Trying A Case From First Base to Home Plate Dallas Bar Association Tort & Insurance Practice Section March 9, 2007 D

1. Spring Training 2007 Trying A Case From First Base to Home Plate Dallas Bar AssociationTort & Insurance Practice SectionMarch 9, 2007Dallas, Texas

2. Documentary Evidence Laura D. Schmidt DOWNS STANFORD 2001 Bryan Street, Suite 4000 Dallas, Texas 75201 214/748-7900 lschmidt@downsstanford.com

3. ADMISSIBILITY Authentication Dealing with hearsay

4. AUTHENTICATION • Some documents are “self-authenticated” and do not require testimony • If not, must prove-up by additional means

5. SELF-AUTHENTICATING (TRE 902) • Certified Copies of Public Docs Ex: Police report, court records, death certificate, criminal records* * Be sure to get fingerprint sheet and docket sheet

6. SELF-AUTHENTICATING • Official Publications (issued by a public authority) EX: DPS driver’s manual, IRS instructions

7. SELF-AUTHENTICATING • Newspapers/periodicals EX: Stories on fire scene investigation, details of auto accident, weather reports

8. SELF-AUTHENTICATING • Trade inscriptions & “the like” EX: Labels, warning stickers, hang-tags

9. SELF-AUTHENTICATING • Business records accompanied by affidavit EX: Repair work, inventory, sales data, board minutes FORM: TRE 902 (10)(b)

10. SELF-AUTHENTICATING • Documents produced in discovery, when offered against the producing party (Tex. R. Civ. Proc. 193.7) !! Must give the party 10 day’s notice of intent to use to allow the assertion of objection!!

11. CAUSE NO. 35159CHARLES T. MERRELL, SR., AS § IN THE DISTRICT COURTWRONGFUL DEATH BENEFICIARY §OF CHARLES THOMAS MERRELL, II §DECEASED, ET AL. §v. § FANNIN COUNTY, TEXAS §WAL-MART STORES, INC. and §WILMA PEARCE § 336TH JUDICIAL DISTRICTNOTICE OF SELF-AUTHENTICATIONPURSUANT TO RULE 193.7 OF THE TEXAS RULES OF CIVIL PROCEDURETO: DEFENDANT/THIRD-PARTY PLAINTIFF, WAL-MART STORES, INC., by and through its attorneys of record, Randall G. Walters, Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck, llp, 4700 Renaissance Tower, 1201 Elm Street, Dallas, TX 75270-2196.Please take notice that the documents Wal-Mart Stores, Inc. produced in response to all parties’ Request for Production of Documents are authenticated pursuant to Rule 193.7 of the Texas Rules of Civil Procedure and will be used by The Holmes Group, Inc. at any trial or hearing. Respectfully submitted, DOWNS & STANFORD, P.C. BY: ________________________________ Laura D. Schmidt State Bar No. 22142300 2001 Bryan Street, Suite 4000 Dallas, Texas 75201 (214) 748-7900 telephone (214) 748-4530 facsimile COUNSEL FOR DEFENDANT THE HOLMES GROUP, INC.

12. ALL OTHER DOCUMENTS(TRE 901) • Testimony needed to authenticate EX: Photos, handwriting (especially signatures), voice recordings

13. EXCEPTION TO HEARSAY

14. NOT HEARSAY (TRE 801(e)) • Prior courtroom testimony • Admission of party opponent • Deposition testimony

15. EXCEPTION TO HEARSAY (TRE 803, 804) • Present sense impression • Statement related to diagnosis • Regularly conducted activity • Public records

16. EXCEPTION TO HEARSAY, Con’t • Vital statistics • Religious organizations • Marriage, baptism, etc. • Learned treatises

17. EXCEPTION TO HEARSAY, Con’t • Interest in property • Prior convictions • Statement against interest

18. MEDICAL RECORDS • Records vs. billing • Records—use 902(10)(b) • Billing-use 18.001 Tex. Civ. Prac. & Rem. Code

19. MEDICAL RECORDS • When using 18.001 affidavits, MUST file with the court at least 30 days before use • Opposing party has right to controvert, within 14 days

20. MEDICAL RECORDS Practice tips: p: *use 18.001 affidavit, get records & b bills early * watch for DWQ’s from D, send cross-questions

21. NOTICE OF FILING OF AFFIDAVITS UNDER • TEXAS CIVIL PRACTICE AND REMEDIES CODE §18.001 • TO THE HONORABLE JUDGE OF SAID COURT: • Comes now Thompson & Knight Group Insurance Plan, Intervenor herein, and files its Notice of Filing of Affidavits Under Civil Practice and Remedies Code §18.001 and would show unto the court as follows: • Notice is hereby given to all parties that Intervenor has filed with the court the following Affidavits under Civil Practice and Remedies Code §18.001: • . Billing Affidavit for Praxair Healthcare, pertaining to Amanda Marks Hukill; • . Billing Affidavit for Dr. Sami E. Constantine, pertaining to Amanda Marks Hukill; • . Billing Affidavit for Digestive Health Associates of Texas, pertaining to Amanda Marks Hukill; • . Billing Affidavit for Dr. Paul T. Freudigman, Jr., pertaining to Amanda Marks Hukill; • . Billing Affidavit for American Radiology Consultants, pertaining to Amanda Marks Hukill; • . Billing Affidavit for Urgent Surgery Associates, pertaining to Amanda Marks Hukill; • . Billing Affidavit for UT Southwestern Medical Center, pertaining to Amanda Marks Hukill; • . Billing Affidavit for Texas Neurosurgery, P.A., pertaining to Amanda Marks Hukill ; • . Billing Affidavit for Dallas Fire Department, pertaining to Amanda Marks Hukill; • . Billing Affidavit for Baylor University Medical Center, pertaining to Amanda Marks Hukill; • . • The records attached to said Affidavits are not being filed with the court. If any party desires copies of the records, then they shall be made available for inspection and copying. The expense of copying shall be born by the party, parties or persons who desire copies and not by Intervenor. • WHEREFORE, PREMISES CONSIDERED, the court and all parties are requested to take notice of the foregoing filing of affidavits. • Respectfully submitted, • DOWNS & STANFORD, P.C. • By: _ ___________________________________ • Laura D. Schmidt • Texas Bar No. 22142300 • 2001 Bryan Street, Suite 4000 • Dallas, Texas 75201 • Telephone: (214) 748-7900 • Facsimile: (214) 748-4530 • ATTORNEYS FOR INTERVENOR

22. MEDICAL RECORDS Practice tips: D: *Use records service for DWQ’s * Get records admissible * Get billing inadmissible w w/affidavit

23. MEDICAL BILLS “Paid” v. “Incurred” Practice Tips: p: * Cross-questions in DWQ * Add to 18.001 affidavit o or send DWQ on this I issue alone

25. MEDICAL BILLS “Paid” v. “Incurred” D: Send DWQ on bills

26. MEDICAL EXPENSES - DWQ (Defendant) 1. Did you receive any payment for any charges made by your business? If so, who made these payments? 2. What was the total amount of payments you received for the charges made by your business? 3. Was Plaintiff a Medicaid patient? 4. Did you agree to accept Medicaid for payment of services and supplies furnished to Plaintiff? 5. Isn’t it true that when you agreed to accept Medicaid, you are required by law to accept the Medicaid fee schedule? 6. When you agree to accept Medicaid on a patient such as Plaintiff, isn’t it true that you are prohibited from seeking any additional reimbursement from the patient or his/her family?

27. HEARSAY ISSUES-MEDICAL RECORDS • File contains records from other providers • Bills contain reference to collateral source

28. POLICE REPORTS—HEARSAY ISSUES • Opinion on cause of accident • Witness statements

29. E-MAIL • Authenticate • If exchanged, either party can testify • If 1-way, get affidavit of service provider

30. E-MAIL • Deal with hearsay • Statement against interest • Party admission • Present sense impression

31. Admission Walk-Through Photo • Have marked as exhibit • Show to witness, have identify • Ask witness when taken • Ask if it truly & accurately depicts ____ at a certain point in time • Show opposing counsel • “p offers Exhibit 1 into evidence”

32. Objections—Photos • Blurry, dark, indistinct • Not properly identified by witness • Prejudicial (graphic)

33. Admission Walk-Through Business Records (If affidavit or DWQ): • Have marked as exhibit • “D offers Exhibit 2 into evidence, which is the records of XYZ, authenticated by affidavit/DWQ”

34. Business Records, Con’t. • If no affidavit/DWQ: • Have marked as exhibit • Show records to witness • Ask witness to identify • Walk through 902(10)(e) • Show documents to opposing counsel • “p offers the business records of ABC as Exhibit 3.”

35. OBJECTIONS TO BUSINESS RECORDS • Hearsay within hearsay • Contains information subject to the motion in limine • Failure to establish proper predicate