United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER ORDER DENYING IN PART
AND GRANTING IN PART MOTION TO EXCLUDE TESTIMONY OF DR.
Waddoups United States District Judge.
the court is Defendant Minnesota Life Insurance Co.’s
Motion to Exclude Testimony of Dr. Robert Rothfeder (ECF No.
32). The motion has been fully briefed, and the court heard
argument on the same on April 17, 2019. Having reviewed the
pleadings and materials submitted and considered the
arguments of counsel, the court now enters this order
DENYING IN PART AND GRANTING IN PART
is the daughter of the late Conrad Jahries. (ECF No. 2, at
¶ 1, Compl.) Mr. Jahries died in his home on October 17,
2015, at the age of 84. Id. at ¶ 5. His body
was found by his hospice nurse, Penny Johnson, who is now
deceased. Nurse Johnson reported that she found Mr. Jahries
“in the doorway to his bathroom . . . with his head
against the door jam [sic]” and with “copious
amounts of dried blood coming from his mouth and nose.”
(ECF No. 32-3.) No. one witnessed Mr. Jahries’s death,
and an autopsy was not performed on his body. On Mr.
Jahries’s death certificate, his cause of death was
attributed to a stroke. (ECF No. 33-7.)
Jahries was the owner of an accidental death and
dismemberment insurance policy (the “Policy), which
Defendant sold to him. (ECF No. 2, at ¶ 6, Compl.)
Plaintiff is the beneficiary of the Policy. The Policy states
that Defendant will only provide benefits “when the
insured’s loss results directly-and independently-from
all other causes, from an accidental bodily injury which was
unintended, unexpected and unforeseen.” (ECF No. 33-2,
at p. 4.) The Policy further states that “[t]he bodily
injury must be evidenced by a visible contusion or
wound” and that it “must be the sole cause of the
insured’s loss.” Id. The Policy excludes
payment “where the insured’s loss or injury is
caused directly or indirectly by, results from, or there is
contribution from . . . bodily or mental infirmity, illness
or disease . . . .” Id. at p. 5.
made a claim under the Policy. By letter dated May 25, 2016,
Defendant denied Plaintiff’s claim because Mr.
Jahries’s death was “caused directly or
indirectly by, resulted from or there was contribution from
bodily or mental infirmity, illness or disease.” (ECF
No. 33-10, at p. 2.) Defendant’s denial letter further
stated that it had not been provided any information to
support the conclusion that Mr. Jahries’s death
resulted from an accidental bodily injury. Id. On
March 17, 2017, Plaintiff, through her counsel, sent
Defendant a letter appealing its denial and offering evidence
to support her assertion that Mr. Jahries’s death was
the result of an accidental bodily injury. (ECF No. 33-12.)
Enclosed with this letter were: 1) a statement prepared by
Nurse Johnson, stating that she found Mr. Jahries “in
the doorway to his bathroom . . . with his head against the
door jam [sic]” and with “copious amounts of
dried blood coming from his mouth and nose” and a
letter written by Dr. Rothfeder, stating that it was his
“medical opinion in this matter is that Mr. Jahries
suffered a slip and fall ambulating to the bathroom, blunt
cranial trauma, and a fatal traumatic brain injury” and
that he “found no evidence that any of Mr.
Jahries’ [sic] chronic medical conditions contributed
in any way to his sudden death.” Id.
received and reviewed Mr. Jahries’s medical records and
referred the file to its own doctor, Dr. Dennis Lee. Dr. Lee
opined that the available records were both “consistent
and supportive” of the cause of death listed on the
death certificate (a stroke) and “supportive of a
medical event that cause[d] Mr. Jahries to collapse and be
later found deceased.” (ECF No. 33-16, at p.
2–3.) Defendant therefore upheld its denial of
thereafter initiated this action, seeking payment of benefits
and asserting that Defendant breached the Policy and acted in
bad faith in handling and denying its claim. The parties have
conducted discovery, including the depositions of Dr.
Rothfeder, Dr. Lee, and Dr. Joseph, who was the hospice
physician who signed Mr. Jahries’s death certificate.
Dr. Rothfeder’s testimony and reports focus on three
separate opinions: 1) that Mr. Jahries fell as a result of
slipping or tripping; 2) that the fall caused Mr. Jahries to
suffer blunt cranial trauma and a fatal traumatic brain
injury; and 3) that none of Mr. Jahries’s medical
conditions contributed in any way to his death.
(Id.; ECF No. 39-3 at p. 10.) These opinions, and
the information that Dr. Rothfeder relied on in reaching
them, are the focus of Defendant’s motion to exclude.
provides three arguments as to why Dr. Rothfeder’s
testimony should be excluded: first, because it is based off
the hearsay of Nurse Johnson; second, because Dr. Rothfeder
is not qualified to offer an opinion about the cause of the
trip and fall that he alleges Mr. Jahries suffered; and
third, because it is unreliable.
The court cannot find that Nurse Johnson’s
statements are inadmissible hearsay.
first argues that Dr. Rothfeder’s testimony should be
excluded because it is based off the hearsay statements of
Nurse Johnson. Defendant also argues, in the alternative,
that if Dr. Rothfeder is allowed to testify, he should be
excluded from offering these hearsay statements to support
his testimony. Two statements made by Nurse Johnson are at
issue. The first is her written memo in which she stated that
she found Mr. Jahries “in the doorway to his bathroom .
. . with his head against the door jam [sic]” and with
“copious amounts of dried blood coming from his mouth
and nose.” (ECF No. 32-3.) The second are statements
that she made to Dr. Rothfeder during a November 7, 2017
telephone conversation. Dr. Rothfeder took notes of this
conversation, which indicate that Nurse Johnson told him that
there was no imminent risk to Mr. Jahries’s health,
that he was a “major fall risk” and “was
supposed to use a walker or cane to ambulate,” and that
on October 17, 2015, she “found him on the floor with
his head against the [bathroom] door jamb, obviously moribund
[with] a lot of blood on his face, apparently from the mouth
and nose, with no obvious laceration.” (ECF No. 32-4.)
These notes further state that Nurse Johnson’s
“assumption was that [Mr. Jahries] had ambulated to the
[bathroom] without his walker and had taken a fall striking
his head on the way down.” Id.
asserts that these statements are “classic
hearsay” under Rule 801 of the Federal Rules of
Evidence. The court agrees; Nurse Johnson’s statements
were made out of court and are now being offered for their
truth-that Nurse Johnson found Mr. Jahries’s body lying
with his head against the bathroom door jamb and that she
assumed he had fallen while walking to the bathroom and died
as a result of hitting his head. Plaintiff responds that the
statements are nonetheless admissible under Rule
803(4)’s exception for statements made for medical
treatment. Rule 803(4) only applies to
“‘statements made by the one actually seeking or
receiving medical treatment’” and is therefore
inapplicable to statements that Nurse Johnson made concerning
Mr. Jahries’s heath. Cardall v. Thompson, 845
F. Supp. 2d 1182, 1187, n.3 (D. Utah 2012) (quoting Field
v. Trigg County Hosp., Inc., 386 F.3d 729 (6th
court cannot, however, rule as a matter of law that Nurse
Johnson’s statements would not be admitted under either
Rule 804 or 807. Rule 804(4) makes admissible an unavailable
witness’s statement regarding another’s death
“if the declarant . . . was so intimately associated
with the person’s family that the declarant’s
information is likely to be accurate.” Fed. R. Evid.
804(4)(B). Testimony was offered at the April17 hearing to
show that Nurse Johnson became close with Mr. Jahries’s
family after his death and before she made her statements.
Nurse Johnson clearly had ...