Federal Evidence Review

On review of an Employee Retirement Income Security Act (ERISA) administrative appeal, First Circuit takes judicial notice of general facts regarding Lyme Disease provided on the Centers for Disease Control website finding it was “not subject to reasonable dispute,” in Gent v. CUNA Mut. Ins. Society, __ F.3d __ (1st Cir. July 12, 2010) (No. 09-1703)

FRE 201 concerns the process of taking judicial notice. The rule specifies that a court has the discretion to take judicial notice "whether requested or not" by the parties. See FRE 201(c) ("A court may take judicial notice, whether requested or not.") In a recent case, the First Circuit exercised the discretion FRE 201 provides in taking judicial notice of the nature of Lyme Disease. The source for the facts noticed were obtained from a website operated by a government agency, the Centers for Disease Congrol (CDC). The case indicates how expansive may be the scope of facts noticed by a court, as well as demonstrate some of the problems that judicial notice of facts on a web site may create.

In the case, insurance company defendant CUNA stopped paying long-tern disability benefits to plaintiff Gent. Gent's policy was subject to a mental illness limitaton that restricted her coverage to at most two years if she was disabled due to a mental illness. The defendant contended that the plaintiff's disability was a result of mental illness and not Lyme disease, as contended by the plaintiff. Over a period of three and a half years, the plaintiff "appealed the adverse benefits determination." In pursuing these appeals, both parties "supplemented the administrative record with medical opinions from various doctors. These doctors came to divergent conclusions, with some opining that Gent was disabled by Lyme disease and others that Gent, if disabled, was disabled by a depressive disorder." Ultimately the plaintiff filed suit in the federal district court, where both parties moved for summary judgment. The trial judge granted summary judgment to the defendant, "upholding the termination of disability benefits." Gent, __ F.3d at __. The plaintiff appealed the trial court's finding that the policy's mental illness limitation applied because the plaintiff had "failed to prove that her disability was caused by Lyme disease" or any other physical disability.

The First Circuit affirmed the district court's grant of summary judgment, concluding that the defendant's "evidence is stronger" that the plaintiff was suffering from a mental condition and that her disability was not "caused by Lyme disease." The circuit concluded that the defendant had proved by preponderance of the evidence that the plaintiff's disability was not caused by a physical condition (Lyme disease). Even though the record before the trial court noted that doctors provided "conflicting opinions" about whether the plaintiff had Lyme disease,the circuit observed that the laboratory data in the trial court record "lined up almost uniformly against" a Lyme Disease diagnosis. Since the plaintiff had been receiving disability benefits based on a recurrent major depressive disorder" the circuit noted that the symptoms of the depression closely overlapped that of Lyme disease. Gent, __ F.3d at __.

In affirming summary judgment for defendant CUNA, the circuit provided "[s]ome background" on the disease that the plaintiff alleged, and which the court rejected, was the cause of her disability:

"Lyme disease is caused by a specific bacterium, 'Borrelia burgdorferi,' which normally lives in mice, squirrels and other small animals. It is transmitted to humans through the bites of particular kinds of ticks. Typically, the first sign of infection is a circular rash called an 'erythema migrans,' which appears at the bite site. This rash can, but need not, take the form of a bulls-eye. Along with the rash, some patients also experience symptoms of 'fatigue, chills, fever, headache, and muscle and joint aches, and swollen lymph nodes .' If not treated, the infection may spread to other parts of the body and cause the following symptoms: loss of facial muscle tone, neck stiffness, severe headaches, shooting pains that may interrupt sleep, heart palpitations and dizziness. If further left untreated, the infection will cause approximately sixty percent of patients to suffer severe joint pain and swelling along with bouts of arthritis. Months to years after an untreated infection, five percent of patients may also develop 'chronic neurological complaints,' including 'shooting pains, numbness or tingling in the hands or feet, and problems with concentration and short term memory.'"

Gent, __ F.3d at __.

This factual background to its disposition was a result of information from a government operated web site, which the court judicially noticed. As explained by the circuit:

"This information is taken primarily from the website of the Center for Disease Control and Prevention ('CDC'), a U.S. federal agency under the Department of Health and Human Services. See CDC, Lyme Disease, http://www.cdc.gov/ncidod/dvbid/lyme/index.htm (last visited June 23, 2010). It is unclear to what extent the information on the CDC's website is formally part of the record. Although the district court and the parties have cited to the CDC website as authoritative, it appears that Dr. Kinderlehrer's report is the only piece of record evidence that references the CDC directly. This is unproblematic, as other evidence in the record conveys most of the information that can be found on the CDC's website. Nevertheless, to be on the safe side, we take judicial notice of the relevant facts provided on the website, which are “not subject to reasonable dispute.”

Gent, __ F.3d at __, n.5 (citing Fed.R.Evid. 201(b),(f); see also Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003) (taking judicial notice of information from official government website)).

Unanswered by the Gent case is exactly what information was judicially noticed. The circuit indicated that it had "last visited" the site it judicially noticed on June 23, 2010 -- some 19 days before it issued its opinion in Gent. A visit to the cited address in mid-July displays an article that includes some of the points noted by the First Circuit in providing "[s]ome background" on Lyme disease. However, the source of other facts cited in Gent are immediately locatable at the site address provided in Gent. For recommendations by the United States Judicial Conference on Preservation Of Internet Materials Cited In Opinions see Judicial Conference Encourages Preservation Of Internet Materials Cited In Opinions.