United States District Court, S.D. New York
September 19, 2005.
MOHAMED KAMARA and MABINTY KAMARA, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge
MEMORANDUM OPINION AND ORDER
The parties in this personal injury action have consented to
trial before this Court, pursuant to 28 U.S.C. § 636(c).
Presently before the Court are several in limine motions,
which are addressed herein.
I. Defendant's Motion to Exclude Medical Records
Defendant United States of America ("Defendant" or "the
Government") seeks to exclude from evidence all records
originating from Celtic Medical P.C. ("Celtic"), which
purportedly reflect medical care Plaintiff Mohamed Kamara
("Plaintiff") received at Celtic. Defendant argues that its
motion should be granted because (1) Plaintiffs failed to comply
with Local Civil Rule 7.1 of the Southern District of New York,
in responding to the motion, and (2) the records contain hearsay,
have not been authenticated, and are untrustworthy.
A. Plaintiffs' Failure to Comply with Local Rule 7.1
Defendant contends that Plaintiffs violated Local Civil Rule 7.1 because they failed to file a memorandum of law with their
submissions in opposition to Defendant's in limine motion.
(See Reply Memorandum of Law in Further Support of Defendant's
Motion In Limine to Exclude All Records Originating from
Celtic Medical, P.C. ("Def.'s Reply"), at 2-4.) Instead of a
legal memorandum, Plaintiffs' counsel merely filed an
affirmation. (See Affirmation in Opposition to Defendant's
Motion In Limine for an Order Precluding Celtic Medical
Records ("Hoffman Aff.").) Moreover, the affirmation cites to no
Local Civil Rule 7.1 provides:
Except as otherwise permitted by the court, all
motions and all oppositions thereto shall be
supported by a memorandum of law, setting forth the
points and authorities relied upon in support of or
in opposition to the motion, and divided, under
appropriate headings, into as many parts as there are
points to be determined. Willful failure to comply
with this rule may be deemed sufficient cause for the
denial of a motion or for the granting of a motion by
Local Civ. R. 7.1. "An affirmation alone will not satisfy the
requirements of Rule 7.1." Microsoft Corp. v. K & E Computer
Inc., No. 00 Civ. 7550 (RLC), 2001 WL 332962, at *1 (S.D.N.Y.
Apr. 4, 2001) (where "defendants only filed an affirmation in
opposition to [plaintiff's] motion to dismiss, and they did not
cite to any legal authority," the requirements of Rule 7.1 were
not met); Wenzhou Wanli Food Co., v. Hop Chong Trading Co., No.
98 Civ. 5045 (JFK), 2000 WL 964944, at *3 (S.D.N.Y. July 11,
2000) ("Submitting an affidavit rather than a memorandum of law
is insufficient under Local Rule 7.1."); East 65 Street Realty Corp. v. Rinzler, No.
98 Civ. 6555 (RCC), 2000 WL 303279, at *3 (S.D.N.Y. Mar. 22,
Failure to file a memorandum of law in opposition to the
opposing party's motion is, by itself, a sufficient basis to
grant the motion. See Loew v. Kolb, No. 03 Civ. 5064 (RCC),
2003 WL 22271221, at *2 (S.D.N.Y. Sept. 30, 2003); Wenzhou,
2000 WL 964944, at *3; East 65 Street Realty Corp., 2000 WL
303279, at *2. Nevertheless, because the motion involves
evidentiary issues on which the law is straightforward, in the
interests of justice, the Court chooses to exercise its
discretion to address the motion on its merits.
II. Admission of Celtic Records as Business Records Under Rule
Defendant claims that the Celtic Records should not be admitted
as business records under the hearsay exception set forth in
Federal Rule of Evidence 803(6), because the source of the
information for, and circumstances surrounding the preparation of
these records, lack trustworthiness. As a corollary to this
argument, Defendant contends that the Celtic documents have not
been authenticated, as required by Federal Rule of Evidence
Federal Rule of Evidence 901(a) provides that "the requirement
of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims." F.R. Evid. 901(a). As the Second Circuit has observed,
"Rule 901 does not erect a particularly high hurdle, and the
proponent of the evidence is not required to rule out all
possibilities inconsistent with authenticity, or to prove beyond
any doubt that the evidence is what it purports to be." United
States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001) (internal
quotation marks and citations omitted). "Rule 901's requirements
are satisfied if sufficient proof has been introduced so that a
reasonable juror could find in favor of authenticity or
identification." United States v. Tin Yat Chin, 371 F.3d 31, 38
(2d Cir. 2004) (internal quotation marks omitted) (quoting
United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999)).
Plaintiffs contend that the Celtic records were authenticated
by Dr. Lev Tayts ("Tayts"), the former medical director of
Celtic. Defendant responds, however, that Tayts's purported
authentication was unreliable. For example, at his deposition,
Tayts testified that he was the medical director of Celtic
Medical P.C., from its inception in the year 2000, until it
ceased to exist in 2002. (See Deposition of Dr. Lev Tayts, Jan.
25, 2005 ("Tayts Dep.") at 15-17, attached as Ex. B to Hoffman
Aff.) Although Tayts claimed to be a salaried employee of Tayts,
paid on an hourly basis for treating patients, and paid an
additional sum for serving as medical director (Tayts Dep. at 21-23), various documents identify Tayts
as an owner and the Chief Executive Officer of Celtic. (See
Defendant's Motion In Limine to Exclude All Records
Originating from Celtic Medical P.C., Exs. C and D.) Tayts also
conceded that Celtic was registered in his name with the New York
Department of State. (Tayts Dep. at 20-21.)
Moreover, Tayts purported to authenticate only one set of
Celtic documents, which were produced in response to a subpoena
issued by Defendant to Tayts. However, those records were not
maintained by Tayts, but were provided to him by Plaintiffs'
counsel. (See Tayts Dep. at 14:16) Plaintiffs' counsel claims
to have secured the records from the Celtic custodian of records,
(id. at 14:19), who Tayts could not identify (id. at 17:22).
These records were labeled Tayts Ex. 1 and were Bates-stamped
"Celtic" 1 through 29. Tayts did not attempt to authenticate any
of the other medical records. In addition, although Tayts
casually stated that the records were Celtic records (id. at
15), it is apparent that some of the documents were not Celtic
records, as they were written on the letterheads of other
entities, such as West Tremont Medical Diagnostics, P.C., Precise
Radiology, P.C., and Multiquest (P.L.L.C.). (Tayts Ex. 1,
documents Bates-stamped Celtic 4-16.) Tayts was incapable of
authenticating these documents, as he was unable to provide any
information about the corporate entities out of which they
purported to originate, and Plaintiffs' counsel conceded that Tayts had no knowledge of entities other than
Celtic. (Tayts Dep. at 25-28, 34-35.) Therefore, Tayts could only
legitimately authenticate those documents which were on the
Celtic Medical letterhead, and which appear to have been written
by Dr. Montazem ("Montazem"), a former physician who worked at
Celtic, or himself.
Some of the documents were on Celtic letterhead, contained
notes which appeared to have been written either by Dr. Tayts or
Dr. Montazem, and were identified by Tayts as Celtic documents.
(See id. at 14-15; Documents Bates-stamped 1-3, 17-29.) As
reasonable jurors could find that those documents were, in fact,
Celtic documents, they have been sufficiently authenticated. No
other documents were authenticated, and they are thus
Defendant contends that, although medical records are normally
admissible under the business records exception to the hearsay
rule, the Celtic records fail to meet the "trustworthiness"
requirement of Federal Rule of Evidence 803(6) because: (1)
Celtic Medical P.C. no longer exists, and no custodian of records
is available to testify as to the method by which the records
were generated and maintained by Celtic (see Memorandum of Law
in Support of Defendant's Motion In Limine to Exclude All
Records Originating from Celtic Medical P.C. ("Def.'s Mem.") at
10-11); and (2) the sworn statements of Dr. Tayts, and Dr.
Montazem, the Celtic physician who purportedly treated Plaintiff, raise serious
concerns about the accuracy, reliability, and trustworthiness of
the records (id. at 11-13).
Federal Rule of Evidence 803(6) provides, as an exception to
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, or by certification that complies with Rule
902(11), Rule 902(12), or a statute permitting
certification, unless the source of information or
the method or circumstances of preparation indicate
lack of trustworthiness.
Fed.R.Evid. 803(6). "Medical records . . . can be admissible
under Federal Rule of Evidence 803(6), provided they are prepared
in the regular course of business, near the time of occurrence,
by a person with knowledge and are properly authenticated."
Hodges v. Keane, 886 F. Supp. 352, 356 (S.D.N.Y. 1995) (citing
Romano v. Howarth, 998 F.2d 101
, 108 (2d Cir. 1993)). "The
principal precondition to admission of documents as business
records pursuant to Fed.R.Evid. 803(6) is that the records have
sufficient indicia of trustworthiness to be considered reliable."
Saks Int'l, Inc. v. M/V "Export Champion", 817 F.2d 1011
(2d Cir. 1987). See also Romano, 998 F.2d at 108; Giles v.
Rhodes, No. 94 Civ. 6385 (CSH), 2000 WL 1425046, at *8-9
(S.D.N.Y. Sept. 27, 2000). When no "custodian of records or other qualified witness" is
available to testify as to the trustworthiness of the "source of
information or the method or circumstances of preparation" of a
record, it is ordinarily inadmissible under Rule 803(6). United
States v. Mason, No. S17 96 Cr. 126 (JFK), 2000 WL 791926, at
*1-2, (S.D.N.Y. June 19, 2000) (bill of sale from an auto
dealership that no longer existed, and from which no employee
could be located to authenticate the record, was inadmissible).
However, the failure to have business records authenticated by
the custodian of records does not necessarily preclude their
admissibility. See United States v. Manshul Construction
Corp., No. 93 Civ. 0308 (JGK) (THK), 1996 WL 267945, at *5
(S.D.N.Y. May 20, 1996) ("Although it is not necessary that the
foundation for the receipt of business records into evidence be
laid by the person who prepared them, the Rule clearly requires
that a foundation be established through a qualified witness.")
(internal citations omitted).
Although Plaintiffs failed to produce the Celtic custodian of
records, they argue that Dr. Tayts is a qualified witness who has
authenticated the Celtic records and has established their
trustworthiness. The Court can only partially agree. Tayts did
not lay any foundation for the admission of the records. As
discussed, the records were provided to Tayts by Plaintiffs'
counsel (Tayts Dep. at 28:5), even though the document subpoena
was addressed to Tayts (see id. at 26:22). After looking at
the documents, Tayts merely stated that they were Celtic records.
(Id. at 15:10.) He provided no testimony as to the method by
which the records were created, when they were created or by
whom, how the records were kept, or any other details that would
support the trustworthiness of the documents. In fact, as
discussed, several of the documents are obviously not Celtic
documents. (Tayts Ex. 1, documents Bates-stamped Celtic 4-16.)
Moreover, Defendant has raised serious questions as to the
legitimacy of Celtic's operation, including Dr. Tayts's role at
In addition, Defendant raises legitimate questions about the
trustworthiness of the Celtic records. For example, Plaintiff
claims to have been treated at Celtic primarily by Dr. Montazem,
and many of the Celtic documents appear to have been completed by
Montazem. Yet, Montazem submitted a sworn declaration in support
of Defendant's motion, in which he stated that he had no
recollection of treating Plaintiff, and his review of various
Celtic documents purporting to relate to Plaintiff did not
refresh his recollection. (See Declaration of H. Harry Montazem
(Montazem Decl."), ¶¶ 2-3.)*fn2 Based on his experience at
Celtic, Montazem did not consider Celtic records to be reliable.
(Id. ¶ 5.) He did not type or supervise the typing of the
records, even those purportedly signed by him. (Id.) According
to Montazem, typed records at Celtic often contained significant
inaccuracies. (Id.) Moreover, according to Montazem, even those
typed documents that appear to show Montazem's signature do not
necessarily reflect that he had written and reviewed them, since
the staff at Celtic had a rubber stamp with his signature, which
was often placed on the typed records without his knowledge.
Montazem's declaration certainly casts a cloud of suspicion
over the trustworthiness of the Celtic records. Nevertheless,
nobody questions that Celtic was functioning as a healthcare
clinic and that Tayts and Montazem were employed by Celtic. Some
of the documents are on Celtic letterhead, relate to what appear
to be specific medical encounters with Plaintiff, and either
contain Montazem's signature or were in Tayts's handwriting. Even
in his declaration, Montazem did not explicitly state that he was
not the author of the documents which appear to bear his
signature, or that the documents did not accurately reflect his findings. Moreover,
Plaintiffs' attorney has not had an opportunity to question
Montazem about the documents which contain his signature. Where
records are kept in the regular course of business, and it is the
regular practice of the business to make such records, "the
principal means of establishing the reliability of a hearsay
statement offered under [Rule 803(6)]" is that the person
providing the information in the records have a business duty to
do so. United States v. Reyes, 157 F.3d 949, 952 (2d Cir.
1998). The Court can reasonably assume that Montazem had a
business duty to complete records documenting his examinations of
patients, and his declaration does not indicate otherwise.
Although Defendant has raised serious questions about the
trustworthiness of, and weight to be given to, the Celtic
records, the Court reserves judgment on their admissibility until
it hears testimony from Tayts and Montazem about the specific
records in issue, as well as their general procedures in
documenting patient encounters at Celtic and for maintaining
Celtic records. Cf. Commerce Funding Corp. v. Comprehensive
Habilitation Servs., Inc., No. 01 Civ. 3796 (PKL), 2004 WL
1970144, at *4 (S.D.N.Y. Sept. 3, 2004) ("A motion in limine
to preclude evidence calls on the court to make a preliminary
determination on the admissibility of the evidence under Rule 104
of the Federal Rules of Evidence. . . . The Court's ruling
regarding a motion in limine is subject to change when the case unfolds.") (internal quotation marks omitted)
(quoting Luce v. United States, 469 U.S. 38, 41 (1984)). The
remaining documents, which are not on Celtic letterhead and have
no appearance of being written by either Tayts or Montazem, will
not be admitted pursuant to the business records exception to the
hearsay rule, since they have not been authenticated and no
foundation for their admission has been established.
III. Plaintiffs' Motion to Exclude Government Exhibits L, M,
O, S, T, V, W, X, and Y
Plaintiffs move to exclude (1) Government's ("Govt.'s") Exhibit
("Ex.") L, consisting of records received from the State
Insurance Fund; (2) Govt.'s Ex. M, ISO Claimsearch documents; (3)
Govt.'s Ex. O, medical records from Drs. Russell Berdoff and
Ranjit Josiah; (4) Govt.'s Ex. S, medical records from Drs.
Edward King and Ruvan Shein; (5) Govt.'s Ex. T, records from Rite
Aid Corporation; (6) Govt.'s Ex. W, New York City Taxi and
Limousine Commission records; (7) Govt.'s Ex. X, Social Security
Administration records; (8) Govt.'s Ex. V., documents relating to
a state court action entitled Kamara v. Excellent Bagels; and
(9) Govt.'s Ex. Y, documents relating to a state court action
entitled Kamara v. City Line Hyundai. Plaintiffs contend that
these exhibits should be excluded pursuant to Federal Rule of
Evidence 402, because they are irrelevant to this action, have no
probative value, and are prejudicial. Defendant responds that
Plaintiffs' motion should be denied because (1) Plaintiffs failed to comply
with Local Civil Rule 7.1, by failing to file a memorandum of law
with the motion and failing to cite any legal authority in
support of their motion; and (2) all of the exhibits are relevant
to the issues of causation, damages, and Plaintiffs' credibility.
The Court agrees.
Leaving aside the procedural defect in Plaintiffs' motion,
which by itself merits denial of the motion, all of the proposed
exhibits are relevant to Plaintiffs' claims and the Government's
defenses because they may establish that Plaintiff Mohamed Kamara
was involved in a prior accident, which he failed to disclose,
and, as a result of that accident, he may have sustained injuries
similar to the ones he claims in this action. Although Plaintiff
contends that the exhibits relate to another individual, with a
different social security number than his, Defendant has
proffered evidence tending to establish that the Mohamed Kamara
identified in the disputed exhibits is in fact Plaintiff. This
issue can only be resolved at trial, as it turns largely on
Plaintiffs' credibility. In addition, Government Exhibit Y, the
transcripts of Plaintiffs' depositions from an action filed by
Plaintiff Mabinty Kamara, contain sworn statements from the
Plaintiffs which bear on Plaintiff Mohamed Kamara's ability to
perform various tasks at a time subsequent to the accident in
issue in this action. They are therefore relevant to determining
the extent and consequences of the injuries Plaintiff claims to have suffered in the accident in
issue in this action, as well as Plaintiff's credibility.
All of the arguments Plaintiffs raise in support of their
motion are relevant only to the weight the Court should accord
these exhibits, rather than their admissibility. Moreover, while
Plaintiffs' case may be harmed by the material in the exhibits,
contrary to Plaintiffs' contention, such harm is not the
"prejudice" which Federal Rule of Evidence 403 is intended to
protect against. "The prejudice that Rule 403 is concerned with
involves some adverse effect . . . beyond tending to prove the
fact or issue that justified its admission into evidence." Perry
v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997) (internal
quotation marks omitted) (quoting United States v. Gelzer,
50 F.3d 1133, 1139 (2d Cir. 1995)). Admission of the exhibits would
not be unfair to Plaintiffs. Moreover, because this case will be
tried to the Court, there is no chance of unduly prejudicing or
confusing a jury. See Commerce Funding Corp., 2004 WL
1970144, at *5 ("While the Rules of Evidence apply with equal
force in jury and non-jury trials, courts often apply the
relevance standard with little rigor during a bench trial. The
Second Circuit has noted that ordinarily it may be the more
prudent course in a bench trial to admit into evidence doubtfully
admissible records. While standards for admissible evidence are
not out the window entirely in a bench trial, all doubts at a
bench trial should be resolved in favor of admissibility.") (internal citations and quotation marks
Accordingly, Plaintiffs' motion to exclude Defendant's exhibits
IV. Defendant's Motion to Bar Plaintiffs' Use of Deposition
Defendant seeks to bar Plaintiffs' use of deposition testimony,
in lieu of trial testimony, of Drs. Stanley Liebowitz, Lev Tayts,
and Thomas Scilaris. These doctors treated Plaintiff Mohamed
Kamara's injuries following his July 2001 accident. In addition,
Dr. Liebowitz has been retained as Plaintiffs' expert. Defendant
argues that the deposition testimony is inadmissible hearsay.
Plaintiffs respond that the sworn deposition testimony is not
inadmissible hearsay because (1) the requirements of Federal Rule
of Evidence 804(b)(1) have been satisfied, (2) the deposition
testimony falls within the residual exception to the hearsay
rule, pursuant to Federal Rule of Evidence 807, and (3) it would
be unnecessarily expensive and time-consuming to require the
three doctors to testify at trial.
The deposition testimony is inadmissible hearsay. Although Rule
804 provides an exception to the hearsay rule for "[t]estimony
given as a witness . . . in a deposition taken in compliance with
law . . . if the party against whom the testimony is now offered
. . . had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination," Fed.R.Evid.
804((b)(1), such testimony is not excluded as hearsay only "if
the declarant is unavailable as a witness." Fed.R.Evid. 804(b).
See also United States v. Salerno, 505 U.S. 317, 321,
112 S. Ct. 2503, 2507 (1992) ("Nothing in the language of Rule 804(b)(1)
suggests that a court may admit former testimony absent
satisfaction of each of the Rule's elements."). Moreover, because
Dr. Liebowitz has been retained as Plaintiffs' expert, an even
greater showing than mere unavailability is required to excuse
his attendance at trial. See Carter-Wallace, Inc. v. Otte,
474 F.2d 529, 536 (2d Cir. 1972); Aubrey Rogers Agency, Inc. v.
AIG Life Ins. Co., No. Civ.A.97-529, 2000 WL 135129, at *2 (D.
Del. Jan. 13, 2000). Plaintiffs have made no such showing. They
have not argued or demonstrated that the three physicians are
unavailable to testify at trial. Accordingly, their deposition
testimony is inadmissible hearsay.
Moreover, the deposition testimony does not fall within the
residual hearsay exception provided by Federal Rule of Evidence
807. That Rule only applies to "[a] statement not specifically
covered by Rule 803 or 804. . . ." Fed.R.Evid. 807. Deposition
testimony is covered by Rule 804, and the requirements for the
admission of such testimony have not been satisfied.
To the extent that Plaintiffs wish to expedite the trial, they
shall be permitted to submit their direct examination of these
witnesses through affidavits. However, Defendant will not be deprived of the opportunity to cross-examine the witnesses before
the Court. Contrary to Plaintiffs' contention, the Court has as
great a need to assess the witnesses' credibility as would a
Accordingly, Defendant's motion to exclude the deposition
testimony of Drs. Tayts, Liebowitz, and Scilaris is granted.
Counsel are to appear at a final pretrial conference on October
6, 2005, at 11:00 a.m., in Courtroom 17A. They should come
prepared to discuss settlement of the action and the scheduling
of the trial.
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