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Stapley v. Minnesota Life Insurance Co.

United States District Court, D. Utah

May 8, 2019

KELLY STAPLEY, Plaintiff,
v.
MINNESOTA LIFE INSURANCE CO., Defendant.

          MEMORANDUM DECISION AND ORDER ORDER DENYING IN PART AND GRANTING IN PART MOTION TO EXCLUDE TESTIMONY OF DR. ROTHFEDER

          Clark Waddoups United States District Judge.

         Before 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 Defendant’s motion.

         BACKGROUND

         Plaintiff 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.)

         Mr. 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.

         Plaintiff 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.

         Defendant 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 Plaintiff’s claim.

         Plaintiff 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.

         ANALYSIS

         Defendant 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.

         A. The court cannot find that Nurse Johnson’s statements are inadmissible hearsay.

         Defendant 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.

         Defendant 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 Cir.2004)).

         The 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 ...


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