Friday, July 1, 2011
Formula 409: D. Mass. Errs in Deeming Evidence Of Payment Of Maintenance & Care Inadmissible Under Rule 409
Federal Rule of Evidence 409 provides that
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
The classic Rule 409 case involves Dan and Paul getting into a car accident and Dan jumping out of his car and promising to pay for Paul's medical expenses and/or paying for Paul's medical expenses. Rule 409 deems Dan's offer/payment inadmissible to prove Dan's liability for the accident because, according to the Advisory Committee's Note, such an offer/payment
is usually made from humane impulses and not from an admission of liability, and...to hold otherwise would tend to discourage assistance to the injured person.
But what happens when a party seeks to introduce evidence of such an offer/payment to prove something other than liability? The evidence should be admissible, contrary to the conclusion of the United States District Court for the District of Massachusetts in its recent opinion in Zeghibe v. ConocoPhillips Co., 2011 WL 2489736 (D.Mass. 2011).In Zeghibe, Kenneth Zeghibe brought an action against ConocoPhillips, seeking damages for personal injury under the Jones Act and the doctrines of unseaworthiness and maintenance and cure. The Jones Act provides that
A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.
After Zeghibe brought his action, ConocoPhillips moved for summary judgment, claiming, inter alia, that Zeghibe was not a "seaman" at the time his alleged injuries occurred. In response, Zeghibe claimed that he qualified
as a seaman because he served as a sea captain in ConocoPhillips' fleet of tankers, and remained a ship's master throughout his extended "special assignment" with the Polar Tankers construction project. His responsibilities included conducting sea trials on the vessels as they neared completion, and captaining the vessels between ports.
The court noted that "Zeghibe also assert[ed] that ConocoPhillips 'treated him as a seaman, paying maintenance and cure.'" The court, however, disregarded this evidence and ultimately granted ConocoPhillips' motion for summary judgment, pointing out that "[a]s ConocoPhillips notes, this evidence is not admissible under Fed.R.Evid. 409 ('Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.')."
The way I see it, this conclusion was plainly wrong. Under Rule 409, a party cannot use the other party's offer to pay his medical expenses and/or actual payment as evidence that the other party caused his injuries. In other words, in the classic case cited above, Paul could not use Dan's offer to pay his medical expenses as evidence that Dan was driving negligently and caused the car accident.
This was not, however, the way in which Zeghibe was trying to use ConocoPhillips' payment of his maintenance and cure. He was not using this payment as evidence that ConocoPhillips was negligent or otheriwse culpable; he was using it to prove that it treated him as a "seaman."
As a comparison, take a look at Federal Rule of Evidence 411, which precludes the admission of evidence of liability insurance to prove negligence or otherwise wrongful conduct but allows for the admission of such evidence to prove, inter alia, agency. Assume in the car crash example from above that Paul sues Company, claiming that Dan was its agent making a delivery, and Company responds that Dan was an independent contractor. Paul could introduce evidence that Company took out a liability insurance policy on Dan, not to prove Company's culpability, but to prove that Dan was Company's agent.
This is similar to how Zeghibe was using ConocoPhillips' payment of his maintenance and cure. He was using it to prove that he stood in a certain employment relationship with ConocoPhillips -- he was a "seaman" for them -- and not to prove its culpability. The court thus erred in deeming the evidence inadmissible.