Facts known only to a decedent can be deadly difficult to prove. The plaintiff’s decedent in Brown v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 5091 (N.D. Ill. Jan. 18, 2008), died as a result of a stroke that his widow attributed to his ingestion of Contac.® It was essential on the issue of causation to prove ingestion within 72 hours of death, but the plaintiff had not seen her husband take Contac® then. The case boiled down to the admissibility of the testimony of three of the couple’s children that their father made statements to each of them that he had been taking the medicine on each of the three days before he died. The plaintiff first argued that the statements fell within Fed.R.Evid. 803(4):

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The problem is that it wasn’t true — the statements were not made for purposes of medical diagnosis or treatment. They were simply statements of a parent to each of his children as to the medication he was taking. “Plaintiff does not argue that any of Mr. Brown's children were healthcare professionals or that he was seeking treatment from them when he was discussing his ingestion of Contac®. Therefore, the testimony concerning Mr. Brown's statements made to his children does not fall within the hearsay exception provided by Federal Rule of Evidence 803(4)....” The plaintiff then contended that the statements were admissible pursuant to Fed.R.Evid. 803(3):

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Similar problem: The father’s statements to his children that he had a cold may have fallen within 803(3), but not the fact that he had taken Contac®:

Mr. Brown's purported statements do not touch upon his then existing state of mind, emotion, sensation or physical condition. Instead, they are statements of a recollection he was then experiencing- that he had taken Contac® at the various earlier times mentioned to his children. As such, they are precisely the type of statements excluded from the hearsay exception- "not including a statement of memory or belief to prove the fact remembered..."

Held, the statements were inadmissible and therefore could not be considered in defense of defendants' summary judgment motions because “[e]vidence relied upon during summary judgment proceedings must be competent evidence of a type otherwise admissible at trial.” One other useful quote. One of the defendants, GlaxoSmithKline asserted in its brief in support of its motion for summary judgment that it had not been properly served, and the plaintiff failed to respond to that assertion. Judge David Coar ruled: “Since failure to address an issue is akin to waiving it, this Court hereby dismisses GlaxoSmithKline PLC from this action”