Pieters v. B-Right Trucking, Inc.

• Decision Date: 06 October 1987
• Docket Number: Civ. No. H 83-1.
• Citation: 669 F. Supp. 1463
• Parties: Karey A. PIETERS, Plaintiff, v. B-RIGHT TRUCKING, INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

669 F. Supp. 1463

Karey A. PIETERS, Plaintiff, v. B-RIGHT TRUCKING, INC., Defendant.

Civ. No. H 83-1.

United States District Court, N.D. Indiana, Fort Wayne Division.

October 6, 1987.

C. Jerome Smith, R. Cordell Funk, Funk & Foster, Hammond, Ind., for plaintiff.

Peter G. Koransky, Spangler, Jennings, Spangler & Dougherty, Merrillville, Ind., for defendant.

ORDER

WILLIAM C. LEE, District Judge.

In this order, the court will consider two motions in limine filed by the defendant and a motion in limine filed by the plaintiff. This cause is set for trial on October 13, 1987. All three motions are fully briefed and a phone conference was held on October 1, 1987. For the following reasons, all three motions will be denied.

I. Facts

The plaintiff and her fiance were traveling northbound on State Road 912 in Gary, Indiana, when the automobile which they were in crashed into the rear of a semi-tractor trailer which had stopped in the traveled portion of State Road 912 because the tractor had run out of diesel fuel. The accident occurred at approximately 1:00 a.m. on November 6, 1982. The driver of the tractor had left it abandoned after it had run out of fuel and had apparently not placed flares or other warning devices behind or beside the tractor.

The plaintiff's fiance, who was driving the automobile, was pronounced dead within hours of the impact. The plaintiff's fiance bled massively at the scene of the accident and never recovered consciousness. The plaintiff survived the impact, but suffered various physical injuries including a broken thumb and an injured hip, which caused her to miss approximately three and one-half months of work.

II. Analysis

This is a diversity case. The parties agree that the substantive issues are governed by Indiana law. At trial, the plaintiff will attempt to prove that her damages resulted from the defendant's negligence. The defendant has asserted the defenses of contributory negligence and incurred risk, and will attempt to show that the plaintiff's fiance was intoxicated at the time of the accident and that his intoxication was the proximate cause of the plaintiff's injuries.

A. Plaintiff's Motion in Limine

The plaintiff has filed a motion in limine to prevent the defendant from suggesting to the jury that a blood alcohol test was performed on the plaintiff's fiance until the defendant has demonstrated outside the presence of the jury that the blood alcohol test is itself admissible. The plaintiff anticipates that the defendant will seek to introduce either a coroner's report or a hospital record to show that the plaintiff's fiance had a blood alcohol content of .23%. The plaintiff's motion turns on the admissibility of the coroner's report or the hospital record under the hearsay exception set forth in Federal Rule of Evidence 803(6).

The plaintiff acknowledges, in the brief which was submitted in support of the motion, that hospital records are business records for purposes of Federal Rule of Evidence 803(6). The plaintiff argues, however, that the defendant must show chain of custody before the hospital record can be admitted under the Rule. The plaintiff does not believe that the defendant can show who ordered the blood drawn, that the blood was actually that of the deceased, or that the blood made it to the hospital laboratory, so that the lab report reflects a test which was done on the decedent's blood.

In support of her argument that the defendant must show chain of custody before the hospital record is admissible under 803(6), the plaintiff cites to Fendley v. Ford, 458 N.E.2d 1167 (Ind.App.1984). In Fendley, the court held that the trial court had not erred in refusing to admit hospital records containing blood alcohol test results where a chain of custody for the blood sample was not established. The court reasoned that Fendley had failed to offer any evidence as to the means by which the blood specimen was sent to and received by the laboratory in which it was analyzed. Id. at 1170. The court based its decision on Baker v. State, 449 N.E.2d 1085 (Ind.1983), and other Indiana cases, all of which require a showing of chain of custody. See, e.g., Orr v. Econo-Car of Indianapolis, Inc., 150 Ind.App. 411, 276 N.E.2d 524 (1971) (chain of custody of blood samples); Arnold v. State, 436 N.E.2d 288 (Ind.1982) (chain of custody of a "rape kit"). The plaintiff's reliance on Indiana law is misplaced, however, since the Federal Rules of Evidence and federal law govern the admissibility of evidence in diversity cases. Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 470-71 (7th Cir. 1984); In re: Air Crash Disaster Near Chicago, Illinois, 701 F.2d 1189, 1193 (7th Cir.1983).

The business records exception to the hearsay rule found in Federal Rule of Evidence 803(6) does not require a showing of chain of custody. In pertinent part, the Rule excludes from the hearsay rule:

a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness.

Fed.R.Evid. 803(6). In order for evidence to be admissible under Rule 803(6), it must be "transmitted by" a declarant "with knowledge" in the ordinary course "of a regularly conducted business activity...." Cook v. Hoppin, 783 F.2d 684, 689 (7th Cir.1986). While the Rule requires that a custodian or qualified witness testify that the requirements of the business records exception have been met, there is no requirement that the "qualified witness" must have personally participated in or observed the creation of the document. United States v. Moore, 791 F.2d 566, 574 (7th Cir.1986). See also United States v. Keplinger, 776 F.2d 678, 693 (7th Cir.1985). "The phrase `qualified witness' is to be broadly interpreted as requiring only someone who understands the system." Moore, 791 F.2d at 575, citing Keplinger, 776 F.2d at 694. In the case of a hospital, evidence is admissible under the Rule if transmitted by a declarant (such as a doctor or a nurse) who reports to the recordkeeper as part of a regular business routine in which they are participants. Hoppin, 783 F.2d at 689-90. If the record meets these tests, was kept in the course of a regularly conducted business activity, and if it was the regular practice of the business to make the record, as shown by the witness, then it is admissible under the Rule.

The Rule does not impose an additional requirement that chain of custody be demonstrated. Thomas v. Hogan, 308 F.2d 355, 360 (4th Cir.1962). In Thomas, the court held that the results of a blood test for intoxication conducted on the plaintiff and contained in a hospital record were admissible under the federal Shop-Book Statute, 28 U.S.C. § 1732, the predecessor to Rule 803(6). Reversing the trial court's refusal to admit the results, the court held that the statute supplies a "presumption that diagnosis and scientific tests are properly made by qualified personnel, if the recorded information reflects usual routine of the hospital and if it is the practice to record such data contemporaneously or within a reasonable time." Id. at 360. Noting that human life often depends on the accuracy of hospital records, the court reasoned that it is reasonable to presume that hospital records are trustworthy. Id. at 361. Along these lines, this court notes that the parties have stipulated in the pretrial order to the authenticity of all medical records relating to the deceased.

Any hospital records or coroner's reports which the defendant attempts to introduce into evidence at trial will be admitted if they meet the requirements of the business records exception as set forth above. Under federal law, the defendant is not required to demonstrate chain of custody in order to satisfy the requirements of the business records exception and to that extent the plaintiff's motion in limine is denied. The admissibility of the documents will depend upon the foundation which is laid at trial. If the defendant can satisfy the requirements of Federal Rule of Evidence 803(6) as set forth above, the records will be admitted into evidence. The blood alcohol content of the plaintiff's fiance is clearly relevant to the defenses of contributory negligence and incurred risk and meets the tests of Rules 401 and 403.

B. Recovery of Emotional Distress Damages

The defendant has filed two motions in limine which relate to recovery of emotional distress damages. In one motion, the defendant seeks to prevent the plaintiff from introducing evidence concerning the emotional trauma suffered by the plaintiff as a result of witnessing her fiance's death. In the second motion, the defendant seeks to prevent the plaintiff from introducing a photograph of the decedent. The second motion tags along with the first. If the plaintiff is not entitled to recover damages for emotional distress caused by the trauma she suffered as a result of witnessing her fiance's death, then a photograph of the decedent would be inadmissible because it would not be relevant to any issue in this case. If, on the other hand, the plaintiff is entitled to recover emotional distress damages for the trauma she suffered as a result of witnessing her fiance's death, then a picture of the decedent would be relevant to the issue of damages. Of course, the photograph might still be inadmissible under Federal Rule of Evidence 403, even if it is relevant, if its prejudicial impact outweighs its probative value. Since the issue regarding the admissibility of the photograph will not need to be dealt...