The opinion of the court was delivered by: Mary L. Cooper United States District Judge
The plaintiffs, Robert A. Geis ("Geis") and Kim Geis (collectively, "plaintiffs"), brought this action seeking damages for personal injuries incurred when Geis fell from a stepladder. The plaintiffs move to "redact and exclude at trial the history sections of all hospital and emergency medical transport records." (Dkt. entry no. 27, Not. of Mot.) Specifically, the plaintiffs object to the putative use by the defendant Tricam Industries, Inc. ("Tricam") of statements in two emergency transport service reports stating that Geis fell from a distance of six feet (the "challenged statements"). (Dkt. entry no. 27, Pl. Br. at 3-4.) The plaintiffs seek to bar from admission at trial the challenged statements as inadmissible hearsay not subject to any hearsay exception found in Federal Rule of Evidence 803 on the bases that (1) the declarant is unknown; (2) the statements were not made for the purpose of medical treatment or diagnosis so as to fall within Federal Rule of Evidence 803(4); and (3) the statements are not business records that would fall within Federal Rule of Evidence 803(6). (Pl. Br. at 5-7.) Tricam opposes the motion, contending that the declarant of the challenged statements is Geis himself, and therefore constitute admissions by a party-opponent, which by definition are not hearsay. (Dkt. entry no. 29, Tricam Br. at 2.)
Fed.R.Evid. 801(d)(2). Alternatively, Tricam argues that even if the declarant is unknown, both the medical diagnosis or treatment exception and the business records exception to the hearsay rule provide for the admissibility of the challenged statements. (Tricam Br. at 3-4, 9.)
I. The Challenged Statements
The first challenged statement is contained in the "Flight Critical Care Notes" in the records for "MONOC Flight 1," a helicopter transport that was dispatched in response to a request by Great Bay EMS to pick up Geis at the scene of the accident and transport Geis to Atlantic City Medical Center. (Dkt. entry no. 27, Gies Aff., Pa. 1-2.)*fn1 The MONOC Flight 1 record states: "P[atien]t . . . was standing on a step ladder on his deck outside his home when he fell off, falling approx. 6 ft. on to a grassy surface." (Id. at Pa. 2.) The MONOC Flight 1 record is signed by Brian O'Neill, a critical care paramedic. (Id. at Pa. 1-2.)
The second challenged statement is contained in the flight record for a helicopter transport that took Geis from Atlantic City Medical Center to Thomas Jefferson University Hospital. (Id. at Pa. 3.) This record indicates that Geis's "present illness/injury" was "Spinal Injury - CENTRAL CORD SYNDROME," the "Mechanism of Injury" was "Falls-Accidental," and that the fall was "Distance - 1 - 6 Feet" and described as "> 3 Steps." (Id.) It identifies the "Surface Landed on" as "Other WOOD DECK" and appears to have been prepared by Raymond Birkmire, the Flight Nurse. (Id. at Pa. 3, 9.)
The plaintiffs seek to exclude any reference in the medical transport records to Geis's fall being from a distance of six feet because it contradicts Geis's position, which he characterizes as having been "consistent and . . . reaffirmed in his deposition testimony," that "the ladder twisted as he was descending from its first [bottom] rung and that he fell to the ground." (Pl. Br. at 3; Gies Aff., Pa. 10, Thomas Jefferson Univ. Hospital "Trauma History & Physical Progress Notes" (stating that patient suffered a "fall on 4-18 from bottom rung of ladder"); Pl. Dep. at 44:6-10, 48:5-49:6 (stating that Geis told emergency medical responders that he fell from bottom rung or first step of ladder).)
II. Identity of Declarant of Challenged Statements
The identity of the declarant making the challenged statements must be ascertained in order to resolve the question of whether the challenged statements may be considered an admission by a party-opponent, and therefore not hearsay.
Fed.R.Evid. 801(d)(2). If the challenged statements are not admissions of a party-opponent, the identity of the declarant also has bearing on any determination as to whether either the business records or medical diagnosis exceptions to the hearsay rule would apply.
Tricam argues that the challenged statements "represent plaintiff's own statement to responding medical personnel" and that "it is evident from the records and the circumstances surrounding the generation of those records that the declarant is the plaintiff himself." (Tricam Br. at 2-3.) However, Tricam points to no support in the record for its assertion that Geis must have been the one to communicate the circumstances of the accident to emergency medical personnel. The MONOC Flight 1 record does not identify who told the medic who authored the record, Brian O'Neill, the circumstances of Geis's fall. That record indicates that the MONOC Flight 1 was dispatched in response to a request by Great Bay EMS. No source is identified for the challenged statement that Geis "fell off [a stepladder], falling approx. 6 ft. onto a grassy surface." (Gies Aff., Pa. 2.) Possible sources of the various statements contained within the "Critical Care Notes" include the patient himself, "BLS," and "MICU." BLS and MICU are not defined or otherwise identified, but appear from context to be the first responders to arrive at the scene of Geis's accident, attend to Geis, and bring Geis to the helicopter landing zone. There is simply no basis to conclude that Geis himself stated to O'Neill that he had fallen from a distance of six feet from the face of the MONOC Flight 1 record itself. See Amerisource Corp. v. RxUSA Int'l Inc., No. 02-2514, 2009 WL 235648, at *3 (E.D.N.Y. Jan. 30, 2009) (noting inapplicability of hearsay exception where "the declarant's source is unidentified," and stating "[s]uch unreliable, untestable evidence cannot be offered to a jury.").
The second challenged statement is even more cryptic with respect to the source of the statement, "Distance -- 1 -- 6 Feet." (Gies Aff., Pa. 3.) Possible sources of the information contained in the second flight report are not identified, and the author of the record, Raymond Birkmire, merely notes in the "Narrative" that after his flight team was dispatched to transport Geis, there was a "report received." (Id. at Pa. 9.) The Court finds no basis for assuming, as urged by Tricam, that Geis himself must have stated to Birkmire that he fell from a distance of one to six feet.
Because the records themselves do not indicate that Geis was the one to make the challenged statements, the challenged statements do not fall within the scope of Federal Rule of Evidence 801(d)(2). The challenged statements, to the extent Tricam intends to use them to prove the truth of the matter asserted, i.e., that Geis fell from a distance of six feet, are hearsay made by an unknown declarant or declarants, and may involve multiple levels of hearsay. The Pretrial Order does not list either O'Neill or Birkmire as a witness to be called to testify at trial, so the Court does not see how the identity of the unknown declarant(s) might be established as Geis through testimony. (Dkt. entry no. 25, ...