                              SUPERIOR COURT
                                   of the
                            STATE OF DELAWARE
Jeffrey J Clark                                             Kent County Courthouse
  Judge                                                          38 The Green
                                                                Dover, DE 19901
                                                           Telephone (302)735-2111

                                   August 10, 2018

Daniel C. Herr, Esquire                       Steven T. Margolin, Esquire
Law Office of Daniel C. Herr, Esquire         Samuel L. Moultrie, Esquire
1225 North King Street                        Greenberg Traurig, LLP
Suite 1000                                    The Nemours Building, Suite 1200
Wilmington, DE 19801                          Wilmington, DE 19801

Johnine P. Barnes, Esquire
Greenberg Taurig, LLP
2101 L. Street, N.W., Suite 1000
Washington, DC 20037


                  RE: Suzanne Wilgus v. Bayhealth Medical Center, Inc.
                      K17C-07-032 JJC

                               Submitted: August 2, 2018
                               Decided: August 10, 2018

Counsel:

       This letter addresses Plaintiff Suzanne Wilgus’s (hereinafter “Ms. Wilgus”)
motion in limine seeking to admit a medical record into evidence at trial set to begin
on August 27, 2018. This case involves an allegation that Defendant Bayhealth
Medical Center, Inc. (hereinafter “Bayhealth”) discriminated against Ms. Wilgus
because she had a record of disability. 1 Ms. Wilgus was cleared to return to work
on January 5, 2017, without restrictions following approximately six months of total
temporary disability leave. Ms. Wilgus proffers that her treating physician, Dr.
Boulos, nevertheless orally advised her to wear a back-brace for the first several
weeks after she returned to work. Ms. Wilgus claims that she informed Bayhealth
personnel of this and that they refused to provide her with a reasonable
accommodation and wrongfully terminated her. On the other hand, Bayhealth
claims it was justified in terminating her because of its policy against permitting
such assistive devices in the work place for health conditions not covered by law.
       At issue in this motion is a March 2, 2017, medical record from Dr. Boulos’s
office, authored two months after Ms. Wilgus’s scheduled return-to-work date. That
record references Dr. Boulos’s findings as of the date of that visit, and his past advice
that he “wanted her to wear her back-brace while she was at work for some added
support.”
       Bayhealth objected to this exhibit in the pretrial stipulation alleging lack of
foundation, authenticity, relevance, and Delaware Rule of Evidence (hereinafter
“D.R.E.”) 403 concerns. At the pretrial conference, Bayhealth also lodged a hearsay
objection. Ms. Wilgus responded by moving in limine for its admission.                     In
Bayhealth’s written response to the motion, it focuses only on the hearsay and
relevance objections.      By footnote, Bayhealth also seeks to preserve its other
objections for trial, pending the testimony of a records custodian.
       With regard to the hearsay objection, Ms. Wilgus argues that the record is
admissible pursuant to two hearsay exceptions – the medical records exception in
D.R.E. 803(4) and the business records exception in D.R.E. 803(6). First, Ms.
Wilgus argues that the record is admissible under D.R.E. 803(4), because it was a

1
 Ms. Wilgus alleges a violation of Delaware’s Persons With Disabilities Employment Protections
Act as codified in 19 Del. C. § 720 et seq.

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statement made for purposes of medical diagnosis or treatment. After reviewing the
record and relevant authority, the Court agrees with Bayhealth’s position that the
exception for declarations made for purposes of securing medical treatment or
diagnosis applies only to a patient’s statements made to medical providers.2 While
the March 2, 2017, record references some minimal matters that may have come
from Ms. Wilgus’s statements as the patient, the relevant statements regarding the
back-brace were obviously made by her treating physician, Dr. Boulos. Such
statements do not fall within this hearsay exception.
       Second, Ms. Wilgus argues that the March 2, 2017, record is admissible based
on the business record exception to the hearsay rule. In order to fit within the D.R.E.
803(6) exception, the proponent must establish the following four requirements:
       (1) the record must be made at or near the time of the act or event;
       (2) it must be made by or from information transmitted by a person with
           knowledge;
       (3) the record must be prepared and maintained in the course of
           regularly conducted business activity; and
       (4) it must be the organization’s regular practice to record the act or
           event.3

       To assist in trial planning for both sides, the Court is able to definitively
address the matters in controversy; nevertheless, a final decision on admissibility
must await the testimony of a records custodian.4 In that regard, the Court will
conduct a D.R.E. 104(a) hearing outside the presence of the jury to determine if Ms.

2
  See Brown v. Liberty Mut. Ins. Co., 774 A.2d 232, 241–242 (Del. 2001) (stating that a doctor’s
notation “did not satisfy the requirements for admission as a statement for the purpose of medical
treatment or diagnosis.”); see also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564
(7th Cir. 1996) (recounting that 803(4) does not “except, nor can it reasonably be interpreted as
excepting [from hearsay], statements by the person providing the medical attention to the
patient.”); and 30B Fed. Prac. & Proc. Evid. § 6847 (stating that “[s]tatements form a doctor to the
patient regarding diagnosis and treatment are not covered by [803(4)].”).
3
  Brown, 774 A.2d at 238 (citations omitted).
4
  The parties are encouraged to confer to determine, in light of this order, whether the testimony
of a records custodian will be necessary.

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Ward can establish the four criteria of this hearsay exception by a preponderance of
the evidence.
       In directly addressing the matters raised by the parties in this motion, on its
face, the medical record appears to be a record drafted at or near the time of the
office visit at issue. It also appears to be an electronic record that was printed on
practice letterhead. The Court is not persuaded by Bayhealth’s argument that the
record is inadmissible because it contains multiple layers of hearsay. It is well
recognized that “when the source and the recorder of the information, as well as
every other participant in the chain producing the record, are acting in the regular
course of business, multiple hearsay is excused by DRE 803(6).”5 Dr. Boulos is the
“source” of the information when such statements are packaged in a business record.
At least as to the “multiple layers of hearsay” concern, the exception includes
documents such as this.
       The record is also not inadmissible simply because it includes diagnoses and
opinions.6 In fact, D.R.E. 803(6) itself provides that a business record may include
an “opinion, or diagnosis.” Certainly, an expert report prepared in anticipation of
litigation does not fall under this exception. 7 On the face of the record at issue,


5
  U.S. v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982). See 30B Fed. Prac. & Proc. Evid. § 6866
(recounting that “[a] record that would require analysis via Federal Rule of Evidence 805 of
multiple levels of hearsay outside the business records context, will not require such analysis if
introduced under Rule 803(6), so long as each hearsay level originates from a “regular practice”
of one employee within the business relating information to another, all in the “regular course of
business.”).
6
   See Michael Graham, 30C Fed. Prac. & Proc. § 7047 at 165 (2011) (recognizing that
“[a]dmissibility is no longer in doubt [because] Rule 803(6) specifically includes both diagnoses
and opinions, in additions to acts, events, and conditions, as proper subjects of admissible
entries.”).
7
  See World Kitchen, LLC v. American Ceramic Society, 2016 WL 3568723, at *5 (7th Cir. 2017)
(holding that “records were created at the direction of counsel and not in the ordinary course of
[the company’s] business.”); see also Gerstley v. Mayer, 2015 WL 756981, at *9 n.48 (Del. Super.
Feb 11, 2015) (stating that “[g]enerally expert reports are not admissible as evidence as the report
constitutes hearsay”); see also 30B Fed. Prac. & Proc. Evid. § 6865 (stating that “[m]any courts

                                                 4
however, the Court does not conclude that the medical record is an expert report
made in anticipation of litigation. It contains diagnoses and vital signs and that it
simply includes matters referencing what the doctor explained to the patient at her
last office visit does not convert the medical record into an expert narrative report.
       Furthermore, the Court does not find that a reference in a medical record that
was transcribed on the same day as a patient’s office visit to be inadmissible simply
because it references advice given to a patient at a previous office visit. In the
Court’s judgment, a reference to advice given at the preceding visit in a record of a
follow-up visit qualifies as recording an event “at or near the time of the act or
event.”8
       Finally, Bayhealth argues that the record at issue is not relevant because it was
not presented to Bayhealth at or around January 6, 2017, the time of its alleged
refusal to provide a reasonable accommodation to Ms. Wilgus. The threshold for
relevance is not high. It requires only that the proffered evidence has a tendency to
make any fact of consequence more or less probable. 9 Here, the nature of what was
an allegedly reasonable accommodation is an issue squarely before the Court.
Though that record was not presented to Bayhealth at the time it terminated Ms.
Wilgus’s employment, if admitted into evidence, it would corroborate what Ms.
Wilgus undisputedly relayed to Bayhealth. It is thus significantly relevant to Ms.
Wilgus’s claims.
       Accordingly, the Court DEFERS its ultimate decision regarding the
admissibility of the record pending the testimony of a records custodian at trial after



read Federal Rule of Evidence 803(6)(B)’s ‘regularly conducted activity’ requirement to disqualify
records generated with an eye to litigation.”).
8
  See 34 Am. Jur. Proof of Facts 2d § 509 (1983) (stating that “at or near a time” of the transaction
does not refer to a precise time fixed, but rather that the “rule of reason” is generally followed to
determine if a recording was of sufficient temporal proximity).
9
  D.R.E. 401.

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a D.R.E. 104(a) hearing outside the presence of the jury. Given the Court’s decision
in this Order regarding the majority of the arguments raised by the parties, they are
encouraged to confer regarding whether a records custodian will be necessary. In
the absence of a such a stipulation, Ms. Wilgus must meet her burden of establishing
the requirements of the business records exception. The pretrial order is hereby
modified to include a records custodian of Delaware Neurosurgical Group, P.A. as
a trial witness for the Plaintiff.
       IT IS SO ORDERED



                                                    /s/ Jeffrey J Clark
                                                           Judge




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