Social Security Determinations

In a medical malpractice litigation, should a Social Security Administration (SSA) determination of disability be admitted as evidence? In a May 2 decision, the U.S. District Court for the District of New Jersey prohibited a plaintiff's request to introduce into evidence the SSA's conclusion that the plaintiff was, at least in part, disabled as the result of the operation that was the subject of the claim. The case, Orber v. Jain, 2012 U.S. Dist. LEXIS 61332 (5/2/12), was decided by U.S. District Judge Renee Marie Bumb, who concluded that the SSA's Disability Determination was inadmissible for being not only cumulative but also more prejudicial than probative.

The Case

Plaintiff Jayne Orber underwent knee replacement surgery in June 2009. She did not recover well, and now claims that she has difficulty walking or sitting for long periods, has trouble keeping her balance, and suffers from numbness in her lower left leg. Orber testified ' and defendants did not dispute ' that she was awarded Social Security disability benefits starting from the date of her surgery. She also presented the testimony of damages expert Andrew Verzilli, who testified that the SSA had awarded Orber disability benefits starting from the date of surgery.

In addition to the above testimony, plaintiffs offered into evidence SSA's disability determination (the Disability Determination). It stated that Orber was disabled and had been since the date of her surgery, and concluded that her disability was the result of arthritis in both knees and the “residual effects of failed total left knee replacement.” In addition, the Disability Determination contained Orber's subjective complaints about her ailments. The defendants objected to the admission of the document.

In support of their position that the Disability Determination, in accordance with Federal Rule of Evidence ' 803(8), should be admitted as an exception to the hearsay exclusion rule as a public record, the plaintiffs cited to several cases in which SSA disability determinations were admitted into evidence under that section. See, e.g., Riedl v. General American Life Insurance Co., 248 F.3d 753 (8th Cir. 2001) (SSA Report admissible to support an ERISA claim for disability benefits, although SSA decision not binding on finder of fact); Webster v. Oglebay Norton Co., No. 65502, 1995 Ohio App. LEXIS 238 (Ct.App.Oh. Jan. 26, 1995) (SSA report relevant and admissible to show contradictory statements concerning cause of disability were made); Gilchrist v. Ozone Spring Water Co., 639 So.2d 489 (La.Ct.App. 1994) (disability determination made prior to incident at issue allowed as showing plaintiff's pre-incident disability).

The court, however, declined to analyze the public records exception, finding the proffered document should be excluded under Federal Rule of Evidence 403, which allows for preclusion of otherwise relevant evidence if its probative value is outweighed by the danger of a number of concerns, including unfair prejudice to any party. Specifically, Judge Bumb found the probative value of the document minimal, since the plaintiff and her damages expert had already testified to the findings in the Disability Determination; adding the document to the list of evidence would only duplicate that testimony. At the same time, she said, if the jury were handed the Disability Determination to study in the jury room, they might, “despite the questionable utility of the Disability Determination with respect to causation ' inappropriately give weight, based on the fact that the SSA is a government agency, to its conclusions that the knee replacement was a 'failure' and that Mrs. Orber's disability was, at least in part, the result of the surgery.” This would be especially unfair, since the SSA's determination of the causes of Orber's physical problems was not based on an adversarial hearing involving interested parties on opposing sides of the question of causation. And finally, Federal Rule of Evidence 701(c) prohibits lay witnesses from offering testimony on scientific subjects, such as medical causation. Since the court had before it no evidence of the scientific qualifications of the official who made the causation finding for the SSA, that person's abilities as a scientific expert could not be assessed; therefore, that person's “testimony” in the Disability Determination concerning causation should not be admitted.

Conclusion

Although it might seem that ' being a public record ' a Social Security Administration Disability Determination should be admitted into evidence without much difficulty, Orber shows that exclusion can be obtained. Where, as in Orber, there is no dispute as to the fact that a Disability Determination was made, or as to its contents, the value of admitting the document itself is arguably minimal, while its ability to prejudice one party's case is substantial. Still, it may sometimes be admitted when the reason for doing so is different from that in Orber, as in the Webster case, where a Disability Determination was admitted as impeachment evidence. Each case, as always, must be determined on its own merits.

Janice G. Inman is Editor-in-Chief of this newsletter.

In a medical malpractice litigation, should a Social Security Administration (SSA) determination of disability be admitted as evidence? In a May 2 decision, the U.S. District Court for the District of New Jersey prohibited a plaintiff's request to introduce into evidence the SSA's conclusion that the plaintiff was, at least in part, disabled as the result of the operation that was the subject of the claim. The case, Orber v. Jain, 2012 U.S. Dist. LEXIS 61332 (5/2/12), was decided by U.S. District Judge Renee Marie Bumb, who concluded that the SSA's Disability Determination was inadmissible for being not only cumulative but also more prejudicial than probative.

The Case

Plaintiff Jayne Orber underwent knee replacement surgery in June 2009. She did not recover well, and now claims that she has difficulty walking or sitting for long periods, has trouble keeping her balance, and suffers from numbness in her lower left leg. Orber testified ' and defendants did not dispute ' that she was awarded Social Security disability benefits starting from the date of her surgery. She also presented the testimony of damages expert Andrew Verzilli, who testified that the SSA had awarded Orber disability benefits starting from the date of surgery.

In addition to the above testimony, plaintiffs offered into evidence SSA's disability determination (the Disability Determination). It stated that Orber was disabled and had been since the date of her surgery, and concluded that her disability was the result of arthritis in both knees and the “residual effects of failed total left knee replacement.” In addition, the Disability Determination contained Orber's subjective complaints about her ailments. The defendants objected to the admission of the document.

In support of their position that the Disability Determination, in accordance with Federal Rule of Evidence ' 803(8), should be admitted as an exception to the hearsay exclusion rule as a public record, the plaintiffs cited to several cases in which SSA disability determinations were admitted into evidence under that section. See, e.g., Riedl v. General American Life Insurance Co. , 248 F.3d 753 (8th Cir. 2001) (SSA Report admissible to support an ERISA claim for disability benefits, although SSA decision not binding on finder of fact); Webster v. Oglebay Norton Co., No. 65502, 1995 Ohio App. LEXIS 238 (Ct.App.Oh. Jan. 26, 1995) (SSA report relevant and admissible to show contradictory statements concerning cause of disability were made); Gilchrist v. Ozone Spring Water Co. , 639 So.2d 489 (La.Ct.App. 1994) (disability determination made prior to incident at issue allowed as showing plaintiff's pre-incident disability).

The court, however, declined to analyze the public records exception, finding the proffered document should be excluded under Federal Rule of Evidence 403, which allows for preclusion of otherwise relevant evidence if its probative value is outweighed by the danger of a number of concerns, including unfair prejudice to any party. Specifically, Judge Bumb found the probative value of the document minimal, since the plaintiff and her damages expert had already testified to the findings in the Disability Determination; adding the document to the list of evidence would only duplicate that testimony. At the same time, she said, if the jury were handed the Disability Determination to study in the jury room, they might, “despite the questionable utility of the Disability Determination with respect to causation ' inappropriately give weight, based on the fact that the SSA is a government agency, to its conclusions that the knee replacement was a 'failure' and that Mrs. Orber's disability was, at least in part, the result of the surgery.” This would be especially unfair, since the SSA's determination of the causes of Orber's physical problems was not based on an adversarial hearing involving interested parties on opposing sides of the question of causation. And finally, Federal Rule of Evidence 701(c) prohibits lay witnesses from offering testimony on scientific subjects, such as medical causation. Since the court had before it no evidence of the scientific qualifications of the official who made the causation finding for the SSA, that person's abilities as a scientific expert could not be assessed; therefore, that person's “testimony” in the Disability Determination concerning causation should not be admitted.

Conclusion

Although it might seem that ' being a public record ' a Social Security Administration Disability Determination should be admitted into evidence without much difficulty, Orber shows that exclusion can be obtained. Where, as in Orber, there is no dispute as to the fact that a Disability Determination was made, or as to its contents, the value of admitting the document itself is arguably minimal, while its ability to prejudice one party's case is substantial. Still, it may sometimes be admitted when the reason for doing so is different from that in Orber, as in the Webster case, where a Disability Determination was admitted as impeachment evidence. Each case, as always, must be determined on its own merits.

Janice G. Inman is Editor-in-Chief of this newsletter.