Gary Mister v. Northeast Illinois Commuter RR ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2234
G ARY M ISTER,
Plaintiff-Appellant,
v.
N ORTHEAST ILLINOIS C OMMUTER R AILROAD
C ORPORATION, doing business as
Metra Metropolitan Rail,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-00407—Geraldine Soat Brown, Magistrate Judge.
A RGUED F EBRUARY 11, 2009—D ECIDED JULY 9, 2009
Before B AUER, R IPPLE and W OOD , Circuit Judges.
B AUER, Circuit Judge. After a long work day, Gary Mister
walked toward his car, slipped, fell, and sued his em-
ployer, the Northeast Illinois Commuter Railroad Corpora-
tion (Metra), under the Federal Employers Liability Act.
45 U.S.C. § 51 et seq. 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
2 No. 08-2234
with Mister’s supervisors, who were present at the
hospital but did not witness the fall. Kroner handwrote
a report of his findings, which included a statement
that another employee had fallen the previous week at
the same spot. The district court found the report inad-
missible; it determined that the report was inherently
unreliable since Kroner had no personal knowledge of
the events described. On appeal, Mister argues that the
report should have been admitted as an admission by a
party opponent pursuant to Federal Rule of Evidence
801(d)(2)(D). For the following reasons, we affirm.
I. BACKGROUND
On January 25, 2005, Mister arrived at work, parked in
an unpaved lot (where parking was prohibited) approxi-
mately 15 feet from the train on which he would work
that day, then worked his “run” (which is a full-day shift),
and returned to the station. On the short walk back to
his car, Mister slipped on snow or ice and fell.
Mister’s wife was at the station and took him to
the hospital. Pursuant to Metra policy, Mister informed
his on-duty supervisor, Bob Tague, about his accident.
Tague reported the fall to district superintendent
Hersey Steptoe. Once informed, Tague and Steptoe
made their way to the hospital to make sure Mister was
safe and to investigate the event.
Metra’s Safety Officer, Kroner, joined the other Metra
officers at the hospital. Kroner’s job required that he
ensure that all safety rules were complied with and, in
No. 08-2234 3
case of an employee injury, to investigate the accident and
summarize his findings in a report. At the hospital,
Kroner was not able to discuss the accident with Mister
due to Mister’s pain. Instead, Kroner simply discussed
the event with Tague and Steptoe and recorded his
finding on a single sheet of loose-leaf paper.
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 the report as a
party admission under Fed. R. Evid. 801(d)(2)(D) and have
the Metra officers testify about the report’s contents—
mainly, Wyman’s accident. The district court found the
report inadmissible and did not allow testimony
regarding it; she found the report inherently unreliable
and stated, “[t]he agent has to have a basis for making
the statement. [Kroner] has no personal knowledge on
which to make that statement, and [Mister has not] estab-
lished a foundation for it.” Ultimately, the court barred
the report and its accompanying testimony. The district
court further denied the report under Fed. R. Evid. 403.
It stated that “even under Rule 403, the document
should not be admitted. [Kroner’s] testimony is contrary.
It undermines his ability to draw the conclusion that
4 No. 08-2234
is stated in that letter that [Metra] had an accident at
the . . . same spot . . . because [Kroner] testified that he
didn’t know where Gary Mister fell.”
The jury returned a verdict in favor of Metra and
Mister timely appealed.
II. DISCUSSION
Mister argues that the district court erred when it
refused to admit Kroner’s report under Fed. R. Evid.
801(d)(2)(D), and allow Metra officers to testify about
said report. We review the court’s evidentiary rulings
for an abuse of discretion. Aliotta v. National Railroad
Passenger Corp., 315 F.3d 756, 759 (7th Cir. 2003). Under this
standard, “we will not find error unless the court’s deci-
sion is based on an erroneous conclusion of law or
the record contains no evidence on which the court ratio-
nally could have based its decision or the supposed facts
which the court found are clearly erroneous.” Young v.
James Green Mgmt., Inc., 327 F.3d 616, 621 (7th Cir. 2003).
Kroner’s report, and its reference to Wyman’s fall,
are certainly hearsay in the usual sense of that term.
Kroner wrote the statement based on information pro-
vided to him by Tague, who had learned it from Mister,
who was presumably told by Wyman that he had fallen
a week earlier. But nevertheless, “Rule 801(d)(2), on its
face, merely defines as non-hearsay certain hearsay-
like evidence.” Aliotta, 315 F.3d at 761. Under Rule
801(d)(2)(D), “[a] statement is not hearsay if . . . [t]he
statement is offered against a party and is . . . a statement
No. 08-2234 5
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 . . . .” United
States v. Swan, 486 F.3d 260, 264-65 (7th Cir. 2007) (citing
Fed. R. Evid. 801(d)). This Rule “simply requires that
the statement be made by an individual who is an agent,
that the statement be made during the period of the
agency, and that the matter be within the subject matter
of the agency.” Young, 327 F.3d at 622.
The district court refused to admit this statement on the
ground that it was inherently unreliable since it lacked
foundation and was based on various levels of hearsay.
Metra argues that the requirement of first-hand knowl-
edge is imbedded within the Rule and Kroner simply
had no first-hand knowledge of the matters about which
he wrote. Neither Kroner, Tague, nor Steptoe were
present during Mister’s or Wyman’s fall or knew the
location of Wyman’s fall. Mister did not discuss his
fall with the report’s author, Kroner, and Kroner did not
know where Mister had fallen when he wrote the state-
ment. Kroner’s investigation only included what Tague
and Steptoe may have been told about the previous
incident. Thus, Metra claims that the document lacks
the proper foundation to be admitted as a party admission.
Metra’s position is this: a district court must exclude
statements made in a corporate officer’s report, who was
hired to investigate incidents by discussing the event
with other corporate employees and to summarize
their accounts of the event in a report, if the officer
lacked first-hand knowledge of the incident.
6 No. 08-2234
We disagree with that position. Metra would have us
exclude a great chunk of corporate testimony from em-
ployees 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. See Koszola v. Bd. of Educ., 385 F.3d 1104,
1110 (7th Cir. 2004) (statement admissible under
801(d)(2)(D) even though district court refused to
consider it because it lacked proper evidentiary founda-
tion). Accordingly, we believe that the district court
erred in this finding and that Kroner’s report does
fall within the confines of Rule 801(d)(2)(D).
But this does not automatically require that the report be
admitted into evidence. After statements are classified as
non-hearsay under Rule 801(d)(2)(D), “[t]he question
remains whether there are other objections.” Aliotta, 315
F.3d at 763. Mister maintains that, as a Rule 801(d)(2)
admission, the testimony is admissible regardless of other
considerations. At oral argument, Mister argued that
anything asserted by an investigative official, if found in a
report created within the scope of his employment, even if
extremely ridiculous like “the cow jumped over the moon,”
should come into evidence. Although there are rules
that call for the generous treatment of party-opponent
No. 08-2234 7
admissions (the 1972 advisory committee notes to Rule 801
suggest that admissions are sometimes free from the
personal knowledge requirement of Rule 602), they “still
do not stand for the proposition that Rule 801(d)(2)
trumps all other Federal Rules of Evidence.” Id.(emphasis in original).
Fed. R. Evid. 403 requires that a district court deter-
mine whether the prejudicial effect of admitting such
evidence outweighs its probative value and thereby
renders it inadmissible. Aliotta, 315 F.3d at 763. 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.
Although it would have been proper to admit the
report and allow Metra to expose the statement’s unreli-
ability on cross-examination, it was not improper to
find the report unreliable based on the multiple levels
of hearsay and lack of precise factual statements. We find
that the district court did not abuse its discretion when
it barred Kroner’s report, and the accompanying testi-
mony about its contents.
III. CONCLUSION
The district court erred when it did not classify the
report as an admission by a party opponent under
Rule 801(d)(2)(D); however, the court did not abuse its
8 No. 08-2234
discretion when it found the record inadmissible
under Rule 403, and therefore, we A FFIRM .
7-9-09