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 presentation of cumulative evidence.
Fed.R.Evid. 403 (West 2001).
Expert testimony should assist the jury in understanding the evidence or determining a fact in issue. See United States v. DiDomenico, 985 F.2d 1159, 1163 (2d Cir. 1993). In assessing admissibility, the Court must determine whether the proffered expert testimony is relevant, that is, whether it "ha[s] 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," Fed.R.Evid. 401 (West 2001), see Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 587 (1993), and whether the proffered testimony has a sufficiently "reliable foundation" to permit it to be considered, id. at 597. Under Rule 403, "unfairness may be found in any form of evidence that may cause a jury to base its decision on something other than the established propositions in the case." Leopold v. Baccarat, Inc., 174 F.3d 261, 269 (2d Cir. 1999), quoting 2 Weinstein's Federal Evidence § 403.04[1][b], at 403-36 (2d ed. 1998). Matters of exclusion or inclusion of evidence pursuant to Rules 702 and 403 are left to the broad discretion of the Court. See Leopold, 174 F.3d at 269; United States v. Feliciano, 223 F.3d 102, 120 (2d Cir. 2000).
Here, Keehn's conclusion on the issue of causation of the injury (specifically his reference to the injury being "work related") is conclusory and appears to rest primarily, if not entirely, on Plaintiff's own statements regarding his medical history and the relevant events. Moreover, there is no proffer of information indicating any expertise on Keehn's part in determining where accidents took place. The Court bears in mind as well the general purpose of expert testimony — assisting the trier of fact with scientific, technical or specialized knowledge. Juries are capable of evaluating accounts, such as that apparently provided to Keehn by Plaintiff, of how and where events took place. Under these circumstances, the proffered opinion does not meet the helpfulness criterion of Rule 702 and it presents a substantial risk of unfair prejudice. Admission of the report, standing alone, as evidence of Keehn's opinion on causation would be unfairly prejudicial to Defendants, who would not have the opportunity to test his qualifications to render such an opinion or cross-examine his reasoning and interpretation of the questions of fact on which the opinion was based. See Bruneau v. Borden, 644 F. Supp. 894, 896 (D.Conn. 1986). Moreover, to the extent the report is proffered for its medical opinion as to the necessity for surgery it appears to be cumulative in that the jury will have the expert testimony of Dr. Ranga C. Krishna, witness for Plaintiff, and, thus, jurors will have ample assistance in evaluating Plaintiff's medical diagnosis. See Joint Pre-Trial Statement at 5; 9A Charles A. Wright, Arthur R. Miller Mary K. Kane, Federal Practice and Procedure, § 5215, at 280 (2d ed. 1995) ("In assessing prejudice [under Rule 403], the court must look at other evidence in the case as well as the proffered testimony").
Plaintiff contends that Keehn's report should be allowed into evidence under the Federal Rule of Evidence 803(4) exception from the hearsay bar for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Fed.R.Evid. 803(4) (West 2001). The Second Circuit has noted that "the fact that evidence is within an exception to the hearsay rule does not by itself make it admissible per se. The district court generally has discretion to exclude such hearsay on other grounds, such as where the evidence's probative value is substantially outweighed by the danger of unfair prejudice," Paolitto v. John Brown E. C., Inc., 151 F.3d 60, 64 (2d Cir. 1998) (citing Fed.R.Evid. 403). As the Court has determined that the proffered report's probative value is substantially outweighed by the danger of unfair prejudice, the Court need not consider whether the whole of Keehn's report would have been admissible under the hearsay exception.
Plaintiff further argues that Keehn's report should be admitted pursuant to Federal Rule of Evidence 801(d), which provides that a statement is not hearsay when "[t]he statement is offered against a party and is . . . (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid. 801(d) (West 2001). Under Rule 801(d), a party must establish "(1) the existence of the agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency." Pappas v. Middle Earth Condominium Assn., 963 F.2d 534, 537 (2d Cir. 1992). An essential element of an agency relationship is that the agent is subject to the principal's direction and control. Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 657 F. Supp. 1475, 1481 (S.D.N.Y. 1987). Thus, "[t]here is no agency relationship where the alleged principal has no right of control over the alleged agent." Id. Here, there is no evidence that Keehn, as an independent medical doctor, was "answerable and directly responsible" to Defendant. United States v. Rioux, 97 F.3d 648, 660 (2d Cir. 1996). Plaintiff simply asserts that Keehn was Defendants' agent because he was hired to examine Plaintiff. Plaintiff has not established, based on this statement alone, that Defendants had any right of control over Keehn's performance of his professional medical duties. Rule 801(d) is therefore inapplicable.
For the foregoing reasons, Defendants' motion in limine is granted.
IT IS SO ORDERED.