Wednesday, December 15, 2010
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition....
Because such a prior inconsistent statement is not hearsay, it is both admissible to impeach the witness and to prove the truth of the matter asserted as is made clear by the recent opinion of the Supreme Court of Mississippi in James K. Triplett as the Administrator of the Estate of Jean B. Triplett, Deceased v. River Region Medical Corporation, 2010 WL 5093777 (Miss. 2010).In Triplett,
On January 6, 2004, Jean Triplett...underwent an elective hip-replacement surgery due to her struggles with bilateral degenerative hip disease. Approximately one day after the surgery, Triplett suffered from a stroke and eventually died on October 25, 2006. Triplett's heirs and estate...filed suit in the Circuit Court of Warren County, Mississippi. River Region Medical Corporation, William C. Porter Jr., M.D., John Adams, M.D., Patty Stone, CRNA, Gladys Howard, R.N., and John and Jane Does 1-20...were named as Defendants. Prior to the jury trial, River Region filed a motion for summary judgment, which was granted as to Dr. Porter, Howard, and River Region regarding any liability for Dr. Lamar McMillin, the physician who performed the surgery, under the theory of respondeat superior. At the close of the trial, the jury returned a verdict in favor of River Region, after which Triplett's heirs filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied; and Triplett's heirs timely appealed....
One of the grounds for the appeal was that the Circuit Court improperly allowed for the admission of an affidavit executed by Dr. Badr, River Region's expert witness, setting forth his opinion of the case. During cross-examination, the Triplett heirs questioned Dr. Badr regarding the medical care provided to Triplett, while simultaneously reading into evidence parts of Dr. Badr's affidavit that contained prior inconsistent statements. Upon re-direct examination, River Region thereafter moved to place the affidavit into evidence, and the Circuit Court allowed the affidavit to be introduced into evidence over a hearsay objection made by the Triplett heirs.
In finding that the Circuit Court acted properly, the Supreme Court of Mississippi noted that the affidavit was given under oath, making it nonhearsay under Mississippi Rule of Evidence 801(d)(1)(A). Therefore, the affidavit was admissible not only to impeach Dr. Badr but also to prove the truth of the matter asserted in the affidavit, which is why River Region could place it into evidence.