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Pfeifer v. Hiland

United States District Court, W.D. Kentucky, Paducah Division

April 22, 2019

MARK PFEIFER PLAINTIFF
v.
STEVE HILAND, MD DEFENDANT

          MEMORANDUM OPINION AN ORDER

          Thomas B. Russell, Senior United States District Judge.

         This matter is before the Court upon motion in limine by Defendant, Steve Hiland, M.D. (“Dr. Hiland”), to exclude the “Critical Incident Review” Report (“CIR”) generated after the death of Mr. James Embry. (R. 238). Plaintiff, Mark Pfeifer, as Administrator of the Estate of Mr. Embry, has responded to Dr. Hiland's motion in limine. (R. 272). Fully briefed, this matter is ripe for review and for the following reasons, it is GRANTED in part and DENIED in part.

         BACKGROUND[1]

         Mr. Embry, formerly an inmate at Kentucky State Penitentiary (“KSP”), died of dehydration on January 13, 2014. Plaintiff alleges that Dr. Hiland was, at all relevant times, the “Facility Physician” at KSP. Following Mr. Embry's death, the Kentucky Department of Corrections (“KDOC”) conducted an investigation into the facts surrounding the incident. (R. 238 at 1). From this investigation, the KDOC “Review Team”[2] prepared a Critical Incident Review Report. The CIR purports to be conducted in accordance with Corrections Policy and Procedure #8.3 and consists of factual findings, identifies areas of concern at KSP, proposes a conclusion regarding the reason why Mr. Embry died, and includes recommendations to prevent another incident from occurring in the future. (R. 224-2). Dr. Hiland argues that the CIR is hearsay and seeks to have it excluded from evidence in its entirety. Alternatively, Dr. Hiland seeks to have portions of the CIR that are double hearsay excluded from evidence. More specifically, Dr. Hiland argues that the CIR does not fit within the “public records” exception to the hearsay rule, that it contains hearsay within hearsay which must be excluded under Fed.R.Evid. 805, that the CIR's recommendations are subsequent remedial measures that must be excluded under Fed.R.Evid. 407, and that the entire CIR should be excluded under Fed.R.Evid. 403 because its probative value is substantially outweighed by the danger of undue prejudice. (R. 238 at 2).

         STANDARD

         Using the inherent authority to manage the course of trials before it, this Court may exclude irrelevant, inadmissible, or prejudicial evidence through in limine rulings. See Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (citing Fed.R.Evid. 103(c)); Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013); Mahaney v. Novartis Pharms. Corp., 835 F.Supp.2d 299, 303 (W.D. Ky. 2011). Unless such evidence is patently "inadmissible for any purpose," Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997), though, the "better practice" is to defer evidentiary rulings until trial, Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975), so that "questions of foundation, relevancy and potential prejudice may be resolved in proper context," Gresh v. Waste Servs. of Am., Inc., 738 F.Supp.2d 702, 706 (E.D. Ky. 2010). A ruling in limine is "no more than a preliminary, or advisory, opinion." United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff'd, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443). Consequently, the Court may revisit its in limine rulings at any time and “for whatever reason it deems appropriate.” Id. (citing Luce, 713 F.2d at 1239).

         DISCUSSION

         (A) Public records exception.

         Federal Rules of Evidence R. 803(8)(A)(iii) and R. 803(8)(B) state in pertinent part that “[t]he following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . A record or statement of a public office if . . . it sets out . . . in a civil case . . . factual findings from a legally authorized investigation; and . . . the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.” Conclusions and opinions, as well as facts, are admissible under Rule 803(8) as long as they are based on a factual investigation and satisfy the Rule's trustworthiness requirement. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988). The Rule “assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.” Bank of Lexington & Trust Co. v. Vining-Sparks Securities, Inc., 959 F.2d 606, 616 (6th Cir. 1992) (quoting Advisory Committee notes). The “‘provision for escape' is contained in the final clause of the Rule: evaluative reports are admissible unless the sources of information or other circumstances indicate lack of trustworthiness.” Beech Aircraft Corp., 488 U.S. at 167 (internal quotation marks omitted). Because such records are presumed to be admissible, “the party opposing the admission of the report must prove that the report is not trustworthy.” Bank of Lexington & Trust Co., 959 F.2d at 616 (citing Baker v. Elcona Homes Corp., 588 F.2d 551, 558 (6th Cir. 1978), cert. denied, 441 U.S. 993 (1979)).

         Courts look to four factors when determining if a report is considered trustworthy: “(1) the timeliness of the investigation, (2) the special skill or experience of the investigators, (3) whether the agency held a hearing, and (4) possible motivational problems.” Id. These four factors are not exclusive. The Court may also consider “any circumstance which may affect the trustworthiness of the underlying information, and thus, the trustworthiness of the findings.” Alexander v. Caresource, 576 F.3d 551, 563 (6th Cir. 2009) (quoting In re Complaint of Paducah Towing Co., Inc., 692 F.2d 412, 420 (6th Cir. 1982)). Furthermore, “safeguards built into other portions of the Federal Rules, such as those dealing with relevance and prejudice, provide the court with additional means of scrutinizing and, where appropriate, excluding evaluative reports or portions of them.” Beech Aircraft Corp., 488 U.S. at 167-68.

         Before evaluating the trustworthiness factors, the Court must address two threshold issues raised by Dr. Hiland. First, Dr. Hiland argues that the CIR is not the result of a “legally authorized investigation” as is required by Rule 803(8). Dr. Hiland asserts that although the CIR purports to be “conducted in accordance with Corrections Policy and Procedure #8.3, ” the policy had not yet been made available in discovery and it was therefore impossible to determine the boundaries of the authority. Corrections Policy and Procedure #8.3 (“CPP #8.3”) has since been filed with the Court. Upon reviewing CPP #8.3, the Court finds that the CIR is the result of a legally authorized investigation. In relevant part, CPP #8.3 mandates the creation of a “Review Team” following Critical Incidents who “shall determine facts relating to the incident, including weaknesses or strengths found in the facility, the procedures or staff performance.” CPP #8.3 gives broad discretion to the Commissioner of Adult Institutions in selecting the members of the “Review Team.” Because the review team who prepared the CIR in this case determined facts relating to Mr. Embry's death and identified weaknesses in procedures and staff performance, and because the Commissioner is given discretion in formulating the team, the CIR is the result of a legally authorized investigation.

         Second, Dr. Hiland argues that the CIR is inadmissible because the CIR Team lacked firsthand knowledge of the events forming the basis of the CIR. Instead, Dr. Hiland argues, the CIR team based their report on their review of selected documents and interviews. Dr. Hiland asserts that Miller v. Field, 35 F.3d 1088 (6th Cir. 1994) is binding precedent and warrants exclusion of the CIR.

         Dr. Hiland's argument is misguided, however, because “it is not necessary that the person who prepares the report have first-hand knowledge of the events for the report to be admissible pursuant to Rule 803(8).” Nowell v. City of Cincinnati, No. 1:03-CV-869, 2006 WL 2619846, at *4, n. 2 (S.D. Ohio Sept. 12, 2006) (citing Combs v. Wilkinson, 315 F.3d 548 (6th Cir. 2002); Hickson Corp. v. Norfolk S. Ry. Co., 124 Fed.Appx. 336 (6th Cir. 2005)). In Combs, the Sixth Circuit Court of Appeals recognized that “[i]nvestigative reports ‘embody the results of investigation and accordingly are often not the product of the declarant's firsthand knowledge.'” 315 F.3d at 555 (quoting 2 McCormick on Evidence § 296 (5th ed. 1999)). The Combs court also acknowledged that, if Rule 803(8) required the person preparing the report to have firsthand knowledge, “an investigative report would never be admissible as such reports typically are not prepared by persons directly involved in the matter under investigation.” Id. at 555-56. Furthermore, the Sixth Circuit Court of Appeals held in Alexander v. CareSource that “lack of personal knowledge is not a proper basis for exclusion of a report otherwise admissible under Rule 803(8).” 576 F.3d 551, 562-63 (6th Cir. 2009). The Alexander court noted that Combs rejected the argument that a report must be based on firsthand knowledge to be admissible under 803(8) and that it is “unlikely that the report's author(s) will have any personal knowledge of the incidents investigated.” Id. at 562. Finally, the Alexander court explained that “[e]xclusion of an official report is warranted only if the court finds that ‘sources of information or other circumstances indicate lack of trustworthiness.'” Id. (citing Fred.R.Evid. 803(8); 2 McCormick on Evid. § 296 (6th Ed.) (“As the name indicates, these reports embody the results of investigation and accordingly are often not the product of the declarant's firsthand knowledge, required under most hearsay exceptions. Nevertheless, the nature and trustworthiness of the information relied upon, including its hearsay nature, is important in determining the admissibility of the report.” (footnotes omitted))).

         Although the Sixth Circuit has not expressly overturned Miller, this Court and other district courts have recognized that Combs provides the controlling law on the issue of firsthand knowledge under Rule 803(8). In Johnson v. Baker, this Court acknowledged that “the personal knowledge requirement does not extend to official reports admissible under Rule 803(8).” No. 1:08-CV-00038, 2009 WL 2486000, at *3 (W.D. Ky. Oct. 23, 2009) (quoting Alexander, 576 F.3d at 562). District Courts in the Southern District of Ohio and Eastern District of Michigan have also recognized that Combs is controlling law. Nowell, 2006 WL 2619846, at *4 n. 2 (acknowledging that “while the Sixth Circuit has not expressly overruled Miller, the Court follows the rule set out by Combs and Hickson); Moore v. Bannon, No. 10-12801, 2012 WL 2154274, at *9 (E.D. Mich. June 13, 2012) (“While the Sixth Circuit has not expressly overruled Miller, the current rule to be followed is set out by [Combs] and [Hickson], which confirm that it is not necessary that the person ...


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