Jordan v. Ensco Offshore Company, No. 2:2015cv01226 - Document 179 (E.D. La. 2016)
Court Description: ORDER AND REASONS re Plaintiff's 155 Objections to Exhibits 59 through 109, as stated herein. Signed by Judge Susie Morgan on 5/22/2016. (tsf)
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Jordan v. Ensco Offshore Company Doc. 179 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A KEVIN JORD AN , Pla in tiff CIVIL ACTION VERSU S N O. 15 -12 2 6 EN SCO OFFSH ORE COMPAN Y, D e fe n d an t SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court are Plaintiff Kevin J ordan’s objections to certain trial exhibits. 1 Plaintiff objects to Exhibits 59 through 10 9. The Court rules on the objections as follows. E XHIBIT 59 Exhibit 59 is Plaintiff’s m edical records from Wayne General Hospital. This exhibit include Bates labels EOC-KFJ -559, 755 through 757, 825, 8 31 through 832, 8 34, and 919 through 950 . Plaintiff’s first objection to this exhibit is that the certification is defective because it does not com ply with Federal Rules of Eviden ce 90 2(11) and 80 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any eviden ce that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . Plaintiff objects to the pages Bates labeled EOC-KFJ -755 through 757. These records concern a 20 0 7 incident in which he was hospitalized for an apparent drug overdose an d suicide attem pt. Defendant argues that these records are relevant because they are probative of Plaintiff’s drug seeking behavior. 2 These docum ents are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug 1 R. 2 Doc. 131 and 155. The sam e argum ent is m ade by Defendant with respect to all pre-accident m edical records. 1 Dockets.Justia.com seeking behavior is in adm issible. 3 The objection to the pages Bates labeled EOC-KFJ -755 through 757 is SU STAIN ED . Plaintiff objects to the pages Bates labeled EOC-KFJ -825, 8 31 through 8 32, and 8 34. Plaintiff argues these are records from a 20 10 hospitalization for an apparent drug overdose. These docum ents are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 4 The objection to the pages Bates labeled EOC-KFJ -825, 8 31 through 832, and 8 34 is SU S TAIN ED . E XHIBIT 60 Exhibit 60 consists of m edical records from a num ber of Wal-Mart pharm acies. The records are Bates labeled EOC-KFJ -951 through 960 . Plaintiff objects to portions of the pages Bates labeled EOC-KFJ -952, 953 (first entry), 954-957, 958 (first two entries), and 959-960 . The objection is that the records concern prescriptions issued to Plaintiff prior to the accident and are not relevant to any issues in this case. The Defen dant’s response is that the records reflect Plaintiff’s attem pts to get pain m edication. The preaccident records in Exhibit 60 , which are Bates labeled EOC-KFJ -952, 953 (first entry), 954-957, 958 (first two entries), and 959-960 are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 5 The objection to these portions of Exhibit 60 is S U STAIN ED . Plaintiff does not object to the pages Bates labeled EOC-KFJ -951, 953 (last two entries) and 958 (last 12 entries). The unobjected-to portions of these pages are adm issible, an d any objection to them is OVERRU LED . 3 See R. Doc. 165. See R. Doc. 165. 5 See R. Doc. 165. 4 2 E XHIBIT 61 The objection to this exhibit has been withdrawn. E XHIBIT 62 Exhibit 62 is m edical records from the Houm a Orthopedic Clinic. This exhibit includes Bates labels EOC-KFJ -10 34 through 10 52. Plaintiff’s first objection is that the exhibit is cum ulative because records from both Dr. Brett Casey and Dr. Christopher Cenac are included therein. The Plaintiff has agreed to withdraw all of Dr. Casey’s records from Exhibit 62. The objection that the records in Exhibit 62 are cum ulative is OVERRU LED . Plaintiff also objects to Exhibit 62 on the basis that the certification, Bates EOCKFJ -10 34, is defective because it does not com ply with Federal Rules of Evidence 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . E XHIBIT 63 Exhibit 63 consists of m edical records from Pontchartrain Orthopedics & Sports Medicine. It includes Bates labels EOC-KFJ -10 53 through 1142. Plaintiff first argues that the records in this exhibit are cum ulative of other doctors who will testify and whose records are included in the exhibit books. It appears that all pages found in the m edical records from Pontchartrain were actually in the records of Drs. Donnelly and Melancon because the records were received by and relied upon by them . To the extent there is som e overlap with other m edical records, it does n ot appear to be substantial and no prejudice 3 appears to result to the Plaintiff as a result. The objection to the exhibits being cum ulative is OVERRU LED . Plaintiff also argues that certain records in Exhibit 63 are not properly certified. Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence that the records are not authentic or lack trustworthiness. The objection to the certification is OVERRU LED . E XHIBIT 64 The objection to this exhibit has been withdrawn. E XHIBIT 65 Exhibit 65 consists of seven (7) photographs taken of Plaintiff Kevin J ordan’s han d during his deposition. The photographs are not Bates labeled. The photographs were taken by defense counsel on his cell phone. These photographs were not listed in the proposed pre-trial order. For that reason, the photographs are inadm issible. The objection to Exhibit 65 is SU STAIN ED . E XHIBIT 66 Exhibit 66 includes Plaintiff’s m edical records from Forrest General Hospital. The exhibit includes Bates labels EOC-KFJ -1198, 1213 through 1214, 1219 through 1228, 1239 through 1243, 1247 through 1255, 1258, 1279, 1288-1299, and 1310 through 1340 . Plaintiff’s first objection to this exhibit is that the certification, Bates EOC-KFJ -1198 , is defective because it does not com ply with Federal Rules of Evidence 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any eviden ce that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . 4 Plaintiff also objects to the pages Bates labeled EOC-KFJ -1213 through 1214 and 1219 through 1228, noting that these m edical records are from a four-wheeler accident that occurred in 20 11 prior to the accident-in-question in this case. Plaintiff argues the exhibits are irrelevant and, even if relevant, are m ore prejudicial than probative. Defendant argues that these docum ents are evidence of Plaintiff’s drug seeking behavior. These docum ents are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is in adm issible. 6 The objection to the pages Bates labeled EOC-KFJ -1213 through 1214 and 1219 through 1228 is SU STAIN ED . Plaintiff extends sim ilar objections to the pages Bates labeled EOC-KFJ -1239 through 1243, 1247 through 1255, 1258, and 1279. These records concern in juries Plaintiff suffered in 20 12 and a toothache in February 20 13. Plaintiff argues the records are irrelevant and are m ore prejudicial than probative. These docum ents are in adm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 7 The objection to the pages Bates labeled EOC-KFJ -1239 through 1243, 1247 through 1255, and 1258 is SU STAIN ED . Plaintiff objects to the pages Bates labeled EOC-KFJ -1310 through 1340 . These records docum ent Plaintiff’s post-accident reports of chest pains and a panic attack. Plaintiff objects to them on the basis of relevance and that the inform ation contained therein is m ore prejudicial than probative. The Court finds these records are relevant an d are not unduly prejudicial. The objection to the pages Bates labeled EOC-KFJ -1310 through 1340 is OVERRU LED . 6 7 See R. Doc. 165. See R. Doc. 165. 5 E XHIBIT 67 Exhibit 67 is a Mississippi Pharm acy report for prescription issued to the Plaintiff from March 17, 20 15 through March 17, 20 16. The report was attached as Exhibit 13 to Dr. Melancon’s deposition. The report, however, was not listed as an exhibit in the proposed pre-trial order. The report m ay be used to refresh the m em ory of Dr. Melancon, if necessary, but m ay n ot be adm itted into evidence. The objection is SU STAIN ED . E XHIBIT 68 Exhibit 68 includes m edical records from CARE Physical Therapy. It includes Bates labels EOC-KFJ -1358 through 1387. Plaintiff’s sole objection to this exhibit is that the certification is defective because it does not com ply with Federal Rules of Eviden ce 90 2(11) and 80 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to this exhibit is OVERRU LED . E XHIBIT 69 Exhibit 69 consists of m edical records from the Plastic Surgery Center of Hattiesburg. This exhibit includes Bates labels EOC-KFJ -1388 through 1393. Plaintiff’s first objection is that the certification is defective because it does not com ply with Federal Rules of Evidence 90 2(11) and 8 0 3(6)(A). Plaintiff also argues that the “m ethod or circum stances of preparation indicate a lack of trustworthiness.” Plaintiff’s argum ent is based, in part, on the fact that the report is dated J anuary 29, 20 14, when it should have been dated J anuary 29, 20 15. This error does not warrant exclusion. This obvious typographical error in the date of the report m ay be easily explain ed. Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has 6 not offered any eviden ce that the records are not authentic or are otherwise unreliable. The objection on this basis is OVERRU LED . E XHIBIT 70 Exhibit 70 is Plaintiff’s m edical records from Southern Bone & J oint Specialists. Exhibit 70 includes Bates labels EOC-KFJ -1394 through 1446. Plaintiff’s first objection to this exhibit is that the certification, Bates EOC-KFJ -1394, is defective because it does not com ply with Federal Rules of Evidence 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . Plaintiff further argues that the pages Bates labeled EOC-KFJ -1395 through 1437 are cum ulative of Dr. Melancon’s testim ony. The Court disagrees and will not exclude these pages on that basis. The objection to the pages Bates labeled EOC-KFJ -1395 through 1437 is OVERRU LED . E XHIBIT 71 Exhibit 71 consists of m edical records from Waynesboro Fam ily Medicine and Dr. Ross Sherm an. The exhibit in cludes Bates labels EOC-KFJ -1447 through 1449. Plaintiff argues that these records are irrelevant and, even if relevant, are m ore prejudicial than probative. These m edical records docum en t treatm ent that the Plaintiff received in connection with a 20 12 four-wheeler crash and a 20 11 illness. This treatm ent occurred prior to the accident-in-question. These docum ents are inadm issible pursuant to the 7 Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 8 The objection to this exhibit is SU STAIN ED . E XHIBIT 72 The objection to this exhibit has been withdrawn. E XHIBIT 73 Exhibit 73 includes m edical records from J ennings Am erican Legion Hospital. This exhibit consists of Bates labels EOC-KFJ -1473 through 1492. Plaintiff objects on the basis of relevance and argues that, even if relevant, the records are m ore prejudicial than probative. These records relate to an incident that occurred after the accident-in-question and are relevant. The Court also finds that the records are not m ore prejudicial than probative. The objection to Exhibit 73 is OVERRU LED . E XHIBIT 74 Exhibit 74 consists of m edical records from J asper Medical Clinic. It includes Bates labels EOC-KFJ -1493 through 1535. Plaintiff’s first objection to this exhibit is that the certification, Bates EOC-KFJ -1493, is defective because it does not com ply with Federal Rules of Evidence 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . Plaintiff also objects to the entirety of Exhibit 74 on the basis that it is cum ulative of Karen Parker’s testim ony. This objection is without m erit and is OVERRU LED . Plaintiff also specifically objects to the page Bates labeled EOC-KFJ -1498, which includes the observation of Dr. Cirilia Reyes that: “when I pulled his pants up I saw m an y 8 See R. Doc. 165. 8 syringes, tucked inside his socks. When questioned about it, he said he bought it for his friend who is self injecting steroid[s].” This page is inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 9 Also inadm issible are the pages Bates labeled EOC-KFJ -1497 and 1499, the rem aining pages of Dr. Reyes’s report. These pages are irrelevant to any issues in this case. The objection to the pages Bates labeled EOC-KFJ -1497 through 1499 is SU STAIN ED . To address any rem aining objections to Exhibit 74, the Court notes that it previously excluded Karen Parker’s testim ony on requests by the Plaintiff for increased dosages and Parker’s testim ony concerning Plaintiff’s alleged abuse of Adderall. 10 To the extent the m edical records in Exhibit 74 are related to these topics, they also are excluded. Counsel for Plaintiff and the Defendant are instructed to confer and to attem pt to determ ine which records are adm issible in light of the Court’s ruling herein and the Court’s ruling on the adm issibility of portions of Karen Parker’s deposition testim ony. If counsel cannot reach an agreem ent, they are to notify the Court no later than Mo n d ay, Ma y 2 3 , 2 0 16 , at 8 :3 0 a.m . E XHIBIT 75 Exhibit 75 consists of m edical records from the Laurel Pain Clinic. It includes Bates labels EOC-KFJ -1536 through 1577. Plaintiff’s first objection to this exhibit is that the certification, Bates EOC-KFJ -1536, is defective because it does not com ply with Federal Rules of Evidence 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence 9 10 See R. Doc. 165. See R. Doc. 165 at 3– 4. 9 that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . Plaintiff also objects to this exhibit in its entirety on the basis of relevance. Plaintiff further argues that, even if relevant, the m edical records in Exhibit 75 are m ore prejudicial than probative. The Court disagrees. These m edical records are relevant, and their probative value is not substantially outweighed by the danger of unfair prejudice. The objection on this basis is OVERRU LED . Plaintiff also objects to the exhibit on the basis that it is cum ulative of Dr. Vivek Barclay’s and Randy McGee’s testim ony. This objection is without m erit and is OVERRU LED . E XHIBIT 76 Exhibit 76 is an invoice from Pontchartrain Bone & J oint Clinic. The exhibit is not Bates labeled. The invoice is Exhibit 15 to Dr. Melancon’s deposition. The invoice, however, was not listed as an exhibit in the proposed pre-trial order. The report m ay be used to refresh the m em ory of Dr. Melancon, if necessary, but m ay not be adm itted into eviden ce. The objection is SU STAIN ED . E XHIBIT 77 Exhibit 77 is m edical records from the Alliance Health Center. This exhibit includes Bates labels EOC-KFJ -1597 through 1599, 160 7 through 160 8, 1618 through 1619, 1762, and 18 0 2 through 180 5. Plaintiff’s first objection to this exhibit is that the certification, Bates EOC-KFJ -1597, is defective because it does not com ply with Federal Rules of Eviden ce 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any eviden ce that the 10 records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . Plaintiff also objects, specifically, to the pages Bates labeled EOC-KFJ -1598 through 1599, 160 7 through 160 8, 1618 through 1619, and 1762. Plaintiff argues that these pages are m edical records relating to an incident prior to the accident in question and are irrelevant and prejudicial. These pages are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 11 The objection to the pages Bates labeled EOC-KFJ -1598 through 99, 160 7 through 160 8, 1618 through 1619, and 1762 is SU S TAIN ED . Plaintiff also objects to the pages Bates labeled EOC-KFJ -18 0 2 through 180 5. Plaintiff argues that these pages are m edical records relating to an incident prior to the accident in question and are irrelevant and prejudicial. These pages are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 12 The objection to the pages Bates labeled EOC-KFJ -18 0 2 through 18 0 5 is SU STAIN ED . E XHIBIT 78 Exhibit 78 is Plaintiff’s m edical records from Lafayette General Medical Center. This exhibit includes Bates labels EOC-KFJ -1878, 1910 through 1924, 1929 through 1940 . Plaintiff objects only to the pages Bates labeled EOC-KFJ -1929 through 1940 . These records docum ent treatm ent the Plaintiff received due to a 20 10 accident involving a horse. This incident occurred prior to the March 3, 20 13 accident-in-question. Plaintiff thus contends that the pages Bates labeled EOC-KFJ -1929 through 1940 are irrelevant 11 See 12 R. Doc. 165. See R. Doc. 165. 11 and are overly prejudicial. These pages are inadm issible pursuant to the Court’s ruling that eviden ce of Plaintiff’s alleged drug seekin g behavior is inadm issible. 13 The objection to the pages Bates labeled EOC-KFJ -1929 through 1940 is SU STAIN ED . E XHIBIT 79 Exhibit 79 consists of m edical records from Southern Bone & J oint Specialists. This exhibit in cludes Bates labels EOC-KFJ -1961 through 1972. Plaintiff’s first objection to this exhibit is that the records are not certified. Although a certification does not appear with the exhibit in the joint exhibit books, the Court finds that the records are certified. The Defendant notes that Plaintiff has in his possession a certification and, in fact, Plaintiff provided this certification to the Defendant. The purported certification is on the record at Record Docum ent 115-2. If in fact this is the certification for the m edical records from Southern Bone & J oin t Specialists in Exhibit 79, the objection is OVERRU LED . If the certification found at Record Docum ent 115-2 if not the certification for these records, the parties should inform the Court at the conference on Mo n d ay, May 2 3 , 2 0 16 at 8 :3 0 a .m . Plaintiff also objects to the pages Bates labeled EOC-KFJ -1961-1971. Plaintiff argues that these pages do not concern the injury to Plaintiff’s left index finger and, thus, are irrelevant. Even if relevant, Plaintiff argues the probative value of these pages is substantially outweighed by the danger of unfair prejudice. The Court disagrees. The pages Bates labeled EOC-KFJ -1961-1971 are related to an incident after the accident in question and are relevant. Their probative value is not substantially outweighed by the danger of unfair prejudice. The objection on this basis is OVERRU LED . 13 See R. Doc. 165. 12 E XHIBIT 80 Exhibit 80 consists of m edical records from Christus Hospital – St. Elizabeth. This exhibit includes Bates labels EOC-KFJ -1978 through 20 51. Plaintiff’s first objection to this exhibit is that the certification, Bates EOC-KFJ -1978, is defective because it does not com ply with Federal Rules of Evidence 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence that the records are not authentic or were prepared under circum stances in dicating a lack of trustworthiness. The objection to the certification is OVERRU LED . Plaintiff also objects to the exhibit, in globo, on the basis of relevance and that, even if relevant, the exhibit is m ore prejudicial than probative. These m edical records concern treatm ent the Plaintiff received for neck, back, and shoulder sprains in 20 10 , prior to the accident-in-question. This exhibit is inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 14 The objection to Exhibit 8 0 is SU STAIN ED . E XHIBIT 81 The objection to this exhibit has been withdrawn. E XHIBIT 82 Exhibit 8 2 consists of m edical records from the Arthur E. Wood Medical Center. The exhibit includes Bates labels EOC-KFJ -20 79, 20 90 , and 20 92. Plaintiff objects to the pages Bates labeled EOC-KFJ -20 90 and 20 92. Plaintiff argues that these pages docum ent treatm ent he received for gallstones and a twisted right knee, respectively. This treatm ent occurred prior to the accident-in -question. The pages Bates labeled EOC-KFJ -20 90 and 14 See R. Doc. 165. 13 20 92 are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 15 The objection to Exhibit 8 2 is SU STAIN ED . E XHIBIT 83 Exhibit 83 is Plaintiff’s m edical records from the Wesley Medical Center. The exhibit includes Bates labels EOC-KFJ -20 94 through 2139. Plaintiff first objects to the pages Bates labeled EOC-KFJ -20 95 and 20 96, noting that they were not included in the joint exhibit books. Defense counsel has indicated that the pages were intentionally om itted from the exhibit books, as those pages are not intended to be part of Exhibit 83. Thus, any objection to the pages Bates labeled EOCKFJ -20 95 and 20 96 is OVERRU LED AS MOOT. Plaintiff also objects to the pages Bates labeled EOC-KFJ -20 97 through 210 7. According to Plaintiff, these pages docum ent treatm ent the received for a right shoulder injury in 20 11. This treatm ent occurred prior to the accident-in-question. Thus, Plaintiff contends the records are irrelevant and, even if they were relevant, they are m ore prejudicial than probative. The pages Bates labeled EOC-KFJ -20 97 and 210 7 are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 16 The objection to these exhibits is S U STAIN ED . Plaintiff objects to the pages Bates labeled EOC-KFJ -210 8 through 2124 on sim ilar grounds. Plaintiff notes that these pages concern treatm ent the Plaintiff received in 20 12 for a shoulder injury. The pages Bates labeled EOC-KFJ -210 8 and 2124 are inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 17 The objection to these exhibits is SU STAIN ED . 15 See R. Doc. 165. See R. Doc. 165. 17 See R. Doc. 165. 16 14 The objection with respect to the pages Bates labeled EOC-KFJ -2125 through 2139 has been withdrawn. E XHIBIT 84 Exhibit 8 4 consists of m edical records from Christus Spohn Hospital Corpus Christi – Shoreline. The exhibit includes Bates labels EOC-KFJ -2140 through 2142, 2146, and 2155. Plaintiff’s first objection to this exhibit is that the certification, Bates EOC-KFJ 2140 , is defective because it does not com ply with Federal Rules of Eviden ce 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any eviden ce that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . Plaintiff also objects to this exhibit on the basis of relevance and that its probative value is substantially outweighed by the danger of unfair prejudice. Plaintiff notes that the m edical records which are Exhibit 84 concern treatm ent for a shoulder injury Plaintiff received in 20 12, prior to the accident-in-question. Exhibit 8 4 is in adm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 18 The objection on the basis of relevance and unfair prejudice is SU STAIN ED . E XHIBIT 85 Exhibit 8 5 consists of m edical and treatm ent records from the Wood Group. The Bates labels in this exhibit are WG 0 0 0 0 1 through WG 0 0 0 0 14. These records concern post-accident treatm ent of the Plaintiff by Sandy Singles, the m edic on board the ENSCO 18 See R. Doc. 165. 15 8 50 6 oil rig. Plaintiff contends these records are cum ulative of Singles’s testim ony. This objection is without m erit and is OVERRU LED . E XHIBIT 86 Exhibit 86 is m edical records from BC/ BS of Texas. This exhibit includes Bates labels EOC-KFJ -30 38 through 30 58. Plaintiff’s first objection to this exhibit is that the certification, Bates EOC-KFJ -30 38, is defective because it does not com ply with Federal Rules of Evidence 90 2(11) and 80 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to the certification is OVERRU LED . Plaintiff’s next objection is based on Federal Rule of Evidence 40 3. Plaintiff notes that the exhibit consists of spreadsheets with a num ber of entries which would confuse and m islead the jury and waste tim e. The Court finds that the exhibit is inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 19 The objection to Exhibit 8 6 on this basis is SU STAIN ED . E XHIBIT 87 Exhibit 8 7 is m edical records from Avoyelles Hospital. It includes Bates labels EOC-KFJ -3767 through 3785. These records docum ent treatm ent the Plaintiff received for neck and back pain in 20 10 . Plaintiff argues the exhibit is irrelevant and, even if relevant, is m ore prejudicial than probative. This exhibit is inadm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 20 The objection to Exhibit 8 7 is SU STAIN ED . 19 20 See R. Doc. 165. See R. Doc. 165. 16 E XHIBIT 88 Exhibit 88 is m edical records from the Lady of the Sea General Hospital. It includes Bates labels EOC-KFJ -3919 through 3937. Plaintiff’s sole objection to this exhibit is that the certification is defective because it does not com ply with Federal Rules of Eviden ce 90 2(11) and 80 3(6)(A). Plaintiff was given notice that these m edical records would be used as exhibits at the trial. The Plaintiff has not offered any evidence that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objection to Exhibit 8 8 is OVERRU LED . E XHIBIT 89 The objection to this exhibit has been withdrawn. E XHIBIT 90 Exhibit 90 includes Plaintiff’s m edical records from South Central Regional Medical Center. This exhibit consists of Bates labels EOC-KFJ -2175, 2178, 2182, 2184, 2227, 2229, 2332, 2334 through 2335, 2349 through 2380 , 2641 through 2664, 2665 through 2687, 2738 through 2758, 28 0 0 through 28 0 8, 28 58 through 28 59, 290 6, 290 8, 2912, and 2915 through 2917. This exhibit, in its entirety, is in adm issible pursuant to the Court’s ruling that evidence of Plaintiff’s alleged drug seeking behavior is inadm issible. 21 The objection to this exhibit is SU STAIN ED . E XHIBIT 91 The objection to this exhibit has been withdrawn. E XHIBIT 92 The objection to this exhibit has been withdrawn. 21 See R. Doc. 165. 17 E XHIBIT 93 The objection to this exhibit has been withdrawn. E XHIBIT 94 Exhibit 94 is Plaintiff’s October 14, 20 15 responses and supplem ental responses to interrogatories propounded by ENSCO. Defen dant seeks to use this exhibit as evidence of Plaintiff’s prior statements or adm issions. Federal Rule of Civil Procedure 33(c) provides: “An answer to an interrogatory m ay be used to the extent allowed by the Federal Rules of Eviden ce.” Thus, “[t]he requirem ent that a party sign his interrogatory answers under oath is critical.”22 If interrogatory responses are not signed by the party but only by the party’s attorney, the responses are unsworn, unverified, and am ount only to statem ents of counsel. Such interrogatory responses are not adm issible evidence at trial. 23 The interrogatory responses in Exhibit 94 are signed only by Plaintiff’s counsel, not by the Plaintiff, and thus are not adm issible. The objection to Exhibit 94 is SU STAIN ED . E XHIBIT 95 Exhibit 95 is Plaintiff’s October 14, 20 15 responses and supplem ental responses to ENSCO’s requests for production. Plaintiff’s responses are signed only by his counsel. For the reasons stated above with respect to Exhibit 94, Plaintiff’s responses to ENSCO’s requests for production are inadm issible. The objection to Exhibit 95 is SU STAIN ED . E XHIBITS 96 – 99 Exhibits 96 through 99 are a num ber of Plaintiff’s personnel files from com pan ies for which he worked prior to ENSCO. Plaintiff’s first objection to these exhibits is that the certifications are defective because they do n ot com ply with Federal Rules of Evidence 22 W agner v. Boh Bros. Const. Co., L.L.C., No. 11-20 30 , 20 12 WL 3637392, at *4 (E.D. La. Aug. 22, 20 12) (em phasis added). 23 See id. (citations om itted) (“In this instance, Wagner’s answer to Interrogatory No. 2 is not adm issible as evidence of his alleged lying under oath (or for any other purpose) because he did n ot sign it under oath.”). 18 90 2(11) and 8 0 3(6)(A). Plaintiff was given notice that these records would be used as exhibits at trial. Plaintiff has not offered any evidence that the records are not authentic or were prepared under circum stances indicating a lack of trustworthiness. The objections to Exhibits 96 through 99 on the basis that the certifications are defective are OVERRU LED . Plaintiff also argues that these exhibits are irrelevant because they consist of preENSCO em ploym ent records. Even if relevant, Plaintiff argues the exhibits would m islead and confuse the jury and waste its tim e. In response, the Defen dant indicates these exhibits are needed to cross exam ine the Plaintiff and show that he m isrepresented his m edical history in the em ploym ent applications and did not answer questions in the applications truthfully. It is apparent that these exhibits will be used only to im peach Plaintiff’s character for truthfulness. Federal Rule of Evidence 60 8(b) provides: “[E]xtrinsic evidence is not adm issible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court m ay, on cross-exam ination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the witness.” Eviden ce that a witness lied on an em ploym ent application is probative of the witness’s character for untruthfulness. 24 However, Plaintiff’s pre-ENSCO personnel files, which allegedly included evidence of Plaintiff’s untruthfulness, are extrinsic evidence of his character and cannot be introduced into evidence under Rule 60 8(b). The Defendant m ay, in cross-exam ining Plaintiff, ask whether he lied in his pre-ENSCO em ploym ent applications. If Plaintiff denies he was untruthful, the Defendant cannot then use the em ploym ent applications or personnel files 24 See, e.g., Brossette v. Sw ift Transp. Co., No. 0 7-0 8 8 8, 20 0 8 WL 480 9411, at *9 (W.D. La. Oct. 29, 20 0 8) (citations om itted). 19 in Exhibits 96 through 99 to im peach him , and the applications cannot be introduced as eviden ce of Plaintiff’s character for untruthfulness. Furtherm ore, Plaintiff’s pre-ENSCO personnel files also warrant exclusion under Federal Rule of Evidence 40 3. “Even if character eviden ce is deem ed adm issible un der Rule 60 8(b), its adm issibility is subject to Rule 40 3.”25 The Court finds that the personnel files in Exhibits 96 through 99, even if adm issible as extrinsic evidence, would warrant exclusion under Rule 40 3. The probative value of Plaintiff’s pre-ENSCO personnel files is m inim al an d is substantially outweighed by the danger of m isleadin g and confusing the jury. The objections to Exhibits 96 through 99 are SU STAIN ED . E XHIBIT 10 0 Exhibit 10 0 consists of docum ents from the Texas Workforce Com m ission. The Court has already excluded these docum ents. 26 The objection thus is SU STAIN ED . E XHIBIT 10 1 Exhibit 10 1 is ENSCO’s answers to interrogatories propounded by Plaintiff. The answers are signed only by defense counsel, not by ENSCO’s corporate representative, and thus am ount only to statem ents of counsel. For the reasons stated above with respect to objection to Exhibit 94, the objection to this exhibit is S U STAIN ED . E XHIBIT 10 2 Exhibit 10 2 is ENSCO’s response to requests for production propounded by Plaintiff. The answers are signed only by defense counsel, not by ENSCO’s corporate representative, and thus am ount only to statem ents of counsel. For the reasons stated 25 26 United States v. Skelton, 514 F.3d 433, 444 (5th Cir. 20 0 8). See R. Doc. 138. 20 above with respect to the objection to Exhibit 94, the objection to this exhibit is SU STAIN ED . E XHIBIT 10 3 Exhibit 10 3 is ENSCO’s supplem ental response to requests for production propounded by Plaintiff. The answers are signed only by defense counsel, not by ENSCO’s corporate representative, and thus am ount only to statem ents of counsel. For the reasons stated above with respect to Exhibit 94, the objection to this exhibit is SU STAIN ED . E XHIBIT 10 4 Exhibit 10 4 is ENSCO’s Corporate SHE Handbook. Plaintiff objects to this exhibit on the basis that portions of it are not relevant to this case. The objection is OVERRU LED as to the pages that are relevant to the accident-in-question. If the parties cannot agree on the relevant pages, they are to notify the Court no later than Mo n d ay, Ma y 2 3 , 2 0 16 , at 8 :3 0 a.m . E XHIBIT 10 5 The objection to this exhibit has been withdrawn. E XHIBIT 10 6 The objection to this exhibit has been withdrawn. E XHIBIT 10 7 The objection to this exhibit has been withdrawn. E XHIBIT 10 8 The objection to this exhibit has been withdrawn. E XHIBIT 10 9 The objection to this exhibit has been withdrawn. 21 IT IS SO ORD ERED . N e w Orle an s , Lo u is ian a, th is 2 2 th d ay o f May, 2 0 16 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 22
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