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KAMARA v. U.S.

September 19, 2005.

MOHAMED KAMARA and MABINTY KAMARA, Plaintiff,
v.
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 legal authority.

  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 default.
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, 2000) (same).

  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 803(6)

  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 901(a).

  A. Authentication

  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 ...


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