Blake v. Southcoast Health System, Inc., CIV.A. 00-10591-WGY.

• Citation: 206 F.Supp.2d 174
• Decision Date: 17 June 2002
• Docket Number: No. CIV.A. 00-10591-WGY.,CIV.A. 00-10591-WGY.
• Parties: William J. BLAKE and Theresa R. Blake, individually and as administrators of the Estate of Betty Ann Blake, Plaintiffs, v. SOUTHCOAST HEALTH SYSTEM, INC., d/b/a Charlton Hospital; First Physicians Corporation, Inc.; Miguel Brilliantes; Michael A. Pellegrino; and Thomas F. Cahill, Defendants.
• Court: U.S. District Court — District of Massachusetts

206 F.Supp.2d 174

William J. BLAKE and Theresa R. Blake, individually and as administrators of the Estate of Betty Ann Blake, Plaintiffs, v. SOUTHCOAST HEALTH SYSTEM, INC., d/b/a Charlton Hospital; First Physicians Corporation, Inc.; Miguel Brilliantes; Michael A. Pellegrino; and Thomas F. Cahill, Defendants.

No. CIV.A. 00-10591-WGY.

United States District Court, D. Massachusetts.

June 17, 2002.

Philip N. Beauregard, John A. Markey, Beauregard & Burke, New Bedford, MA, for Plaintiffs.

Stephen P. Harten, Ratcliffe & Burke, LLP, William J. Davenport, Colleen Cronin, Bloom & Buell, Nadine Nasser Donovan, Rindler & Morgan, P.C., Joanne Gulliford Hoban, Rindler & Morgan, P.C., Alan B. Rindler, Rindler & Morgan, Curtis R. Diedrich, Sloane & Walsh, Boston, MA, Martin C. Foster, Joan Eldridge, Foster & Eldridge, Cambridge, MA, for Defendants.

Ralph Calderaro, Quincy, MA, for Movant.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. INTRODUCTION

This well-tried medical malpractice case resulted in a complete defendants jury verdict after twenty-four days of trial. It returns to this Court on a motion for a new trial brought by the Plaintiffs, William J. and Theresa R. Blake, acting individually for themselves and as administrators of their deceased daughter's estate (collectively the "Blakes"). In their motion, the Blakes argue that: (a) the verdict was against the weight of the evidence; (b) the jury was influenced by the events of September 11; (c) the redacted portion of the death certificate of the alleged victim of this medical malpractice action should have been admitted under the vital statistics exception to the rule against hearsay, Fed.R.Evid. 803(9); and (d) the entire death certificate should have been admitted as prima facie evidence pursuant to Mass. Gen. Laws ch. 46, § 19 in accordance with Fed. R. Evid 302.

II. DISCUSSION

The more general aspects of the motion, i.e., that the verdict was against the weight of the evidence and the like, need be addressed only summarily. While well argued by all counsel, the Blakes' case had significant causation problems and was eminently triable. The verdict of the twelve person¹ jury, who deliberated over five days, bears all the indicia of being well considered. The jury's verdict was certainly not against the weight of the evidence, and was in no way the product of bias or prejudice invited by attorney argument or behavior. A new trial is not warranted upon any of the general arguments.

One particular evidentiary ruling, however, requires more extended consideration. The death certificate of Betty Ann Blake, the alleged victim of the claimed malpractice, listed "complications of asphyxia by choking" as the cause of her death, and this was the centerpiece of the Blakes' theory—Betty Ann Blake slowly choked to death over twenty-seven hours while receiving inadequate care from the Defendants. One needs only read this Court's opinion ruling on the Defendants' motion to dismiss (where a plaintiffs allegations must be fully accepted as true) to recognize the force of this theory. Blake v. Southcoast Health System, Inc., 145 F.Supp.2d. 126 (D.Mass.2001).

From the outset the Defendants fought to exclude the death certificate. Both sides briefed the issue specifically and argued to the Court. Hearing Tr. 31:21 to 34:16 (Nov. 13, 2001). As might be expected from practitioners who try primarily in the courts of the Commonwealth, where most such medical malpractice cases are heard, the arguments of both sides primarily focused on the well developed Massachusetts law governing the admissibility of death certificates as an exception to the rule against hearsay. See William G. Young, John R. Pollets & Christopher Poreda, 20 Mass. Prac. Evid. § 803.9 (2d ed.1998).

The Court took a different tack. It reasoned that the case contained a federal cause of action under the Americans with Disabilities Act and that, in federal court, the Federal Rules of Evidence govern this issue irrespective of the law of Massachusetts. See Fed.R.Evid. 101, 1101(b); Cameron v. Otto Bock Orthopedic Indus., 1994 WL 51630 at *1 (D.Mass. Jan. 7, 1994), aff'd, 43 F.3d 14 (1st Cir.1994); Fitzgerald v. Expressway Sewerage Constr. Inc., 177 F.3d 71, 74 (1st Cir.1999). Accordingly, this Court found the death certificate admissible pursuant to Fed.R.Evid. 803(8)(c) as a reliable government record. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988).

As the trial progressed, however, it became increasingly evident that, whatever had caused the death of Betty Ann Blake after twenty-seven hours of suffering, it was not "complications of asphyxia by choking." It was evident virtually beyond dispute that Betty Anne Blake had swallowed a large piece of chicken which, while it passed her airways, became lodged further down her esophagus. While this caused her severe, and at times intense suffering and no doubt contributed to the series of events that culminated in her death, her death was not caused by "complications of asphyxia by choking" as that phrase is understood either by a layperson or by physicians.

When, therefore, on the seventeenth day of trial, the defendants renewed their motion to strike the death certificate, this Court reversed itself and agreed in part. The Court reasoned that, as the reliability of the government record is a preliminary question of fact for the Court, Fed.R.Evid. 104(a), and as the Court was no longer persuaded by the fair preponderance of the evidence that "complications of asphyxia by choking" was the primary cause of Betty Ann Blake's death, fairness (and the evidentiary rules) required action. Accordingly, the Court struck the reference to "asphyxia by choking" in the death certificate and so instructed the jury.²

The Blakes seek to revisit this ruling here in their timely motion for new trial. To set the stage, the Court acknowledges that this ruling, coming as it did after the Blakes had rested and towards the end of the case, was one which "affect[ed] substantial rights." Fed.R.Evid. 103(b). If error there was, it was not harmless.

To the extent that the Blakes seek to replough ground already tilled at trial, however, no extended discussion is here required. The Court is content to stand on its explanation made on the trial record. Hrg. Tr. 32:7—34:20 (Nov. 14, 2001). The Blakes do, however, raise for the first time two arguments which must be addressed.

A. Admission as a Record of Vital Statistics

The Blakes contend that the death certificate should have been admitted as a record of vital statistics pursuant to Fed. R.Evid. 803(9). Rule 803(8) governs the admission of public records and reports. Rule 803(9) governs the admission of records of vital statistics. The Plaintiffs are correct that there is some overlap between the two rules, as a death certificate could be considered either a record of vital statistics or a public record. This argument, however, will not carry the Blakes very far.

The Court agrees that, pursuant to Rule 803(9), the death certificate should have been admitted to prove the fact of Betty Ann Blake's death, its date and time, and other pertinent identifying data such as the name of the attending physician. This, however, is precisely the course the Court followed and, to the extent it was relevant, none of this data was disputed at trial.

Identifying primary and secondary causes of death is a qualitatively different function, one which frequently involves making sophisticated medical judgments on the basis of physical examination, medical history and records, and (when necessary) actual autopsy. While it is true that reliable epidemiological and other scientific studies are not infrequently based on review of death certificates (including causes of death) in the aggregate, this is because it is believed that in any large scale study individual errors in particular certificates will either cancel each other out or be of such marginal significance as not to impair the impact of aggregate studies. While in this sense it is proper to think of an entire death certificate as a vital statistic, when only a single certificate is under consideration, as here, it would be improvident to read Fed.R.Evid. 803(9) as requiring admission notwithstanding the express protocol of Rule 803(8)(c), which limits admissibility if "the sources of information or other circumstances indicate lack of trustworthiness." Fed.R.Evid. 803(8)(c).

The pertinent case law bears this out. "A trial judge has the discretion, and indeed the obligation, to exclude an entire report or portions thereof—whether narrow `factual' statements or broader `conclusions' —that she determines to be untrustworthy." Beech Aircraft v. Rainey, 488 U.S. 153, 167-68, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (discussing the "provision for escape" from the generally admissible presumption of Rule 803(8) and noting that rules relating to relevance and prejudice provide additional means through which a trial judge may exclude untrustworthy evidence); see Smith v. Mass. Inst. of Tech., 877 F.2d 1106, 1112-1113 (1st Cir.1989) (affirming exclusion of EEOC findings deemed untrustworthy). There was no error.

B. Admission as a State Law Presumption

The Blakes fault the Court for following federal law in this case, pointing out that Fed.R.Evid. 302 requires that "[i]n civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which state law supplies the rule of decision is determined in accordance with state law." Massachusetts law provides that "[t]he record of the town clerk relative to a ... death shall be prima facie evidence of the facts recorded ...." Mass. Gen. Laws ch. 46, § 19. Under Massachusetts law, "prima facie evidence"³ is one species of a larger genus of evidentiary relationships; "presumptions" is another. See Young, Pollets & Poreda, 19 Mass. Prac. Evid. § 301.9. Indeed, the...