United States District Court, N.D. Mississippi, Aberdeen Division
M. BROWN UNITED STATES DISTRICT JUDGE
employment discrimination action is before the Court on the
City of Tupelo's “Motion in Limine
(Daubert).” Doc. #46.
November 1, 2016, Brandon Garrett filed a complaint in this
Court against the City of Tupelo, Mississippi. Doc. #1. The
complaint alleges that Garrett suffers from hypersensitivity
to mold and that the City is liable for damages under the
Americans with Disabilities Act for, among other things,
failing to transfer Garrett to a mold-free facility.
November 8, 2017, following a period of discovery, the City
filed a “Motion in Limine (Daubert)” seeking to
exclude under Federal Rules of Evidence 702, 703, and 704,
Garrett's medical records from the Maxwell Clinic. Doc.
#46. Garrett responded in opposition to the motion, Doc. #50,
and the City replied, Doc. #55.
considering the filings and relevant arguments, the Court
directed supplemental briefing on two issues: (1) whether the
rules governing admissibility of expert opinions apply to
opinions contained in business records, such as medical
records, otherwise admissible under Federal Rule of Evidence
803(6); and (2) whether in light of the arguments raised in
the Daubert motion, the challenged opinions in
Garrett's medical records lack trustworthiness within the
meaning of Rule 803(6)(E). Doc. #64. The parties filed
supplemental briefs as directed. Doc. #66; Doc. #67.
City's motion seeks to exclude Garrett's medical
records from the Maxwell Clinic because the opinions
contained in the records are unreliable under Rule 702's
Daubert standard. Doc. #46 at 1. Its supplemental
brief seeks exclusion of the same records as unreliable under
Daubert, and as untrustworthy under Federal Rule of
Evidence 803(6). Doc. #66 at 2, 4. In his supplemental
response, Garrett states that he does not intend to submit a
December 17, 2015, letter from David H. Haase, MD, which was
originally included in the medical records and specifically
referenced in the City's motion. Doc. #67 at 5. Garrett,
however, argues that the remaining portions of the medical
records are admissible. See id. at 1-5.
initial matter, the City cites no authority for the
proposition that inclusion of certain inadmissible opinions
renders an entire document, or collection of documents,
inadmissible. To the contrary, “portions of a report,
or a redacted copy of a report, may be admitted into evidence
where the report contains inadmissible evidence.”
Beechwood Restorative Care Ctr. v. Leeds, 856
F.Supp.2d 580, 589 (W.D.N.Y. 2012) (collecting cases).
Accordingly, even if the Court were to find the challenged
opinions here to be inadmissible, the proper remedy would be
exclusion of such opinions (and redaction at trial), not
exclusion of the records as a whole. Therefore, the
City's motion to exclude the entirety of the medical
records will be denied.
to the challenged opinions, references to mold in
Garrett's medical records may be classified into one of
four categories: (1) statements in Garrett's medical
history that he was exposed to mold, see, e.g., Doc.
#67-1 at 3; (2) statements in Garrett's medical history
that he suffers from a mold allergy or sensitivity, see,
e.g., id. at 5; (3) assessments that Garrett was exposed
to mold, see, e.g., id. at 6; and (4)
diagnoses that Garrett suffered from a mold infection,
see, e.g., id. at 11. Of these four types of
references, statements in the first and second categories are
not opinions and, therefore, are not implicated by the
City's motion. Thus, only the third and fourth categories
bear discussion here as implicated by the City's motion.
Rule of Evidence 803(6), which governs the admissibility of
business records, provides that:
record of an act, event, condition, opinion, or diagnosis
[are not excluded by the rule against hearsay] if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation,