Excluding SSA Disability Determination in Tort Litigation
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Excluding SSA Disability Determination in Tort Litigation
Recently, the following was posted in “Linked In” by Robert Hanlon:
SSA’s Determination of Disability Is Not Worth Its Weight In Prejudice”
Robert’s victory led me to thinking about other cases in which we have attempted to exclude from a liability/tort case any information of disability determination by the Social Security Administration.
But first, let’s see how Robert’s case was decided.
In a medical malpractice case arising out of allegedly negligent knee replacement surgery, the plaintiff offered into evidence the Social Security Administration’s (SSA) Determination of Disability. Orber v. Jain, 10-cv-1674 (DNJ Camden). Judge Renee Marie Bumb, United States District Court for the District of New Jersey, found the determination to be inadmissible under Rule 403 because it is “substantially more prejudicial than probative.”
The court cited a number of reasons for its decision, which should be of interest to similarly situated defendants.
First, the court found the SSA’s conclusion as to causation to be unreliable both because the SSA’s interest is in determining the presence of a disability as opposed to its cause, and because the SSA’s process lacks “a meaningful adversarial” component, which is particularly troubling when, as here, the plaintiff had already filed suit and may have had litigation in mind when he went through the process. We make these same arguments in our motions in limine (see below).
Second, the court noted that there is “no basis to assess the qualifications of the Administrative Law Judge to render an opinion as to causation and thereby assess the opinion’s worth.” Third, the court acknowledged the significant risk of prejudice presented by the fact that a jury may give undue weight to a government report.
And finally, the court found that the probative value of the determination was minimal because the evidence it contained was cumulative of other evidence presented at trial.
The guidance offered by this opinion will certainly be of use to any defendant in New Jersey that faces a similar attempt by a plaintiff to short-circuit proof of causation by relying on an SSA determination of disability.
The following is additional arguments that may be helpful in excluding the evidence of the SSA’s determination of disability no matter what jurisdiction you are in. Let me know if you find it helpful.
Since they are out of court statements, the SSA records, factual findings, determinations, and judgments are “hearsay.” See La. Code Evid. art 801(C); Green v. Connor, 644 So.2d 618 (La. 1994). Therefore, such statements are inadmissible as evidence unless otherwise provided in the Louisiana Code of Evidence. See La. Code Evid. art. 802.
The Louisiana Supreme Court has already held, in Green v. Connor, 644 So.2d 618 (La. 1994), that SSA records, factual findings, and judgments are inadmissible hearsay. In Green a plaintiff who was injured in a motor vehicle accident brought an action against his UM carrier, State Farm. The plaintiff also filed a claim for social security benefits. After State Farm requested and received the records of the Social Security proceedings, the plaintiff filed a motion in limine to exclude the records from evidence. The defense argued that the records were admissible under the “business records” hearsay exception of La. Code Evid. art. 803(6) and the “records of a public agency” hearsay exception at La. Code Evid. art. 803(8)(a)(iii).
Art. 803(8)(a)(iii) of the Louisiana Code of Evidence excepts from the hearsay rule records of a public agency setting forth “[f]actual findings resulting from an investigation made pursuant to authority granted by law.”
However, La. Code Evid. art. 803(8)(b)(iv) excludes “[f]actual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based” from the “records of a public agency” hearsay exception. The Supreme Court in Green held that the plaintiff’s SSA records did not fall within the “records of a public agency” hearsay exception. The Court reasoned:
[While factual findings of general investigations are admissible, those of particular incidents are not admissible as public records. The social security proceedings involved the same incident as the present case, and all factual findings which resulted are therefore inadmissible under La.Code Evid. art. 803(8)(a).
644 So.2d at 618.
Although Green’s holding is limited to the “business records” and “records of a public agency” exceptions, there is no other exception or exclusion from the hearsay rule that would permit Allen’s SSA records to be admitted or permit witnesses to reference them in their testimony.
In the Fourth Circuit opinion of Gilchrist v. Ozone Spring Water Co., 639 So.2d 489 (La. App. 4th Cir. 1994), the court permitted Social Security records to be introduced as evidence of a plaintiff’s prior disability under the “then existing physical or mental condition” exception to the hearsay rule. However, Gilchrist should be limited to its facts as outlined below. Furthermore, subsequent criticism of its holding suggests that it probably would have been reversed, had the case been appealed to the Supreme Court.
the plaintiff had been on social security disability prior to the accident, so causation was a critical issue in the case. At the conclusion of the bench trial, the trial judge chose not to enter a judgment until he had the chance to review the plaintiff’s medical and Social Security records. The Social Security records contained information regarding the plaintiff’s physical condition prior to the accident. When the judge ruled that the plaintiff was comparatively at fault, the plaintiff appealed. One of the plaintiff’s contentions was that his Social Security records were improperly admitted as evidence.
The Fourth Circuit ruled that the SSA records were admissible under the “then existing physical or mental condition” exception to the hearsay rule.
The authors of the Handbook on Louisiana Evidence Law, 2005, have criticized the Gilchrist holding. They correctly point out that La. Code Evid. art. 803(3) excepts from hearsay only evidence of a declarant’s then existing physical or mental condition that is located in admissible evidence. They write:
Out of court statements by third persons, even a judge, as to what the declarant said about this state of mind, physical condition, etc., would be subject to a valid hearsay objection unless the requirements of Article 805 relative to double hearsay are met. In Gilchrist…., it was held that statements by a Social Security administrative law judge (made several years previously), as to what plaintiff and his wife said about plaintiff’s then existing physical condition qualify under this exception. It seems to these Authors that the court was in error on this point. Pugh, Force, Rault, & Triche, Handbook on Louisiana Evidence Law, 2005 ed., pp. 575-56.
B. Social Security Records are Unfairly Prejudicial
Not only are the Plaintiff’s SSA records inadmissible under the hearsay rules, they must also be excluded because they are prejudicial pursuant to La. Code Evid. art 403. Any probative value of the SSA records is substantially outweighed by the profound risk of causing unfair prejudice, confusion of the issues, and misleading the jury.
Within the course of this litigation, the Plaintiff will ask the jury to find, by a preponderance of the evidence, that the Defendants were negligent and that such negligence caused the Plaintiff to sustain a disability which caused him to lose wages and future earnings. As such, the jury will be called upon to evaluate the testimony of witnesses and competing experts to determine if Mr. Allen suffered a disability and loss of earning capacity. If the jury were to learn that he had already been determined “disabled” by the SSA, then it may be inclined to simply adopt the holding of the SSA rather than to appropriately evaluate the evidence.
The danger in the above scenario is that the SSA does not apply the same standards to determine “disability” as does a civil court in a personal injury case. The SSA Regulations define “disability” as “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §404.1505(a) and 20 C.F.R. §416.905(a).
The Regulations require the Social Security Administration to consider the combined effect of all a person’s impairments, without regard to whether any particular impairment, if considered separately, would be of sufficient severity to qualify alone for benefits. See id. at §404.1523 and §416.923. Thus, the SSA’s “disability” determination does not consider causation, but rather the totality of the person’s condition. If a court permits the Plaintiff to introduce the SSA’s records, reports, findings of fact, determinations, and judgments, then there will be a profound risk that the jury will substitute the factual findings of the SSA for its own factual findings, without adequately considering the testimony of the witnesses and the issues regarding causation.
In addition to misleading the jury, the SSA findings are prejudicial because federal law significantly impedes the Defendants from conducting discovery regarding the basis of the SSA determination. In particular, the “Touhy Regulations” of the Social Security Administration, located at 20 C.F.R. §§403.120 – 403.150, give the Social Security Administration complete control over the extent to which it will permit discovery and trial testimony of its employees and the scope of the testimony permitted. For purposes of the “Touhy Regulations” of the SSA, an employee includes all consultants hired by the SSA, including all medical and vocational experts. 20 C.F.R. §§403.110. Thus, federal law hinders the ability of the Defendants to cross-examine the SSA consultants who contributed to its findings or to present the jury all of the information underlying the findings.
Next week, I will discuss arguments to prevent the medical doctor in the SSA Determination from testifying, as well as the treating physicians from giving opinions about disability.
In the meantime, let me know if these blogs are helping you the defense of the trucking industry or in commercial interests. We need to work together and help each other do the best job we can.
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