United States District Court, D. Rhode Island
MARIA WALKER AND DAVID L. WALKER Plaintiffs,
JOYCE A. CARTER, THE JOYCE A. CARTER REVOCABLE TRUST, AND PETRO HOLDINGS, INC. Defendants
J. McConnell, Jr. United States District Judge.
Maria Walker and David Walker ("the Walkers") moved
in limine, under Rule 803(6) of the Federal Rules of
Evidence, seeking to exclude certain language in medical
records indicating: (I) a reference range for normal
carboxyhemoglobin levels in adults (0.0-9.0%), and (2) a
reference range for the population average of
carboxyhemoglobin levels in adults on Aquidneck Island
(0.0-1.9% and 1.7%-1.9%). ECF No. 41.
Defendant objected to the motion and the Walkers filed a
reply. ECF No. 42, 43, 44, 45. After reviewing all the papers
submitted, the Court DENIES IN PART AND GRANTS IN PART the
Walkers rented property from Defendant The Joyce A. Carter
Revocable Trust in Newport, Rhode Island and allege that,
while occupying the home, they were exposed to excessive
levels of carbon monoxide. ECF No. 1 at 1 and 2. As such, the
hospital tested the carboxyhemoglobin levels of the Walkers
on various occasions. The results of each test were recorded
in the Walker's medical charts and the reference ranges
appearing on those test results are at issue.
Rule of Evidence 803 provides that, "regardless of
whether the declarant is available as a witness," some
records of regularly conducted activity "are not
excluded by the rule against hearsay." Fed.R.Evid.
803(6). This rule is commonly called the business records
exception and the exception applies to a "record of an
act, event, condition, opinion or diagnosis" if the five
criteria are met: (1) the record must be made at or near the
time by-or from information transmitted by-someone with
knowledge; (2) the record must be kept in the course of a
regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit; (3) making
the record must be a regular practice of that activity; (4)
the first three criteria must be shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 901(11) or (12) or with
a statute permitting certification; and (5) neither the
source of information, nor the method or circumstances of
preparation indicate a lack of trustworthiness. Fed. R. Evid
Court recognizes the balancing test between the policy
favoring the admissibility of relevant evidence if it has any
probative value and the risk that the evidence might taint
the proceedings. See Torres-Arroyo v. Rullan, 436
F.3d 1, 8 (1st Cir. 2006). Admissibility, however, is
facilitated when a lack of personal knowledge of the entrant
or maker goes to the weight of the information and not to the
admissibility. So "the routine, standardized conditions
under which such reports are prepared, as well as the fact
that the medical examiner is exercising a special
responsibility which the law assigns to him, assure their
independent reliability." Mcnocchio v. Moran,
919 F, 2d 770, 775 (1st Cir. 1990); see also United
Stales v. Baker, 855 F.2d 1353, 1359 (8th Cir. 1988)
(finding that when made on a routine basis, laboratory
analyses of controlled substances are admissible as business
records under Rule 803(6))). Since there is no substantive
challenge on whether the medical reports were made in the
routine course of business, the issue falls on whether the
"source of information or the method or circumstances of
preparation indicate a lack of trustworthiness." Fed. R,
Evid. 803(6), 1. Reference Range for Normal Carboxyhemoglobin
Levels in Adults (0.0-9, 0%)
first reference range the Walkers seek to redact from the
reports is the range showing normal carboxyhemoglobin levels
in adults (0.0-9.0%). ECF No. 41. This standard reference
range appears repeatedly in the medical records relied on by
both parties. The Walkers assert that the range is
"boilerplate" language and has not satisfied Rule
803(6) because there is no sign as to the source of the
information that shows a lack of trustworthiness. ECF No. 41.
Defendants object, asserting that the reference range is
necessary to understand the diagnostic import of the test
results. ECF No. 42 and 43.
records prepared in the ordinary course of business are
presumed to be reliable and trustworthy for two reasons.
Certain Underwriters at Lloyd's, London v.
Sinkovich, 232 F.3d 200, 204-05 (4th Cir.2000). First,
'"businesses depend on such records to conduct their
own affairs; accordingly, the employees who generate them
have a strong motive to be accurate and none to be
deceitful.'" Id. (quoting United States
v. Blackburn, 992 F.2d 666, 670 (7th Cir.1993)). Second,
'"routine and habitual patterns of creation lend
reliability to business records."'
Sinkovich, 232 F.3d at 205 (quoting Blackburn, 992
F.2d at 670).
0.0-9.0% reference range appears in each of the
carboxyhemoglobin laboratory test results. ECF No. 41 and 42.
The range is diagnostic as it is a reference range for
medical personnel to compare a patient's
carboxyhemoglobin levels with standard range for adults. The
fact that there is no sign about the source of this range is
immaterial because the medical personnel regularly conduct
blood tests of this nature and use this reference range as
part of diagnosing and treating patients. The reference range
derives from a routine and habitual practice in testing
carboxyhemoglobin levels in adults and the laboratory
analysis produces results of the individual tests within the
framework of the 0.0-9.0% reference range.
is no sign of a lack of trustworthiness as to the 0.0-9.0%
reference range in the Defendant's medical records and,
therefore, satisfies Rule 803(6). Fed.R.Evid. 803(6).
Reference Range is Relevant
Walkers vaguely assert that, even if the reference range is
admissible under Rule 803(6), the reference range is not
relevant under Rule 403 because "generalizations"
fit under the enumerated requirements of exclusion.
Fed.R.Evid. 403. Federal Rules of Evidence 401 and 402 govern
relevant evidence and the admissibility of the evidence. Rule
401 defines relevant evidence as "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."
Under Rule 402 "[e]vidence which is not relevant is not
admissible." See Kenney v. Head, 670 F.3d 354,
358 (1st Cir. 2012). Under Rule 403, this Court may exclude
relevant evidence if the danger of one or more of its
probative value: unfair prejudice, confusing the issue,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence. Fed.R.Evid. 403. The
reference range of normal carboxyhemoglobin levels in adults
is certainly relevant as it makes whether The Walker's
suffered carbon monoxide poisoning, more or less probable
than it would without the reference range. Fed.R.Evid. 401.
And the physicians rely on this reference range for
diagnostic purposes and, as such, the range is a relevant
fact as to the diagnosis and treatment of the Walkers.
these reasons, The Walker's motion in limine to exclude
the carboxyhemoglobin reference range in adults (0.0-9.0%) is
Reference Range for Normal Carboxyhemoglobin Levels of Adults