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McCurdy v. Echostar Communications Corp.

February 28, 2006

JANIE L. MCCURDY, PLAINTIFF,
v.
ECHOSTAR COMMUNICATIONS CORPORATION, A/K/A ECHOSTAR SATELLITE CORPORATION, A/K/A ECHOSPHERE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION and ORDER OF COURT

The factual and procedural details of this case are well known to the parties, and I need not repeat them in detail here. In short, Plaintiff, Janie McCurdy ("Plaintiff"), initiated this action against her former employer, Defendant Echostar Communications Corporation ("Defendant" or "Echostar"), alleging discriminatory treatment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. ("PHRA"), as well as conduct in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA") and the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq.("ERISA").*fn1

Pending is Plaintiff's Second Request for Mandatory Judicial Notice Under Fed. R. Evid. 201(d). (Docket No. 85). Defendant opposes Plaintiff's Request. (Docket No. 106). The Request is now ripe for review. After careful consideration, Plaintiff's Request is denied.

Federal Rule of Evidence 201 governs judicial notice. Rule 201 provides as follows:

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary. A court may take judicial notice, whether requested or not.

(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Fed. R. Evid. 201. The Advisory Committee Notes for Rule 201 state that "[w]ith respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy," and that "[a] high degree of indisputability is an essential prerequisite." "Because the effect of judicial notice is to deprive a party of the opportunity to use rebuttal evidence, cross-examination, and argument to attack contrary evidence, caution must be used in determining that a fact is beyond controversy under Rule 201(b)." Wright v. Brooke Group Ltd., 114 F. Supp. 2d 797, 816 (N.D. Iowa 2000).

In her current Request, Plaintiff asks me to take mandatory judicial notice of two categories of "facts" regarding breast cancer.*fn2 The first category relates to Plaintiff's own breast cancer. Specifically, Plaintiff asks me to judicially notice that she "suffered from metastatic breast cancer at the time Defendant terminated her employment on or about October 4, 2002." Pl.'s Request ¶ 1. She follows this request with a litany of alleged facts regarding her cancer diagnosis and medical treatment. Id. first ¶ 2.*fn3 As support for these "facts," Plaintiff cites to her medical records as well as the "medical facts discussed by this Court at pp. 12-13 of its August 11, 2005 Opinion and Order of Court." Id.

This portion of Plaintiff's Request is denied. The alleged "facts" set forth in paragraph 1 and first paragraph 2 of Plaintiff's Request concern medical opinions, diagnoses, and other facts regarding Plaintiff's medical condition and treatment that are disputed by Defendant. See Def.'s Brief in Opposition (Docket No. 106). In addition, the accuracy of Plaintiff's medical records (the source of these facts) is not beyond question.*fn4 For these reasons, judicial notice of these ...


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