EvidenceProf Blog

Hearing Loss: U.S. Court Of Appeals For Veterans Claims Uses Rule 803(7) To Prove Patient's Lack Of Service-Related Tinnitus

Federal Rule of Evidence 803(7) provides an exception to the rule against hearsay for 

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

And, as the recent opinion of the United States Court of Appeals for Veterans Claims in Perkins v. Shinseki, 2011 WL 182653 (Vet.App. 2011), makes clear, the lack of evidence of symptoms in contemporaneous medical records can be admitted under Rule 803(7) to prove the nonoccurrence of such a condition.

In Perkins, Millard Perkins

argue[d] that the Board [of Veterans' Appeals] erred in relying on [a] March 2006 VA examination to deny service connection for tinnitus....In support of this argument, [Perkins] argue[d] that the opinion was inadequate because the opinion concluded that neither [Perkins] hearing loss nor his tinnitus was related to service, but the Board nonetheless granted service connection for his hearing loss....[Perkins] state[d] that "[t]he report failed to discuss the potential relationship between the [appellant]'s hearing loss and as a result, could not possibly provide the Board with a sufficient basis to deny service connection for [his] tinnitus."

In explaining how the Board properly granted Perkins service connection for his hearing loss but denied him service connection for tinnitus, the United States Court of Appeals for Veterans Claims concluded that

The record lack[ed] contemporaneous evidence of tinnitus relative to service, it lack[ed] medical records or complaints relating to tinnitus for the 50 years following service (despite the fact that it contain[ed] complaints of hearing loss), and the appellant did not complain of tinnitus for nearly 50 years after separation from service....However, the Board found the appellant's testimony not credible because contemporaneous records failed to record symptoms of tinnitus even though they discussed his hearing problems. See Fed.R.Evid. 803(7).... 

-CM

AALS Poster Project: Elizabeth Burleson's Energy Innovation: International Law and the UN

Elizabeth Burleson presented the poster Energy Innovation: International Law and the UN (Download Burleson Poster):

Professor Burleson is a professor at the University of South Dakota School of Law, where she has taught since 2007. She teaches classes such as Public International Law, Energy Law, United Nations Law, International Environmental Law, International Law and China, Property Law, Water Law, and Environmental Law. She has published articles such as:

-Innovation Cooperation: Energy Biosciences and Law, (forthcoming University of Illinois Law Review);

-China in Context: Energy, Water, and Climate Cooperation, 56 Wm. Mitchell L. Rev. 950 (2010); and

-International Human Rights Law and Co-Parent Adoption, (forthcoming, Loyola Law Review)

She has also written reports for the United Nations, delivered presentations at United Nations conferences, and directed and produced films including:

(1) “Copenhagen Climate Change Consensus Building,” a documentary film on a cross-section of perspectives at the Copenhagen Conference; (2) "Legal Equality for Same Gender Couples" explaining the rights and responsibilities of civil marriage; (3) “Be the Change that You Wish to See” featuring grassroots environmental initiatives around the world; and (4) “Making Connections” a Spanish documentary on NAFTA, California's 1994 Proposition 187, and the conflict in Chiapas.

-CM

AALS Poster Project: Emily Zimmerman's Do Law Students Want Multiple Graded and Ungraded Assignments? Results from an Empirical Research Project

Emily Zimmerman presented the poster Do Law Students Want Multiple Graded and Ungraded Assignments? Results from an Empirical Research Project ( Download Zimmerman Poster):

Professor Zimmerman is a professor at the Earle Mack School of Law at Drexel University. She conducts empirical research to assess strengths and weaknesses in legal pedagogy and methods for promoting student enthusiasm. She has given presentations at numerous regional, national and international conferences, including a seminar on teaching legal methods in Pidgirtsi, Ukraine for the American Bar Association Rule of Law Initiative, a conference on the pedagogy of legal writing in Nairobi, Kenya and a conference on global legal skills in Monterrey, Mexico.

Her publications include:

-An Interdisciplinary Framework for Understanding and Cultivating Student Enthusiasm, 58 DePaul L. Rev. 851 (2009);

-What Keeps Me Going? A Great Job at Home and Abroad, 18 Second Draft 9 (June 2004); and

-Toto, I Don't Think We're in Practice Anymore: Making the Transition from Editing as a Practitioner to Giving Feedback as a Legal Writing Professor, 12 Perspectives 2 (Winter 2004).

The information in Professor Zimmerman's poster is included in her forthcoming article, What Do Law Students Want?: The Missing Piece of the Assessment Puzzle (Rutgers Law Journal). You can download an earlier version of the article from SSRN (SSRN download) or a newer version here: (Download What Do Law Students Want?).

Professor Zimmerman gives the following description of her poster:

I will be presenting some of the results of my empirical research that investigates, inter alia, law students’ assessment preferences.  I have attached my poster as a separate file.

Starting with the 2007-2008 academic year, I have been administering a survey to first-year students at a law school at the beginning of the year (at the end of the first day of orientation) and at the end of the year (during the last week of class).  The beginning-of- the-year survey asks students to indicate whether they agree with the statements, “I would like to be assigned multiple graded assignments throughout a first-year law school course,” and “I would like to be assigned multiple un-graded assignments throughout a first-year law school course.”  The end-of-the-year survey asks students to indicate whether they agree with the statements, “I would like to be assigned multiple graded assignments throughout a law school course,” and “I would like to be assigned multiple un-graded assignments throughout a law school course.”

My poster presents two years of first-year students’ responses to these questions (the first-year class that entered the law school in 2007 and the first-year class that entered the law school in 2008).

Each graph on the poster shows the distribution of students’ responses (by percentage) to each survey question in each survey year, at both the beginning of the year and the end of the year.  The graph on the left shows the distribution of students’ responses to the survey questions about wanting multiple graded assignments.  The graph on the right shows the distribution of students’ responses to the survey questions about wanting multiple ungraded assignments.  The beginning-of-the-year responses and the end-of-the-year responses for each survey year are presented side-by-side, which enables comparisons between the distribution of responses at the beginning of the year and at the end of the year.  Also, the results for each survey year are presented separately on each graph, which enables trends across both survey years to be observed. 

There is a number on top of each bar on the graphs, which states the percentage of respondents represented by that bar.  These numbers are clear on a poster-sized document, although the numbers are not clear when the poster is printed on 8 ½-by-11 inch paper.  The graphs also indicate the number of respondents who responded to each question (the numbers in parentheses after “Entrance” and “Exit” below the bars of the graphs). 

The data indicate that, in both survey years, at both the beginning of the year and the end of the year, a majority of first-year students respond that they want multiple graded assignments.  However, in both survey years, the data also indicate that a lower percentage of students at the end of the year want multiple graded assignments.

In addition, the data also indicate that, in both survey years, at the end of the first year of law school, a majority of students indicate disagreement with wanting multiple ungraded assignments.

These findings raise a number of questions about law school pedagogy.

First, these findings raise the question of whether at least some law school courses should use multiple graded assignments because, at both the beginning and end of the year, a majority of students indicate that they want multiple graded assignments.

Second, these findings raise the question of whether workload concerns underlie both students’ apparent resistance to multiple ungraded assignments and the lower percentage of students who want multiple graded assignments at the end of the first year of law school.  Students may perceive that more assessment means more work.  As a result, students may not be receptive to more assessment events.

The data from my research project suggest that any efforts to incorporate more assessment into law school pedagogy should consider the impact on students’ workload.  Some of the value of more frequent assessment may be lost if students are thoroughly overwhelmed.  There may need to be more careful coordination among professors, particularly professors who teach first-year law students, to ensure that students’ workload is manageable.  In addition, the data from my research project suggest that law professors should consider ways to integrate more assessment into the classroom, as an alternative to adding an overwhelming number of out-of-class assignments into the curriculum.

Thus, this poster provides data regarding law students’ perspectives regarding multiple graded and ungraded assignments.  This poster also demonstrates the value of learning more about our students’ perspectives and how our students’ perspectives might inform the design of legal education.

-CM

AALS Poster Project: Judith FIscher's Got Issues? An Empirical Study about Framing Them

Judith Fischer presented the poster Got Issues? An Empirical Study about Framing Them (Download Fischer Poster):

Professor Fischer is a professor at the University of Lousiville Louis D. Brandeis School of Law, where she teaches Basic Legal Skills and Women and the Law. Professor Fischer serves on the editorial boards of Legal Writing: The Journal of the Legal Writing Institute and Kentucky's Bench and Bar Journal. She also has presented programs on legal writing at national conferences and has taught continuing legal education courses in Kentucky, California, and Ohio, and Oregon. 

Her publications include:

-Framing Gender: Federal Appellate Judges' Choices About Gender-Neutral Language, 43 U.S.F. L. Rev. 473 (2009);

-Why George Orwell's Ideas About Language Still Matter for Lawyers, 68 Mont. L. Rev. 129 (2007); and 

-God and Caesar in the Twenty-First Century: What Recent Cases Say About Church-State Relations in England and the United States, 18 Fla. J. Int'l L. 485 (2006)

According to Professor Fischer, the poster is the result of empirical research she did on laywers' issue statements.

-CM

AALS Poster Project: Gwynne Skinner's Human Rights Litigation: Hamad v. Gates, et al

Gwynne Skinner presented the poster, Human Rights Litigation: Hamad v. Gates, et al (Download Skinner Poster):

Professor Skinner is an Assistant Professor of Clinical Law at the Willamette University College of Law, where she heads the International Human Rights Clinic.

Her publications include

-When Customary International Law Violations 'Arise Under the Laws of the United States,' Brooklyn Journal of International Law (forthcoming);

-Customary International Law, Federal Common Law, and Federal Court Jurisdiction, 44 VAL. U. L. REV. 825 (2010); and

-Bringing International Law to Bear on the Detention of Refugees and Conditions of Detention in the United States, 16 WILLAMETTE J. INT'L. L. & DISP. RESOL. 270 (2009).

According to Professor Skinner, the poster

discusses a case my clinic has filed and is litigating on behalf of one of the former Gbay detainees.  It is the only such case outside of the D.C. courts, which have dismissed similar cases. We recently won a motion preventing DOJ from transferring the case to D.C., which is good. 

-CM

AALS Poster Project: Sabrina DeFabritiis' Barking Up The Wrong Tree: Companion Animals, Emotional Damages And The Judiciary's Failure To Keep Pace

Sabrina DeFabritiis presented the poster Barking Up The Wrong Tree: Companion Animals, Emotional Damages And The Judiciary's Failure To Keep Pace (Download DeFabritiis Poster):

 

Professor DeFabritiis is a professor at the Suffolk University Law School, where she teaches Legal Practice Skills. He publications include:

-Clarity, Organization: Watchwords for Client Correspondence, Massachusetts Lawyers Weekly (2009);

-Can You Hear Me Now? Using Voice Comments to Provide Feedback on Students' Memoranda, 2 The Second Draft 7 (2009); and

-PRODUCTS LIABILITY DEFENSE: A STATE-BY-STATE COMPENDIUM (Defense Research Institute, 2004) (Co-author of the Massachusetts section for the 2004 and 2007 editions).

Professor DeFabritiis gives the following description of the poster:

The poster is based on an article that I am in the process of completing.  Below please find a brief synopsis of my article and what I hope to present. 

An increasing number of American households regard their companion animals as being as much a part of their family as their human family members.  Companion animals have not always held this status.   Instead the role of companion animals has evolved from property, whose function was to derive economic benefit, to family members, who share a unique emotional bond with their human companions.  This article argues that case law has failed to keep pace with this societal change.  Despite judicial recognition that companion animals have become family member, decisions continue to provide inconsistent precedent of the non-economic damages available to the human companion upon the death of a companion animal.  

The article discusses the evolution of companion animals from workers to family members.  It then discusses the inconsistent course judicial opinions have taken on the recovery of emotional damages upon the negligent or intentional death of a companion animal.  The article describes, how for a time, the award of damages resulting from the death of a companion animal appeared to be consistent with the rising familial status of companion animals. However, as the societal role of companion animals continued to evolve, inexplicably, the judiciary stopped keeping pace. Judicial opinions began to deny the recovery of emotional damages ruling that there existed no precedent for the recovery of emotional damages for loss of property.  More recent decisions indicate that the judiciary would like for the legislature to step in and provide an avenue by which to grant non-economic damages.  

The article concludes by discussing existing state statutes that allow for the recovery of emotional damages for the death of a companion animal.  The article makes recommendations based on the existing statues on how other states should proceed in enacting legislation. The article suggests that codification by state legislatures will remedy inconsistent judicial precedent and allow human companions to recover for their emotional suffering upon the loss of their four legged family members.  

-CM

AALS Poster Project: Victoria Sutton's Biosecurity Codes and Ethics, BWC Participants 2009

Victoria Sutton presented the poster Survey: Biosecurity Codes and Ethics, BWC Participants 2009 (Download Sutton Poster):

Professor Sutton is a professor and the director of the Center for Biodefense, Law & Public Policy at the Texas Tech University School of Law, where she teaches Environmental Law; Law, Science Policy and Scientific Evidence; Native American Law; Law and Biotechnology; Law and Bioterrorism; Constitutional Law; and Law, Science and Environment. The Center for Biodefense, Law & Public Policy is the only center at a law school in the U.S. to focus solely on issues of law and biodefense, biosecurity and bioterrorism. Professor Sutton also established the Law and Science Certificate Program with unanimous support of the faculty, and directs the JD/MS Program in Environmental Toxicology, Biotechnology and Plant and Soil Sciences.

Professor Sutton's publications include:

-Law and Biotechnology: Cases and Materials;

-The Culture of Science and the Regulation and Litigation of Biodefense Research, 6 U. St. Thomas L.J. 523 (2009); and

-Wind and Wisdom, 1 Envt'l & Energy L. & Pol'y J. 345 (spring 2007).

According to Professor Sutton,

The poster shows how social sciences research can inform better design of legal frameworks by collecting empirical data, analyzing it and using it to make efficacious laws and regulations.  The examples here are an international treaty and a U.S. federal regulatory program.  The link on the poster leads to the announcement on the White House website where the President issued an Executive Order which cited my research in support of the E.O. to review the regulatory program.

-CM