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Melissa Jenks, Individually and As G/N/F of Roderick Jenks v. New Hampshire Motor Speedway

January 31, 2012

MELISSA JENKS, INDIVIDUALLY AND AS G/N/F OF RODERICK JENKS
v.
NEW HAMPSHIRE MOTOR SPEEDWAY, BREANN THOMPSON, AND TEXTRON, INC.
v.
A.B.L, INC.



The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 027

ORDER

Melissa Jenks, as the guardian and next friend of her husband, Roderick Jenks, and on her own behalf, sued New Hampshire Motor Speedway, Breann Thompson, and Textron, Inc., alleging negligence claims against Thompson and the Speedway and product liability claims against Textron. Textron brought cross claims against the Speedway and Thompson for contribution and indemnification. The Speedway and Thompson brought cross claims against Textron for contribution and indemnification and third-party claims against Textron Financial Corporation and A.B.L., Inc.*fn1 Textron moves to preclude the use of National Electronic Injury Surveillance System ("NEISS") reports. Jenks, the Speedway, and Thompson object to Textron's motion.

Background

Roderick Jenks was injured while working at the New Hampshire Motor Speedway on July 16, 2006. The accident occurred when Jenks and a fellow worker rode in a golf car driven by Breann Thompson, a Speedway employee. Jenks rode on the back of the golf car in an area for carrying golf bags. When Thompson swerved, Jenks fell off the car, hit his head, and was seriously injured. The golf car driven by Thompson was an E-Z-GO model that was manufactured by Textron, Inc.

In support of her claim against Textron, Jenks retained Dr. Lara B. McKenzie as an expert witness. Dr. McKenzie has a doctoral degree in Public Health Policy and Management from Johns Hopkins University. She works at the Nationwide Children's Hospital Center for Injury Research and Policy in Ohio. Dr. McKenzie was an author of a peer-reviewed article, published in 2008, that is titled "Golf Car Related Injuries in the U.S.," and she reviewed data from the NEISS during her research for the article.

The Speedway and Thompson retained Dr. Gerald McGwin, Jr. as an expert witness in the field of injury epidemiology. As part of his work on this case, Dr. McGwin was asked to review the NEISS database to determine whether there were reported injuries between 1991 and 2009 that were associated with falling off the back of golf cars.

NEISS is a database that is compiled and maintained by the Consumer Product Safety Commission. The information comes from approximately 100 hospitals that maintain twenty-four hour emergency rooms. The reporting hospitals are selected based on geographic location and the demographics of their service areas to reflect the population of the United States as a whole.

Information is transmitted to NEISS by "coders" who review emergency room records. The coders provide the patient's age, gender, race, injury diagnosis, and body part injured and also indicate the product involved in the injury and state the treatment the patient received. In addition, the coders write a brief summary of the incident as part of the report to NEISS. Golf cars have a specific product code in the NEISS database. Each reported incident is assigned statistical weight that is used to estimate the magnitude of a particular problem on a nationwide basis.

In preparing reports for this case, Dr. McKenzie reviewed NEISS data on golf car injuries from 1990 through 2006. Dr. McGwin reviewed data from 1991 to 2009. After reviewing the NEISS database, Dr. McKenzie found that golf car related injuries had increased significantly since 1990 and noted that the database under reported the actual number of golf car related injuries because fatalities that did not involve emergency room visits were not reported. Dr. McKenzie found that the weighted data showed 1,697 emergency room visits due to falls from the back of golf cars. Dr. McGwin found a weighted number of 1,869 injuries associated with falls from the back of golf cars between 1991 and 2009.

Discussion

Textron contends that the NEISS data about golf car injuries is inadmissible hearsay and unreliable as the basis for expert opinion. Textron also contends that the NEISS data and the opinions based on it are irrelevant and unfairly prejudicial. Jenks, Thompson, and the Speedway object, arguing that the NEISS data is not hearsay and that the data and the opinions based on it are reliable, relevant, and admissible.

A. Hearsay

Textron contends that the NEISS data about golf car injuries is inadmissible hearsay because the database is a compilation of out-of-court statements offered to prove the truth of the matter asserted. Specifically, Textron asserts that the database is derived from a patient's "self-serving account of an accident to a doctor or nurse" or the report of someone who accompanied the patient to the emergency room, that the report is summarized by a medical provider into a medical record, and that the medical record is then paraphrased by a coder into the NEISS database. Jenks contends that the NEISS ...


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