United States District Court, N.D. Indiana, Fort Wayne Division
ANNE VAUGHT, as Personal Representative of the Estate of DAVID VAUGHT and individually, Plaintiff,
QUALITY CORRECTIONAL CARE, LLC, REBECCA COOK, R.N., in her individual and official capacities, KELLEY CARROLL, N.P. in her individual and official capacities, SHERIFF MARCUS E. GATTON in his official capacity, SHERIFF MARK E. HODGES in his individual and official capacities, STEVE MYERS in his individual and official capacities, SAMUEL GILLESPIE in his individual and official capacities, B. ANDERSON in his individual and official capacities, PARKVIEW HOSPITAL, INC., and SARA ZOOK, in her individual and official capacities, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter comes before the Court on a Motion to Strike [ECF No.
89] filed by Defendants Quality Correctional Care, LLC (QCC),
Rebecca Cook, R.N., and Kelley Carroll, N.P. (collectively
the QCC Defendants). The QCC Defendants filed the Motion to
Strike after Plaintiff Anne Vaught responded [ECF Nos. 79,
80, 81] to the QCC Defendants' Motion for Summary
Judgment [ECF No. 69]. The matter is now fully briefed and
ripe for review.
following is a brief summary that provides context for the
current dispute over whether the Court may consider certain
evidence for summary judgment purposes. Plaintiff Anne Vaught
brought claims under 42 U.S.C. § 1983 and under state
tort law against three sets of defendants after her husband
passed away. (See First Am. Compl., ECF No. 17.) The
three QCC Defendants are one set of defendants.
Plaintiff's husband became ill while incarcerated at the
Whitley County Jail. QCC had contracted with Whitley County
to provide medical services to inmates at the Whitley County
Jail. Rebecca Cook worked for QCC as a nurse, and Kelley
Carroll worked for QCC as a nurse practitioner. Both provided
medical services to the Plaintiff's husband while he was
Defendants moved for summary judgment, and the Plaintiff
responded. The Plaintiff included twenty-six exhibits in her
response briefing, including Exhibit 24, which was manually
filed with the Clerk and mailed to all defendants, see [ECF
No. 80]. Exhibit 24 is a DVD-R that contains the audio of
several calls between the Plaintiff and her husband, and the
QCC Defendants moved to strike Exhibit 24 on several grounds.
In its Motion to Strike, the QCC Defendants asserted that
Exhibit 24 was not properly authenticated and contains
inadmissible hearsay. The QCC Defendants have also moved to
strike certain text from the Plaintiff's Response to the
Motion for Summary Judgment, and have asked for additional
time to file an Amended Reply to support their Motion for
Summary Judgment if the Court denies the Motion to Strike.
Defendants appear to base their Motion to Strike on Federal
Rule of Civil Procedure 56. Rule 56(c) lays out the
procedures for summary judgment. The Rule states that
“[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” Fed.R.Civ.P.
56(c)(2). The QCC Defendants assert that certain text in the
Plaintiff's Memorandum in Support of Response and Exhibit
24 are not supported by admissible evidence. They ask that
the Court strike this text and Exhibit 24, presumably under
Rule 56(e)(4), which allows the Court to “issue any
other appropriate order” where “a party fails to
properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by
Rule 56(c)[.]” See Fed.R.Civ.P. 56(e). This decision is
within the sound discretion of the Court. See Bordelon v.
Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 527-528
(7th Cir. 2000).
Court will first address whether it will strike certain text
from the Plaintiff's Memorandum. The QCC Defendants argue
that the Plaintiff impermissibly provided an expert opinion
when she claimed that her husband was suffering from sepsis.
(Def. Mot. to Strike 2, ECF No. 89; see also Pl.
Mem. in Supp. 8, ECF No. 78.) The Court notes the QCC
Defendants objections. Because the Court is able to
distinguish which exhibits, affidavits, statements, and
commentary may properly be considered when deciding whether
summary judgment is appropriate, the Court declines to strike
these statements from the Plaintiff's Memorandum. The
Court will consider the QCC Defendants' objection to the
Plaintiff's qualifications, and the nature of her
testimony, in its summary judgment analysis, which will be
issued in a forthcoming Opinion and Order.
the Court turns its attention to Exhibit 24. The QCC
Defendants argue that Exhibit 24 has not been properly
authenticated and that Exhibit 24 contains inadmissible
hearsay. Consequently, the QCC Defendants also argue that the
Plaintiff's Memorandum contains improper references to
Exhibit 24. Therefore, the QCC Defendants assert that the
Court should strike Exhibit 24 and accompanying references in
the Plaintiff's Memorandum.
Court agrees that Exhibit 24 has not been properly
authenticated. Evidence must be authenticated before the
Court may consider it on summary judgment. Smith v. City
of Chi., 242 F.3d 737, 741 (7th Cir. 2007). The party
seeking to authenticate an audio recording in a civil
proceeding must do so by clear and convincing evidence.
Id. That party may do so by either showing the chain
of custody, or by establishing the accuracy and
trustworthiness of the audio recording. Id. at
741-42. Although there is no formulistic approach to
authenticating audio recordings, eyewitnesses or conversation
participants can sufficiently authenticate an audio recording
through affidavits or testimony. Id. Generally,
conversation participants can authenticate an audio recording
by testifying that they have listened to the audio recording
and by identifying the voices of the participants on an audio
recording. Id. at 742; see also United States v.
Brown, 136 F.3d 1176, 1181 (7th Cir. 1998) (superseded
by statute on other grounds as stated in United States v.
Ali, 619 F.3d 713 (7th Cir. 2010)). After the proponent
demonstrates that the audio recordings are authentic, the
burden shifts to the opponent to rebut that showing.
Smith, 242 F.3d at 742.
case, the Plaintiff argues that in her deposition she
testified that she talked on the phone with her husband while
he was at the Whitley County Jail, and that this is
sufficient to authenticate the audio recordings in Exhibit
24. The Court disagrees. The Plaintiff did not discuss these
specific tapes in her deposition, although she did allude to
various phone calls she had with her husband at various times
while he was incarcerated at Whitley County Jail. This is
insufficient to authenticate Exhibit 24, but the Court
declines to strike Exhibit 24. Instead, the Court grants the
Plaintiff the opportunity to provide additional foundation to
authenticate Exhibit 24. See Fed. R. Civ. P.
Court has noted that the QCC Defendants object to certain
statements in Exhibit 24 as inadmissible hearsay, and that
the Plaintiff contends that the statements are either
provided for non-hearsay purposes or that an exception to the
rule against hearsay applies. As such, the Court declines to
strike any text regarding Exhibit 24 from the Plaintiff's
Memorandum, and will consider the parties' ...