New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Evidence of Earlier Preliminary Injunction Ruling and Other Litigations Excluded from Jury Trial Under 403 — Prior Arbitration Award Excluded as Hearsay — Brief of Party in Other Litigation Excluded as Hearsay

Download PDF

From Park West Radiology v. CareCore Nat’l LLC, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009):

[Preliminary Injunction Ruling.]

Plaintiffs move to exclude any references to the Court's Preliminary Injunction Ruling as irrelevant and prejudicial pursuant to FRE 402 and 403. Defendants seek to introduce evidence related to the Preliminary Injunction Ruling, but not the ruling itself, to support a standing defense. Defendants argue that because Plaintiffs requested injunctive relief that would preclude CareCore from denying Plaintiffs access to reimbursement from commercial payors that contract with CareCore, they essentially "were seeking to join CareCore, the very organization that [Plaintiffs] allege is an illegal cartel." *** The Court agrees with Plaintiffs and finds that even if Defendants show that the Preliminary Injunction Ruling is relevant, any references to the Court's Preliminary Injunction Ruling are likely to unduly influence the jury. Considering the risk of undue influence on the jury pursuant to FRE 403, references to the making of the motion, as opposed to the Preliminary Injunction Ruling itself, will also not be permitted without prior ruling by the Court sought at sidebar or in the jury's absence. Accordingly, Plaintiffs' motion is GRANTED. ***

[Arbitration Decision]

The Court agrees with Defendants that the Arbitration Decision should be excluded as hearsay. Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). The arbitrator will not be testifying at trial and Plaintiffs do not seek to use the Arbitration Decision for any purpose other than to prove the substance and outcome of the arbitration, in other words, for the truth of the matter asserted. Nor is the Arbitration Decision subject to admission as nonhearsay through an exception. Further, as this Court held in Cary Oil Co., Inc. v. MG Refining & Marketing, Inc., the Arbitration Decision should be excluded because of its prejudicial effect, pursuant to FRE 403. See 257 F. Supp. 2d 768, 773-74 (S.D.N.Y. 2003). The Arbitration Decision, if introduced, "could encourage the jury to make a decision on how much blame to assign to Defendants based on the arbitration panel's findings, not on the jury's own deliberations." Id. ***

XI. OTHER LITIGATIONS BROUGHT AGAINST CARECORE

Defendants move to exclude any evidence concerning the following litigations brought against CareCore: *** (collectively, the "Other Litigations"). Defendants argue that the pleadings from the Other Litigations constitute inadmissible hearsay under FRE 802 and that any probative value of the evidence of the Other Litigations is substantially outweighed by the risk of unfair prejudice to CareCore under FRE 403. Plaintiffs, having themselves moved in limine to exclude certain evidence relating to other litigations, do not object to the exclusion of the evidence of the Other Litigations. The Court is persuaded that the pleadings in the Other Litigations constitute inadmissible hearsay under FRE 803 and that any probative value of references to the Other Litigations is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, and waste of time under FRE 403. Accordingly, Defendants' motion to exclude evidence of the Other Litigations is GRANTED. ***

XIII. BANKRUPTCY FILING

Defendants move to exclude the Bankruptcy Filing, which includes statements that Manhattan Imaging's "core value is derived in large measure from its interest and participation in CareCore"; "the lion's share of [Manhattan Imaging's] patient referral base is directly tied to its participation in CareCore"; and "[t]he termination of the CareCore relationship would altogether undermine [Manhattan Imaging's] referral base, business model and value." ... Defendants argue that the statements contained in the Bankruptcy Filing are irrelevant and unfairly prejudicial pursuant to FRE 402 and 403. Defendants also assert that the Bankruptcy Filing, prepared by attorney Robert R. Leinwand ("Leinwand") and based on out of court statements made by his clients, constitutes inadmissible double hearsay pursuant to FRE 801 and 802.

Plaintiffs argue that the Bankruptcy Filing contains highly probative evidence that is not unfairly prejudicial to Defendants. Plaintiffs also claim that the Bankruptcy Filing is admissible hearsay pursuant to the business record exception and the residual exception, FRE 807.

The business records exception does not apply here. To be admitted under the business record exception, the record must be made "in the course of regularly conducted business activity." Fed. R. Evid. 803(6). The Court finds that the Bankruptcy Filing was not made or kept in the course of Manhattan Imaging's regularly conducted business activity, but rather was made by bankruptcy attorneys recollecting prior events.

Plaintiffs have also failed to establish that the Bankruptcy Filing meets the requirements of admissibility under FRE 807. The residual exception permits a court to admit hearsay where it has circumstantial guarantees of trustworthiness and:

the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Fed R. Evid. 807. "Congress intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances." Parsons v. Honeywell, Inc., 929 F.2d 901, 907-08 (2d Cir. 1991) (citations and internal quotation marks omitted). Even though the Bankruptcy Filing was prepared and certified by an officer of the Court, the attorney responsible was acting as an advocate for his client. As such, the Court finds that the Bankruptcy Filing does not possess any guarantees of trustworthiness and cannot be admitted under the residual exception.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice