November 22, 2008
Blame Canada: Case Reveals Odd Texas Rule Of Evidence On Pre-Trial Notice For Foreign Law Arguments
The recent opinion of the Court of Appeals of Texas in In re S.N.A., 2008 WL 4938108 (Tex.App.-Fort Worth 2008), reveals that Texas has a pre-trial notice requirement for parties seeking to raise an issue concerning foreign law at trial.
In S.N.A., Canadian residents A.N.A. and B.B.P. were divorced in a Canadian court. The court awarded B.B.P. custody of the minor child of the marriage and ordered A.N.A. to pay child support. When B.B.P. and S.N.A. later moved to Texas, B.B.P. filed a petition to register the Canadian judgment.
B.B.P. initially alleged that A.N.A. owed past due child support totaling "at least $105,300 without interest" and thereafter filed a petition to modify child support and reduce the unpaid child support to judgment. Specifically, she alleged that A.N.A. had "failed and refused to make child support payments pursuant to the foreign order" and requested that the trial court issue an order establishing child support in accordance with Texas child support guideline.
In response, A.N.A. filed a general denial and asserted that he had paid B.B.P. "substantial sums of money" and was not indebted to her. After conducting a final hearing, the trial court rendered judgment against A.N.A. for (1) $134,039.27 in past due child support and interest, and (2) $8,900.00 in attorney's fees and costs of trial.
A.N.A. subsequently appealed, claiming, inter alia, that the trial court erred in calculating the amount of interest that had accrued on the arrearage he owed under the Canadian order based on Texas law and not Canadian law. The court, however, found that A.N.A. had waived this argument because Texas Rule of Evidence 203 states that
"a party intending to raise an issue concerning foreign law must give notice in the pleadings or 'other reasonable written notice,' and at least thirty days before trial furnish to all parties copies of any written materials or sources that the party intends to use as proof of the foreign law."
And the problem for A.N.A., according to the court, was that while he
"attached a copy of the Canadian order to his pleadings, he provided no notice in the pleadings or other written notice that he intended to assert that Canadian law be applied. Nor did he provide to B.B.P. or the trial court any materials proving Canadian law governing interest rates in arrearages."
I have never seen a rule of evidence similar to Texas Rule of Evidence 203, but it seems like something that certain Supreme Court Justices not named Breyer might enjoy.
November 21, 2008
Collateral Damage: North Carolina Opinion Notes That There Is No Reverse Collateral Source Rule
The collateral source rule is a well established evidentiary rule which states that a defendant cannot present evidence that the plaintiff was already compensated partially or completely by a collateral source (such as an insurance company) for his injuries. The reasoning behind the rule is that the trier of fact might improperly use this evidence to undercompensate the plaintiff for his injuries. As was correctly noted by the Court of Appeals of North Carolina in its recent opinion in Kor Xiong v. Marks, 2008 WL 4906384 (N.C. App. 2008), however, there is no "reverse collateral source rule."
In Marks, June 2005 Kor Xiong was riding in the back seat of a motor vehicle operated by his nephew. While the nephew's car was stopped to wait for traffic to pass before making a left turn, a vehicle operated by Ingrid Diane Marks struck the nephew's vehicle from behind. Nearly a month after the accident, Kor Xiong sought medical treatment at Stanly Memorial Hospital, and the treating physician at the hospital diagnosed him as having "facial nerve palsy" and "neck and back pain secondary to trauma." The next day, Kor Xiong was seen by Dr. John Kilde, who confirmed the earlier diagnosis of facial nerve palsy and prescribed prednisone and eye ointment.
Kor Xiong thereafter sued Marks, alleging personal injury resulting from the collision, and Marks actually admitted that she failed to reduce her speed and conceded that she was "careless in the operation of her vehicle." She alleged, however, that the accident was not the proximate cause of Kor Xiong's injuries.
During Kor Xiong's case, his counsel elicited answers from him about his age, marital status, and wages at the time of the accident. Defense counsel thereafter requested a bench conference to discuss the admissibility of further evidence of Kor Xiong's financial condition. During this conference,
"Plaintiff argued that the jury needed to understand that plaintiff was young, married and made only $8.50 per hour. Plaintiff argued to Judge Craig that this was very relevant evidence as it explains why plaintiff waited for several weeks before seeking medical attention despite his symptoms. Defendant argued that...evidence of plaintiff's ability to pay medical bills [was prohibited by] the 'reverse collateral source' [rule]."
After the conference, Judge Craig instructed Kor Xiong's counsel not to ask further questions regarding his financial status. After the jury rendered a verdict for Marks, Kor Xiong appealed, claiming, inter alia, that this ruling was erroneous.
The court rejected this challenge, noting that, "[i]n a civil case, appellate review is limited to questions actually presented to and ruled on by the trial court." And, according to North Carolina Rule of Evidence 103(a)(2),
"Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked."
The problem for Kor Xiong was that "[t]he record contain[ed] no indication that [he] made an offer of proof as to any evidence of [his] financial condition beyond" the answers he gave to his counsel's initial questions.
The court noted in dicta, however,
"We wish to emphasize that our ruling in defendant's favor sub judice does not imply recognition of a 'reverse collateral source rule' in any way. As far as we can tell, no such rule exists. While the well-established 'collateral source rule' excludes evidence that the plaintiff's injury was compensated from another source,...we are not aware of a 'reverse collateral source rule' which categorically excludes evidence of a plaintiff's overall financial condition or lack of another source for compensation for his injuries."
Of course, even there is no explicit "reverse collateral source rule," courts usually preclude evidence of the financial status, good or bad, of any party. As a Texas court concluded in a case I recently posted about, "[n]either a plaintiff's poverty nor a defendant's wealth can help a jury decide whose negligence caused an accident."
November 20, 2008
The Chunking Express: Court Finds Evidence Of Prisoner's "Chunkings" Admissible To Prove Motive/Common Plan
I remember the technique of chunking from my days of taking psychology in college. Essentially, chunking is based on the idea that short-term memory is limited in the number of things that can be remembered, with a common rule being that a person (but not Guy Pearce's character from "Memento") can remember 7 (plus or minus 2) "items" in short-term memory. A person uses chunking to remember more by increasing the size of each item, thus decreasing the number of items he holds in memory. For instance, in remembering the number string 64831996, you could try thinking about the string as 64 83 19 96 rather than as 8 individual numbers.
Well, unfortunately for squeamish readers, that is not that type of chunking dealt with in the recent opinion of the Court of Appeals of Texas in Cantu v. State, 2008 WL 4890035 (Tex.App.-Hous. 2008). In Cantu, Victor Cantu was convicted on two counts of harassment by a person in correctional facilities based upon the following facts as relayed by witnesses for the prosecution:
Texas Correctional Officer Calvin Woods was on duty in the administrative segregation area of a maximum security correctional facility. While passing out necessities, Woods came into contact with Cantu and asked him if he needed any necessities, but Cantu declined. Woods continued on to the next cell when Cantu threw out a brown liquid which "smelled like feces and urine" and which struck Woods and inmate Jeffery Williams, who was helping Officer Woods hand out necessities. Tests later confirmed that the substance was feces.
At trial, the prosecution sought to admit 18 separate extraneous offenses in which appellant had "chunked" (i.e., thrown feces) on other inmates who had passed in front of his cell. The trial court found that this "chunking" evidence was admissible but limited testimony to four or five other chunking incidents. After he was convicted, Cantu claimed, inter alia, that the "evidence offered at trial of extraneous incidents of [his] 'chunking' was admitted in error."
Now, if the prosecution were using this evidence to prove "Once a chunker, always a chunker" or that Cantu had a propensity to throw feces and that he likely acted in conformity with that propensity at the time in question, the evidence indeed would have been admitted in error because it would have violated the first part of Texas Rule of Evidence 404(b), which states that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith."
The second part of Rule 404(b), however, states in relevant part that such evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, [common] plan [or scheme], knowledge, identity, or absence of mistake or accident."
And the court found that two these permissible purposes applied. First, the prior "chunkings" gave rise to possible retaliation by other inmates, giving Cantu a motive to try to keep himself in administrative segregation by committing additional "chunkings." (Cantu himself admitted that he had repeatedly asked to be transferred to a different unit or population). And, indeed, as is clear from the alleged 18 extraneous offenses of "chunking," fecal matter was Cantu's weapon of choice, and he flung it "under almost the same type of facts" in each of the alleged offenses, revealing a common plan or scheme for ensuring his administrative segregation. Based upon these findings, the court's ruling seems correct to me.
November 19, 2008
Competent Opinion: Court Properly Finds That Mental Incompetence Ruling Didn't Render Witness Incompetent To Testify At Trial
The recent opinion of the United States District Court for the Western District of North Carolina in Witherspoon v. United States, 2008 WL 4891117 (W.D.N.C. 2008), is further evidence that courts deem almost any witness competent to testify under Federal Rule of Evidence 601. In Witherspoon, Marvin Harold Witherspoon pled guilty to aiding and abetting the inducement of a person under the age of 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, which visual depictions were produced using materials that had been transported in interstate commerce, in violation of 18 U.S.C. Sections 2251(a) and 2
Witherspoon thereafter moved to vacate, alleging, inter alia, that the government committed prosecutorial misconduct and created a Brady error by not disclosing that the alleged victim was found to be mentally incompetent prior to Witherspoon's guilty plea. Specifically, the alleged victim was deemed incompetent as a result of his parents seeking a guardian for him because of his substance abuse, an unspecified learning disability, and moderately severe bipolar disorder, requiring long-term residential care.
Witherspoon claimed that evidence of the alleged victim being declared mentally incompetent was exculpatory, thus triggering Brady, because it would have meant that he was incompetent to testify against Witherspoon. The court, however, disagreed, finding that the alleged victim was competent to testify under Federal Rule of Evidence 601, which states that:
"Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law."
As I have noted before, very few witnesses are deemed incompetent to testify under Rule 601, and according to the court, the alleged victim would not have been one of them. Instead, the court noted that the Fourth Circuit has found that "all witnesses are presumed competent to testify and may only be disqualified if the witness does not have knowledge of the matters about which he is to testify, lacks the capacity to recall the events about which he is to testify, or does not understand the duty to testify truthfully." The court then concluded that "while the Clerk of Superior Court in Caldwell County found the minor to be unable to manage his own affairs, none of the assertions made by the victim's parents in seeking the guardianship and none of the Clerk's findings suggest that the victim was unable to recall the events about which he was to testify or appreciate his duty to testify truthfully."
(In addition, the court found that "contrary to [Witherspoon]'s assertions that the fact of the victim's incompetency would have helped his case, former Assistant United States Attorney...Brian Cromwell makes clear in his affidavit that [Witherspoon] may have been exposed to a higher range of imprisonment had Mr. Cromwell been aware of the victim's incompetency, because the Government would have considered an offense level enhancement based on the victim's incompetency.").
November 18, 2008
Smuggler's Blues: Eleventh Circuit Finds Expert Testimony Was Properly Received In Traffic Stop Drug Search Case
Like the Lopez opinion that I blogged about last Friday, the recent opinion of the Eleventh Circuit in United States v. Steed, 2008 WL 4831413 (11th Cir. 2008), helps define the limited reach of Federal Rule of Evidence 704(b). It also addresses one of the most clearly defined situations covered by Federal Rule of Evidence 703.
In Steed, Harold Orven Osgood appealed from his conviction for possession with intent to distribute 100 kilograms or more of marijuana. That marijuana was discovered in a tractor-trailer being driven by Osgood's co-defendant Antwan Lamount Steed, with Osgood as a passenger. According to law enforcement officer Alejandro Gonzalez, he pulled over the tractor-trailer because it was following another vehicle too closely and then decided to search the vehicle (with a canine unit) because, during the traffic stop, Osgood's hands were visibly shaking, he had sweat on his forehead even though the air conditioner had been on, and he avoided making eye contact when speaking.
When asked about the basis for this and other testimony, Gonzalez made "general references to conversations that he had with other law enforcement officers over the course of his career, his history of participation in unrelated searches and arrests of criminal suspects, and literature published by EPIC and NDIC keeping him apprised of trends in drug trafficking."
This testimony was instrumental to the denial of the motion to suppress the marijuana and the conviction of Osgood, and, understandably, formed one of the bases for his appeal.
One of the grounds of Osgood's appeal was that Gonzalez's testimony violated Federal Rule of Evidence 703, which states in relevant part that:
"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."
Osgood claimed that the conversations, arrests, and literature upon which Gonzalez based his opinion were inadmissible hearsay. As the Eleventh Circuit correctly noted, however, the problem with this argument was that "Osgood d[id] not dispute that general training and experience, discussions with other law enforcement officers, participation in searches and arrests of criminal suspects, and literature about trends in law enforcement are reasonably relied upon by experts in the law enforcement field." Moreover, the court found that "we have previously determined similar sources to be reasonably reliable for purposes of Rule 703."
Another of the grounds for Osgood's appeal was that Gonzalez's testimony violated Federal Rule of Evidence 704(b), which states that:
"[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
The Eleventh Circuit disagreed, concluding that while Gonzalez's testimony "gave rise to an inference that Osgood knew that he was transporting contraband, Gonzalez did not expressly state this inference. Instead, he let the jury draw its own conclusions from this testimony. Thus, Gonzalez's testimony did not violate Rule 704(b)."
I agree. As I noted in a recent post, "[e]xpert testimony is admissible if it merely supports an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony."
November 17, 2008
Driving That Train: Supreme Court Of Tennessee Denies Plaintiffs' Attempt To Get Around Rule 407 In Train Crossing Accident Case
I have seen plaintiffs make some squirrely arguments to try to get around Federal Rule of Evidence 407 and state counterparts, but the plaintiiff's attempt to do so in Tennie Martin et al. v. Norfolk Southern Railway Company et al., 2008 WL 4890252 (Tenn. 2008), has to take the cake.
Norfolk Southern arose out of the tragic death of Kathryn Martin, who was killed when her vehicle was hit by a train. Thereafter, various surviving family members sued Norfolk Southern (and its engineer), claiming that it permitted vegetation at the crossing to block Mrs. Martin's view of the approaching train. The defendants moved for summary judgment dismissing the complaint, and the trial judge granted the motion, prompting the plaintiffs' appeal, which eventually reached the Supreme Court of Tennessee.
And while the court found several genuine issues of material fact rendered the trial court's entry of summary judgment erroneous, it also found that the plaintiffs would not be able to present evidence at trial of a subsequent remedial measure taken by Norfolk Southern.
Specifically, Norfolk Southern cleared the vegetation at the crossing thirty-one months after Mrs. Martin's death. The trial judge made a pre-trial evidentiary ruling that this evidence would be inadmissible during the compensatory damages stage of the trial pursuant to Tennessee Rule of Evidence 407, which states that:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove strict liability, negligence, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving controverted ownership, control, or feasibility of precautionary measures, or impeachment."
On appeal, the plaintiffs did not claim that the evidence that Norfolk Southern cleared the vegetation was admissible for one of the permissible purposes listed in Rule 407; instead, they claimed that the clearing of the vegetation was not a subsequent remedial measure. Specifically, the plaintiffs
"contend[ed] that the clearing was not subsequent because it was separated by too great a period of time. Furthermore, they argue[d] that the clearing was not remedial because it was carried out in accordance with Norfolk's internal policies rather than with the intent of remedying the condition that allegedly lead to Mrs. Martin's death."
I think that anyone looking at the text of Rule 407 can see that these arguments don't hold any water, and that is exactly what the Supreme Court of Tennessee found,
"conclud[ing] that these arguments [we]re without merit. The clearing [wa]s remedial because it corrected an allegedly dangerous condition and made the crossing safer for future motorists....That the clearing was carried out pursuant to corporate policy does not undermine the remedial nature of the action. In addition, the clearing of the vegetation undisputedly followed the accident giving rise to this action....That it occurred over two years later does not make the event any less subsequent."
November 16, 2008
Tortious Interference Gives You Wings: Court Finds Expert Testimony Admissible On Only 1/3 Of Counts In Case Against Red Bull
The recent opinion of the United States District Court for the Western District of Kentucky in Western Kentucky Coca-Cola Bottling Co., Inc. v. Red Bull North America, 2008 WL 4876520 (W.D.Ky. 2008), reveals that, to be admissible under Federal Rule of Evidence 702, expert testimony must be both reliable and relevant.
Red Bull was based upon the termination of a distributorship agreement between Western Kentucky Coca-Cola Bottling Company, Inc. (“WKCC”) and Red Bull. Under that agreement, WKCC became a distributor within Kentucky of beverage products produced by Red Bull. WKCC alleged, however, that Red Bull (1) wrongfully terminated the agreement because it did not provide WKCC with reasonable notice of termination; (2) was unjustly enriched by WKCC's services in connection with the agreement; and/or (3) tortiously interfered with the agreement when it began distributing Red Bull Products.
WKCC sought to have expert witness Robert Taylor testify that Red Bull's actions caused WKCC $8,968,784 in lost profits, but Red Bull moved to strike Taylor because his testimony was irrelevant. And as Meatloaf warbled, "Two out of three ain't bad."
You see, WKCC correctly argued that lost profit damages are not allowed in Kentucky in either a reasonable notice action or an unjust enrichment claim. Therefore, because Taylor's testimony did not "hav[e] any tendency to make the existence of any fact that [wa]s of consequence to the determination of the action more probable or less probable than it would be without the evidence," the court properly found Taylor's testimony on these claims irrelevant and inadmissible under Rule 401/Rule 702. Conversely, the court found that lost profit damages are allowed in Kentucky for tortious interference claims, meaning that Taylor's testimony was relevant, at least for that claim.