Monday, July 13, 2009
Federal Rule of Evidence 801(d)(2)(D) provides that
[a] statement is not hearsay if...The statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.
Like all admissions, employee admissions are generally admissible under Rule 801(d)(2)(D) notwithstanding the personal knowledge requirement of Federal Rule of Evidence 602. But, as the recent opinion of the Seventh Circuit in Mister v. Northeast Illinois Commuter R.R. Corp., 2009 WL 1956333 (7th Cir. 2009), makes clear, courts can still find employee admissions made without personal knowledge inadmissible pursuant to Federal Rule of Evidence 403.
In Mister, after a long work day, Gary Mister walked toward his car, slipped, fell, and sued his employer, the Northeast Illinois Commuter Railroad Corporation (Metra), under the Federal Employers Liability Act. At the hospital, Mister could not discuss the incident with Metra Safety Officer Kirk Kroner because he was in pain, but Kroner discussed the fall with Mister's supervisors, who were present at the hospital but did not witness the fall. Kroner handwrote a report of his findings, which also included a statement that another employee had fallen the previous week at the same spot.
According to the report, “[Metra] had a similar incident less then [sic] a week earlier in the same spot.” This statement referred to a slip and fall reported by another Metra employee, Wally Wyman. Apparently, Wyman parked in the same unpaved lot and also slipped on ice. No one knew the details of Wyman's fall. More importantly, despite stating that it was in the same spot, Kroner did not know where either Mister's or Wyman's fall had taken place.
At trial, Mister attempted to introduce this report as an employee admission under Federal Rule of Evidence 801(d)(2)(D), but the district court found it inadmissible because (1) it was not based upon personal knowledge, making it inherently unreliable, and (2) it was inadmissible under Federal Rule of Evidence 403 because its was lacking in probative value based upon Kroner's lack of personal knowledge.
After the jury subsequently found for the defendant, Mister appealed, claiming that the district court erred in deeming the report inadmissible. And the Seventh Circuit agreed with him that the district court erred in finding the report inadmissible under Rule 801(d)(2)(D). The court rejected Metra's contention that employee admissions must be based upon personal knowledge, concluding,
Metra would have us exclude a great chunk of corporate testimony from employees because they rely on information that other people have told them in the course of the job. Briefly, Kroner's report meets all of the Rule's criteria to be classified as non-hearsay. Undisputably, the report that was offered by Mister against his employer Metra, was prepared in the usual course of business, by Metra's Safety Officer (the agent) investigating Mister's work accident. Rule 801(d)(2)(D) does not require anything else along the lines of internal verification of the report's contents.
requires that a district court determine whether the prejudicial effect of admitting such evidence outweighs its probative value and thereby renders it inadmissible....What we have here is a non-hearsay report that is derived from multiple levels of hearsay. Although the report stated that a similar fall occurred in the "same spot," no one knew what spot. No one knew exactly where Wyman had fallen and there is absolutely no basis to conclude that Mister slipped and fell in the same location as Wyman.