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Posts Tagged ‘#GeneralLiability’

The Hearsay Exception for Market Reports

Posted on: July 15th, 2016

By:  Ryan Babcock

The hearsay exception for “compiled information” or market reports is an important tool that allows for the admission of such evidence notwithstanding the hearsay rule, but it is generally strictly applied by the courts. For that reason, counsel must carefully consider whether the rule permits the admission of such evidence in developing a trial strategy with respect to the admissibility of certain exhibits.

The hearsay exception for market reports and other compilations is defined as follows by Rule 803(17) of the Federal Rules of Evidence:

Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

Most courts find these compilations reliable, and admissible, provided that they are used by the public or a particular profession or occupation (and thus reliability is supported by market forces). In weighing the admissibility of such evidence, courts usually also consider whether the evidence is “necessary,” such as whether it is the only way to determine the truth of the matter at issue, and whether locating the person who made the report would be impossible. Recent state cases in the criminal context drive home this point: People v. Hard, 342 P.3d 572, 575–79 (Colo. App. 2014) (no necessity to rely on drugs.com for evidence that the defendant possessed a particular unprescribed pharmaceutical drug because the state could, but did not, have the drug tested); Hardy v. Florida, 140 So. 3d 1016, 1019–21 (Fla. Dist. Ct. App. 2014) (finding that evidence from the E-FORCSE database should not have been admitted because it was not published—as required by Florida’s evidence rules—and noting that there was no evidence that the information in the database was “reliable,” rather than simply being an investigative

tool); People v. Franzen, 210 Cal. App. 4th 1193, 1209 n.6, 1213–14 (Cal. Ct. App. 2012) (no necessity for database evidence because the state could have subpoenaed the telephone company, and the Entersect website was not shown to be accurate).

Certain statements in a publication or “compilations” would clearly not qualify under the rule. See Danner v. Int’l Freight Sys., 855 F. Supp. 2d 433, 472 & n.53 (D. Md. 2012) (noting that a quote from a popular magazine, without citation, regarding the “increased trophy fee” for a lion obtained in an overseas safari is inadmissible). A federal district court in Texas has rejected efforts to use a LinkedIn profile to determine a person’s location, finding the requisites of reliability and necessity clearly unsatisfied. Personal Audio, LLC v. CBS Corp., No. 2:13-CV-270-JRG-RSP, 2014 U.S. Dist. LEXIS 37089, at *15–16 (E.D. Tex. Mar. 20 2014) (Payne, Mag. J.). And the Fourth Circuit has recently explained that statements in a material safety data sheet would not be sufficiently reliable to be admitted under this exception, inasmuch as the statements were opinion statements, or warnings, made in an effort to limit liability, not factual compilations as such. In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 810 F.3d 913, 923–24 (2016) (such evidence was admissible as non-hearsay to show notice).

In another case, a plaintiff’s attempt to admit certain industry publications and stock analyst reports, in wholesale form, as exhibits was rejected by a federal district court, which explained that courts take a narrow view of the exception, applying it to true compilations, not documents containing narrative and potentially subjective opinion. The court did note that properly redacted exhibits might be admitted at a later date. Bianco v. Globus Med., Inc., No. 2:12-CV-00147-WCB, 2014 U.S. Dist. LEXIS 3430, at *2–7 (E.D. Tex. Jan. 12, 2014).

Counsel should also bear in mind authentication, when there is any question concerning the authenticity of the evidence. In such circumstances, counsel must be prepared to lay a foundation, through live witness testimony or otherwise, that the compilation or market report is properly authenticated. See, e.g., Skyline Potato Co. v. Hi-Land Potato Co., No. CIV 10-0698 JB/RHS, 2013 U.S. Dist. LEXIS 10670, at *21–22 (D.N.M. Jan. 18, 2013) (authentication required as to a document purporting to show the great decline of the price of potatoes). And while the evidence from the compilation may properly get into evidence, that evidence alone may not suffice to overcome summary judgment, especially where the figures given are in the form of a range and the proponent of the compilation offers no additional evidence regarding the fact at issue. See Colvin v. Ameri-National Corp., No. 1 CA-CV 10-0528, 2011 Ariz. App. Unpub. LEXIS 1240, at *9–11 (Ariz. Ct. App. Oct. 4, 2011) (finding Kelley Blue Book admissible but insufficient to establish the valuation of the plaintiff’s Honda, as there was no particular evidence regarding the vehicle’s condition). Alternatively, counsel should consider whether the court might take judicial notice of the compilation at issue. Hines v. Shineski, No. 10-3973, 2012 U.S. App. Vet. Claims LEXIS 1385, at *9 (Vet. Claims App. July 5, 2012) (taking judicial notice of a city directory for 1967–68).

“Originally published in the Spring 2016 Newsletter of the American Bar Association’s Trial Evidence Committee.”

Hearsay Exception for Recorded Recollections: Pitfalls to Avoid

Posted on: July 15th, 2016

By:  Ryan Babcock

Rule 803(5) of the Federal Rules of Evidence operates as an exception to the hearsay rule, provided the requirements governing the rule as to the “recorded recollection” are satisfied. The rule is as follows

Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

While the literal text of the rule might prompt philosophical reflection regarding whether the record complies with subpart (c), and how one might go about proving “accuracy” when the witness does not remember enough about the matter to testify fully and accurately, courts have taken a pragmatic approach in applying the rule. See Priester v. Texas, No. 08-13-00278-CR, 2015 Tex. App. LEXIS 10165, *28–*29 (Tex. Ct. App. 8th Dist. Sept. 30, 2015) (even where a witness displayed an inconsistent or spotty memory, the court allowed the state to read the witness’s prior grand jury testimony into the record, as the witness’s recollection would only be partial).

Still, counsel will not be able to establish a proper foundation when the witness cannot vouch for the accuracy of the statement because she does not remember making it, meaning that it cannot be shown to “accurately reflect[] the witness’s knowledge” at the time the witness offers her testimony. Kubsch v. Neal, 800 F.3d 783, 793–94 (7th Cir. 2015) (applying Indiana law, but describing outcome as consistent with federal evidentiary rules and those applicable in other states).

What about a situation where the witness made a statement to another person, and that other person was the one who took notes of the conversation? Even if it was not contemporaneously “adopted by” the witness, courts have found that it is admissible, provided that the witness testifies that the record is accurate. Bostwick v. Watertown Unified School District, Case No. 13­C-1036, 2015 U.S. Dist. LEXIS 46495 (E.D. Wis. April 9, 2015); see also United States v. Williams, 951 F.2d 853 (7th Cir. 1993). This result appears to be at odds with the express terms of the rule, but many courts have permitted this evidence nonetheless. If the witness is not present to testify at all, however, this hearsay exception will not apply. Arizona v. Havatone, No. 1 CA-CR 14-0223, 2015 Ariz. App. Unpub. LEXIS 1298 at *27 n.7 (Ariz. Ct. App. Oct. 27, 2015) (statement from a deceased witness not admissible).

Counsel should also consult Rule 612 when considering this type of evidence. That rule gives an adverse party certain rights when a writing has been used by a witness to refresh his memory, at or before the party offers the testimony into evidence. For example, counsel can demand to inspect the writing, may cross-examine the witness about it, and may introduce in evidence any other portion that relates to the witness’s testimony.

Notwithstanding the exception to the hearsay rule provided for recorded recollections, another common problem in these types of documents is hearsay within hearsay. This can be important because the really objectionable (or critically important, depending on your circumstances) evidence might still be kept out of trial altogether under that rationale.

“Originally published in the Spring 2016 Newsletter of the American Bar Association’s Trial Evidence Committee.”

What’s Uga Worth? The Georgia Supreme Court Provides the Calculus

Posted on: June 30th, 2016

By:  Wes Jackson

Earlier this month, the Georgia Supreme Court clarified the appropriate measure of damages for family pets and other animals that are killed or injured due to a defendant’s negligence. Under the Court’s ruling in Barking Hound Village, LLC v. Monyak, S15G1184, —S.E.2d— (Ga. June 6, 2016), a negligently injured or killed animal’s value is determined by the animal’s fair market value at the time of the loss plus interest and, in addition, any medical and other expenses reasonably incurred in treating the animal. The Court also held that while the sentimental value of the dog to the owners was not an appropriate measure of the dog’s value, certain non-economic factors, such as the dog’s breed, age, training, temperament, and use, were nevertheless admissible.

Perhaps the best way to illustrate Georgia’s top court’s holding will be with an example involving the state’s top dog: Uga, the iconic English bulldog who proudly serves as the University of Georgia’s mascot. If Uga prematurely passed away due to a tortfeasor’s negligence, what factors could a jury consider in determining his value? The jury could not consider Uga’s sentimental worth to his owners or the millions of Georgians who comprise the Bulldog Nation—the Supreme Court’s acknowledgement that “the unique human-animal bond, while cherished, is beyond legal measure,” likely applies to Uga’s immeasurable sentimental value as well. However, that inadmissible sentimental value would likely influence other factors that a jury could consider. For example, Uga’s fair market value is unlike any other dog’s in the state, in that his progeny will likely fetch top-dollar in the market for pure-bred English Bulldogs. Additionally, Uga’s popularity may command a high fee for his presence at Georgia sporting events and related activities. Finally, in light of Uga’s symbolic importance in the state and income-generating potential, a jury would likely find reasonable even the most exorbitant veterinary fees incurred in attempting to cure his hypothetical injury or ailment.

Thus, the Georgia Supreme Court’s holding in Barking Hound Village may preclude an animal’s valuation based solely on its sentimental value to its owner, but it does not shut out non-economic factors completely. The Court’s holding will likely impact the types of evidence that will be submitted to juries in a variety of future cases, including those concerning car accidents, insurance claims, veterinary malpractice, and, as in Barking Dog Village, kennels and other pet-service providers. While other dogs may not be as valuable as Uga, the Court’s calculus leaves plenty of room for dog owners to claim the full value of their lost animals.

Police Body Cams – Look Before You Leap!

Posted on: June 10th, 2016

By:  Sun Choy

Many in the media and the public believe that law enforcement agencies should be rushing to equip every officer with a body cam.  While the focus is on the many benefits of body cams, there is little discussion about the many limitations and unanswered questions raised by the use of body cams.  In this article from The Police Chief, the author concisely addresses the many challenges associated with body cams.  These issues range from the practical – how do you ensure officers turn on the cam at the right time – to the potential for civil liability – do officers have a right to record inside private homes or other areas where there is a reasonable expectation of privacy.   The very valid point of the article is that agencies must thoughtfully address these challenges before rushing to deploy body cams.