Commercial Litigation and Arbitration

Internet Evidence — Printouts from Third Party, Private Websites (Here, Medical) = Inadmissible Hearsay and Are No Substitute for Expert Testimony on Causation

2. Defendants' Motion to Strike Printouts of Internet Websites [*12] 

Hernandez v. Smith, 2015 U.S. Dist. LEXIS 90740 (E.D. Cal. July 12, 2015):

This action is proceeding against Defendants Drs. R. D. Smith and L. Kirk for deliberate indifference to Plaintiff's serious medical needs in their treatment of two of his teeth in violation of the Eighth Amendment.***

Defendants move to strike two of Plaintiff's exhibits submitted in support of his opposition which are printouts of Internet websites as inadmissible hearsay and as unauthenticated. Fed. R. Evid. 602, 701, 702, 801, 802. (ECF No. 71.)

Exhibit 0:17, is an Internet printout entitled "Web MD Preventing and Treating Gum Disease." (Pl.'s Opp'n, ECF No. 56, at 59, Ex. 0:17.) Exhibit 0:18-0:23, is an Internet printout entitled "Bupa (Gum Disease)." (Pl.'s Opp'n, ECF No. 56 at 60-66, Ex. 0:18-0:23.)

Defendants' objections that the documents printed from the internet comprising of Exhibits 0:17-0:23 lack foundation, authentication and is hearsay are SUSTAINED. Plaintiff has failed to produce evidence that these documents are what Plaintiff claims them to be and he cannot lay a foundation for records composed by third parties because he lacks personal knowledge regarding their contents and such documentation is hearsay. Fed. R. Evid. 602, 801, 902. Plaintiff does not submit the testimony of a witness with knowledge of the documents. Fed. R. Evid. 901. In addition, this evidence cannot be introduced in place of expert testimony regarding medical causation. See Walker v. Contra Costa County, Nos. C03-3723 THE, C05-2800 TEH, 2006 U.S. Dist. LEXIS 86339, 2006 WL 3371438, at *9 (N.D. Cal. Nov. 21, 2006) [*13] ; Domingo v. T.K., 289 F.3d 600, 607 (9th Cir. 2001) (competent expert testimony is required to establish medical causation between a particular event and any injury); Scott v. MTA Keller, No. 2:07-cv-00184, 2010 U.S. Dist. LEXIS 95738, 2010 WL 3635728, *6 (E.D. Cal. Sept. 14, 2010).

In any event, even if the Court were to consider such documentation, it has little relevance as the articles do not describe any definitive treatment of Plaintiff's condition, and nothing in the printouts suggests the treatment recommended or administered by either Defendant was not appropriate given Plaintiff's dental issues.


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