Betty Jordan v. Kelly Binns , 712 F.3d 1123 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2134
B ETTY M. JORDAN and
T HEODORE R. JORDAN,
Plaintiffs-Appellants,
v.
K ELLY D. B INNS and
U.S. X PRESS, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cv-01160-WTL-MJD—William T. Lawrence, Judge.
A RGUED O CTOBER 12, 2012—D ECIDED A PRIL 4, 2013
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
T INDER, Circuit Judge. This diversity action arises out
of a tragic accident in which Betty Jordan ultimately
lost both of her legs at the knees after the motorcycle
she was operating on an interstate highway collided
with a semi tractor-trailer operated by Kelly Binns.
Betty and her husband, Ted Jordan (collectively, the
Jordans or the plaintiffs), sued Binns and his employer,
2 No. 11-2134
U.S. Xpress, Inc. (collectively, the defendants), for negli-
gence and loss of consortium under Indiana law. A jury
trial resulted in a defense verdict. The Jordans seek a
new trial on grounds that several of the district court’s
evidentiary rulings ran afoul of the rule against
hearsay, Fed. R. Evid. 802. We affirm.
On the morning of August 22, 2008, Kelly Binns was
driving eastbound on I-70 through downtown Indiana-
polis, Indiana, in a semi tractor-trailer; he had just
picked up a load of auto parts and was transporting it to
a business in Ohio on behalf of U.S. Xpress. Binns
was traveling in the center lane through a right-hand
curve when he heard a “banging noise”; he looked at
his passenger-side mirror and saw a motorcycle sliding
down the right lane. After pulling over to the shoulder,
Binns ran back to find Betty Jordan lying on the pave-
ment, moaning and screaming. According to Binns,
when he arrived at Betty’s side, Betty repeatedly said,
“Tell the trucker it’s not his fault. It’s my fault.” (Betty
has no recollection of making these statements and
does not recall seeing Binns at the scene.) Binns relayed
Betty’s statements to U.S. Xpress claims manager Keri
Bukovitz, Indiana State Trooper Russell Litt, and in-
surance adjuster Kevin Niles (who had been hired by
U.S. Xpress), and each of these witnesses testified to
that effect at trial. Additionally, Trooper Litt recorded
Binns’s statement as to what Binns claimed Betty had
said on his Indiana Officer’s Standard Crash Report
(“Crash Report”).
At some point, Ted Jordan, who had been notified of
his wife’s accident and had arrived on the scene shortly
No. 11-2134 3
thereafter, introduced himself to Binns as Betty’s hus-
band. Binns testified that Ted “mentioned that he was an
old truck driver and that [Betty had] mentioned it
wasn’t [Binns’s] fault.” Trooper Litt similarly testified
that Ted told him that Betty had said that the accident
had been her fault, not the trucker’s fault. As he did
with Binns’s statement, in the Crash Report Trooper Litt
recorded Ted’s recitation of Betty’s statement. Similarly,
Niles testified that, when he went to interview Ted at
the hospital, Ted told him that Betty had said the
accident had been her fault. In his report (“Adjuster’s
Report”), Niles noted Ted’s statement and, citing the
Crash Report, also indicated that Ted similarly had
told Trooper Litt that Betty had said the accident had
been her fault. For his part, Ted denied that Betty had
made any statements concerning fault, and he also
denied that he had made any statements conveying
such to Binns, Trooper Litt, or Niles.
On April 18, 2011, a five-day jury trial commenced.
Prior to opening statements, the Jordans objected to the
defendants’ anticipated use of the Crash Report as a
demonstrative aid during opening statements, on the
basis that the court had not yet made a final determina-
tion as to whether it would be admissible. The district
court overruled the objection, explaining that opening
statements provide a roadmap for the jury and are not
evidence. During trial, in addition to the testimonial
and documentary evidence concerning Betty’s on-scene
statements, the jury heard Binns testify that he was an
experienced truck driver who had driven through
the particular curve on I-70 almost every working day
for ten years and that he was confident his truck had
4 No. 11-2134
not veered into Betty’s lane. For her part, Betty testified
that she remained in the left-hand portion of her lane
the entire time and that Binns’s trailer had migrated
toward her and caused the accident. But Binns’s expert
witness testified that, based on a forensic reconstruc-
tion, the accident could not have occurred as Betty
claimed; according to the expert, Betty’s tires had been
on the white lines dividing the lanes at the time of
impact, meaning that Betty’s motorcycle had been en-
croaching about 18 inches into Binns’s lane. Another
expert called by Binns testified that Betty had not exer-
cised reasonable care in operating her motorcycle.
On appeal,1 the Jordans challenge the admissibility
of several pieces of evidence, all of which the defense
offered to show that Betty admitted fault at the scene.
They contend that each piece of evidence consists of
multiple layers of hearsay and should have been ex-
cluded under the hearsay rule, see Fed. R. Evid. 802,
805. (Although the Federal Rules of Evidence were
amended after the trial in this case, effective December 1,
2011, those amendments were merely stylistic, so we
will cite the current version unless otherwise noted.) We
review a district court’s evidentiary rulings for an abuse
of discretion, and, if we find an abuse, we then deter-
1
Oral argument in this case was held at the Indiana University
Maurer School of Law in Bloomington, Indiana. We thank
the law school’s students, staff, and faculty for their generous
hospitality. We also thank the parties for their patience and
counsel for their vigorous advocacy.
No. 11-2134 5
mine whether the error was harmless. United States v.
Earls, 704 F.3d 466, 470 (7th Cir. 2012).
“Hearsay,” in its simplest terms, is an out-of-court
statement offered for the truth of the matter asserted.
See Fed. R. Evid. 801(c) (“’Hearsay’ means a statement
that: (1) the declarant does not make while testifying at
the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in
the statement.”). As a general rule, hearsay is not admis-
sible. Fed. R. Evid. 802. But the Federal Rules of Evidence
(FRE) contain numerous exceptions to the rule against
hearsay. See Fed. R. Evid. 803, 804. Additionally, FRE
801(d) exempts or excludes from the definition of “hear-
say” certain statements that otherwise would be hear-
say. And “statements . . . that comprise multiple levels
of potential hearsay are admissible if each part is admis-
sible.” United States v. Green, 258 F.3d 683, 690 (7th
Cir. 2001) (citations omitted); see Fed. R. Evid. 805.
The Jordans argue that the following six pieces of
testimonial and documentary evidence should have
been excluded: (1) the statement in the Crash Report
reciting that Ted had told Trooper Litt that Betty had
told Ted that the accident had been her fault; (2) the
statement in the Crash Report reciting that Binns had
told Trooper Litt that Betty had told Binns that the
accident had been her fault; (3) Trooper Litt’s trial testi-
mony that Ted told him that Betty had told Ted that
the accident had been her fault; (4) Trooper Litt’s trial
testimony that Binns told him that Betty had told
Binns that the accident had been her fault; (5) the state-
6 No. 11-2134
ment in the Adjuster’s Report reciting the Crash
Report statement reciting that Ted had told Trooper
Litt that Betty had told Ted that the accident had been
her fault; and (6) Niles’s trial testimony that Binns had
told him that Ted had told Binns that Betty had told
Ted that the accident was her fault. And because, in
their view, the Crash Report contains inadmissible
hearsay, the Jordans also assert that the district court
erred in allowing defense counsel to employ the Crash
Report as a demonstrative aid during opening statements.
It is easy to get lost in the “he said, he said, she said”
of these pieces of evidence, but close examination
reveals that only three chains of communication are
at issue (multiple links in two of those chains are chal-
lenged). The following diagram 2 is helpful:
2
The asterisks identify the eight links in these three chains of
communication admitted into evidence. The Jordans chal-
lenge only six of those links; they do not challenge Binns’s
trial testimony.
No. 11-2134 7
Betty ö Ted ö Trooper Litt* ö Crash Report* ö Adjuster’s
Report*
Betty ö Binns* ö Trooper Litt* ö Crash Report*
Betty ö Ted ö Binns* ö Niles*
The first or inner-most layer of potential hearsay in
each piece of evidence is a statement from Betty that
the accident was her fault, not the trucker’s. The Jordans
wisely concede that Betty’s statements are nonhearsay
statements (also called “admissions”) by a party-opponent
under FRE 801(d)(2)(A), see, e.g., United States v. Spiller,
261 F.3d 683, 690 (7th Cir. 2001), and they do not seek
to have Betty’s statements deemed inadmissible on alter-
native grounds, cf. Mister v. Ne. Ill. Commuter R.R. Corp.,
571 F.3d 696, 699 (7th Cir. 2009) (applying FRE 403
to exclude nonhearsay party admission). So the first
layer of potential hearsay in each of the challenged pieces
of evidence is not hearsay.
Binns’s statements about what Betty said constitute
the second layer of potential hearsay in two of the six
challenged pieces of evidence (and the third layer in Niles’s
trial testimony). Although Binns is a party to this action,
the evidence including his statements was offered by
8 No. 11-2134
him, not against him, so his statements do not qualify as
admissions by a party-opponent under FRE 801(d)(2)(A).
See United States v. McDaniel, 398 F.3d 540, 545 (6th Cir.
2005); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir.
1996). For the most part, the defendants make no attempt
to show that Binns’s statements fall into another defini-
tional exclusion or hearsay exception. Indeed, they
concede that it was error to allow Niles to testify as to
what Binns said that Ted said that Betty said, but they
argue that it was harmless, which we discuss later.
The second layer of potential hearsay in the remaining
pieces of evidence consists of Ted’s statements to others
that Betty said the accident was her fault. Ted, of course, is
a party to this action by way of his loss-of-consortium
claim, which is derivative of Betty’s claim for negligence,
see Durham ex rel. Estate of Wade v. U-Haul Int’l, 745
N.E.2d 755, 764 (Ind. 2001), and his statements were
offered by the defendants. Yet the plaintiffs urge that
Ted’s statements are not party admissions under FRE
801(d)(2)(A) because they were not his own statements
in that he merely repeated Betty’s statements. They cite
no authority to support their position. The defendants,
relying solely on a prior district court decision, In re
Greenwood Air Crash, 924 F. Supp. 1511, 1515 (S.D. Ind. 1995)
(air-crash accident victims’ statements were party ad-
missions, and victims’ wives’ statements repeating what
victims had told them were also party admissions
because wives were plaintiffs as well), say that Ted’s
statements are party admissions. It is true, as the Jordans
point out, that Greenwood Air Crash is not binding, but
our analysis of the issue leads us to the same conclu-
No. 11-2134 9
sion, namely, that Ted’s statements are admissible as
nonhearsay statements by a party-opponent.
Rule 801(d)(2)(A) provides that a statement is not hear-
say if it “is offered against an opposing party and . . . was
made by the party in an individual or representative
capacity.” The definitional exemption for individual
admissions is extraordinarily broad. See Fed. R. Evid.
801(d)(2) advisory committee’s note (calling “for gen-
erous treatment of this avenue to admissibility”); C.B.
Mueller, L.C. Kirkpatrick & C.H. Rose III, Evidence
Practice Under the Rules § 8.27, at 909 (4th ed. 2012) (ex-
emption for individual admissions “has almost infinite
breadth”). Treating party admissions as nonhearsay is
rooted in the nature of the adversarial system, and trust-
worthiness is not a requirement for admission. Fed. R. Evid.
801(d)(2) advisory committee’s note; United States
v. McKeon, 738 F.2d 26, 32 (2d Cir. 1984). There is less
concern about trustworthiness, especially in civil cases,
because the party against whom the statements are
offered generally can take the stand and explain, deny, or
rebut the statements. See Jones v. Nat’l Am. Univ., 608 F.3d
1039, 1045 (8th Cir. 2010); 2 McCormick on Evidence § 245,
at 125 (6th ed. 2006). Because trustworthiness is not
the touchstone for admissibility of party admissions, they
are not subject to the personal-knowledge requirement
of FRE 602, e.g., Aliotta v. Nat’l R.R. Passenger Corp., 315
F.3d 756, 761, 763 (7th Cir. 2002); cf. United States v.
Lindemann, 85 F.3d 1232, 1237-38 (7th Cir. 1996), or the
restrictions of the opinion rule of FRE 701, Russell v.
United Parcel Serv., Inc., 666 F.2d 1188, 1190-91 (8th Cir.
1981). See also Fed. R. Evid. 801(d)(2) advisory committee’s
10 No. 11-2134
note. Moreover, party admissions need not be incul-
patory or against interests. United States v. Reed, 227
F.3d 763, 770 (7th Cir. 2000); United States v. McGee, 189 F.3d
626, 631-32 (7th Cir. 1999). There are only two require-
ments for admissibility under FRE 801(d)(2)(A): a statement
was made by a party, and the statement was offered
against that party. See United States v. Matlock, 415 U.S. 164,
172 & n.8 (1974); United States v. Penaloza, 648 F.3d 539,
547 (7th Cir. 2011).
The Jordans contend, in essence, that a party makes
his or her own statement only when he or she asserts an
original thought and that an assertion of another’s
original thought is outside the scope of FRE 801(d)(2)(A).
They derive this “original thought” requirement from
the text of the prior version of FRE 801(d)(2)(A), which
provided that “[a] statement is not hearsay if . . . [it] is
offered against a party and is . . . the party’s own statement,
in either an individual or a representative capacity,” 2
McCormick on Evidence, supra, app. A, at 682. The first
problem with the Jordans’ argument is that the current
version of FRE 801(d)(2)(A) does not employ the term
“own,” and although the prior version applied to the
Jordans’ trial, the 2011 amendments were not intended to
alter substance, so the word “own” cannot have the effect
the Jordans claim it does. Fed. R. Evid. 801 advisory com-
mittee’s note. The second problem is that the Jordans’
argument flows from the faulty premise that Ted’s state-
ments are the same as Betty’s. They are not. The truth
of the matter asserted by Betty is that the accident was
her fault, but the truth of the matter asserted by Ted is
that Betty said the accident was her fault. (Had Ted said
the accident was Betty’s fault, the statement would
No. 11-2134 11
still be an admission even though Ted had no personal
knowledge.) It is difficult to see how Ted’s statement is
not his own when its substance differs from Betty’s state-
ments. (The parties do not suggest that this case in-
volves adoptive admissions under FRE 801(d)(2)(B).)
Our independent research has turned up only one
case that arguably supports the Jordans’ position. In
Mahlandt v. Wild Canid Survival & Research Center, Inc.,
588 F.2d 626, 629 (8th Cir. 1978), one of the defendants
taped a note to his boss’s office door indicating that one
of the canid center’s wolves had bitten a child. The
Eighth Circuit held that the note was not hearsay
and was admissible against the defendant under Rule
801(d)(2)(A), remarking that “[i]t was his own state-
ment, and as such was clearly different from the reported
statement of another. Example, ‘I was told that . . . .’ ” Id.
at 630 (emphasis added) (ellipsis in original). While at
first blush this case appears helpful to the Jordans,
closer analysis reveals otherwise. Mahlandt cited Cedeck v.
Hamiltonian Federal Savings & Loan Ass’n, 551 F.2d
1136, 1138 (8th Cir. 1977), in which the court applied
FRE 805 to hold that the part of the party’s “statement
which contains a reiteration of what someone told him
is not admissible as an admission by a party-opponent
since the author of the statement is unknown.” Several
other courts have followed Cedek and have applied
FRE 805 to party admissions to hold that an admission
repeating another’s statement is admissible only if the other
person’s statement is itself an admission or falls within an
exception to the hearsay rule. See, e.g., Vazquez v. Lopez-
Rosario, 134 F.3d 28, 34 (1st Cir. 1998) (“unattributed
12 No. 11-2134
statements repeated by party-opponents cannot
be admissible”); Carden v. Westinghouse Electric Corp.,
850 F.2d 996, 1002 (3d Cir. 1988) (excluding unattributed
hearsay repeated by party-opponent). Here, however, the
author of the reported statement (Betty) is known and
her statement is itself a party admission. Thus, assuming
without deciding that these cases properly applied
FRE 805 (notwithstanding the fact that personal knowl-
edge is not required for admissions), they do not
furnish support for the Jordans because the statements
reported by Ted (i.e., Betty’s statements) are not barred
by the hearsay rule; in point of fact, these cases actually
support the district court’s decision to admit
Ted’s statements.
It is true that there is not an overwhelming body of
case law supporting the defendants’ position, but there are
some cases. See, e.g., Yohay v. City of Alexandria Emps. Credit
Union, Inc., 827 F.2d 967, 970 (4th Cir. 1987) (“that [A]
testified that [B] had told [A] what [C] had said provides no
basis for exclusion,” where both the statement from C to B
and the statement from B to A constituted admis-
sions under FRE 801(d)(2)(D)). Indeed, it appears that
this court already rejected the basic premise of the
Jordans’ argument in United States v. Hubbard, 22 F.3d
1410 (7th Cir. 1994). In that case, the government sub-
mitted into evidence taped recordings of Anderson’s
phone conversations with Hubbard, which had occurred
after Anderson had been arrested and was in police
custody. The court found that Anderson’s statements
were voluntary and that they were nonhearsay admis-
sions of a party-opponent under FRE 801(d)(2)(A). Id.
No. 11-2134 13
at 1417. Anderson contended that FRE 801(d)(2)(A)
was inapplicable because it applies only to a party’s “own
statement,” and his statements had been “made at the
bequest of the police and were, therefore, not his own,” but
the court rejected this argument, explaining that it was
simply another attempt to challenge the voluntariness
of his statements. Id. at 1417 n.2.
The Sixth Circuit has also rejected an argument similar
to that pressed by the Jordans. In Jewell v. CSX Transporta-
tion, Inc., 135 F.3d 361, 362-63 (6th Cir. 1998), a husband,
a wife, and their six-year-old daughter Brittney were in
a pickup truck that collided with a train; the mother
and Brittney sued CSX for negligence (the husband
was killed in the accident). At trial, CSX introduced
testimony from multiple witnesses indicating that Brittney
had told them that her parents had been arguing immedi-
ately before the collision and that, when she told them
a train was coming, they told her to be quiet. Plaintiffs
offered evidence that Brittney had suffered brain damage,
had no memory of the accident, and likely had overheard
conversations among family members speculating that
the accident had been the result of the parents’ arguing.
On appeal, plaintiffs contended that Brittney’s statements
should not have been admitted on the ground that
they were not made in her “individual” capacity because
she had no “independent” recollection of the accident,
on account of her brain injuries. The court rejected this
argument, reasoning that plaintiffs “have confused the
terms ‘independent’ and ‘individual.’ ‘Independent’ and
‘individual’ are not synonymous. Brittney was the source
of the statements. She made the statements in her indi-
14 No. 11-2134
vidual capacity, whether or not she had an independent
recollection of the matters she spoke about.” Id. at 365.
Similarly, in this case, Ted’s statements were made in
his individual capacity.
Ted’s statements qualify as statements by a party-oppo-
nent under FRE 801(d)(2)(A). (Given our resolution
of that issue, we do not address the defendants’ alterna-
tive theory that Ted’s statements qualify as excited utter-
ances under FRE 803(2).) It is undisputed that Ted is a
party and that his alleged statements were offered
against him. It is also clear that Ted “made” the state-
ments—i.e., they were spoken by him. Ted had the op-
portunity at trial to deny that he made those statements,
an opportunity of which he availed himself, and it
was within the jury’s province to determine whether
Ted did or did not make them.
So now we have enough information to address the
Jordans’ challenges to Trooper Litt’s trial testimony, in
which the following exchange between defense counsel
and Trooper Litt occurred:
Q: What did [Ted] say?
A: He stated that while she was on scene, he asked
what happened; and she stated, “I’m sorry. I’m
sorry. It’s not the trucker’s fault. It was mine.”
....
Q: Did [Binns] tell you anything relative to what
[Betty] had said?
A: He actually gave me the exact same state-
ment almost verbatim. It was the same thing.
No. 11-2134 15
“I’m sorry, I’m sorry. It wasn’t the trucker’s
fault. It was mine.”
The defendants contend that the Jordans forfeited any
claims of error regarding Trooper Litt’s testimony by
failing to assert a contemporaneous objection, e.g., Griffin
v. Foley, 542 F.3d 209, 218-19 (7th Cir. 2008), and they
argue that this is not an exceptional case warranting
relief under the doctrine of plain error, see Jackson v.
Parker, 627 F.3d 634, 640 (7th Cir. 2010). The Jordans
respond that they did not need to object because they
had done so earlier that day and their objections had
been definitively overruled. See Fed. R. Evid. 103(b);
Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) (en banc).
Although we doubt that the Jordans properly preserved
these claims of error, we will proceed as if they did be-
cause it is inconsequential to the outcome of this appeal.
The trial court did not abuse its discretion in
allowing Trooper Litt to testify about what Ted said
that Betty had said. Neither Betty’s statement nor Ted’s
statement reporting Betty’s statement constitutes hear-
say, and the Jordans do not claim that the testimony
should have been excluded on other grounds. But the
trial court abused its discretion in allowing Trooper Litt
to testify about what Binns said that Betty had said be-
cause, while Betty’s statement was not hearsay, Binns’s
statement was inadmissible hearsay (the defendants
do not argue otherwise).
This brings us to the Crash Report. In that report,
Trooper Litt recorded the general “who, what, when,
16 No. 11-2134
where” observations customary for such reports. He also
provided a narrative in which he documented state-
ments from both Binns and Ted (he was unable to
interview Betty, who had already been rushed to the
hospital) and offered an opinion, based on what he had
observed and heard, as to the cause of the accident. Prior
to trial, the district court granted the Jordans’ motion
to exclude as untrustworthy Trooper Litt’s opinions as
to the cause of the accident; it reasoned that, although
the investigation was timely and unbiased, Trooper Litt
had been investigating accidents for only one year and
had not conducted an accident reconstruction at the
scene. See Fed. R. Evid. 803(8); Beech Aircraft Corp. v.
Rainey, 488 U.S. 153, 167 & n.11 (1988). Accordingly, the
defendants redacted the portion of the Crash Report’s
narrative containing Trooper Litt’s opinion and retained
the remainder of the narrative, including the following
two statements:
• D2 [Binns] stated that when he got to D1
[Betty] she had injuries to both her legs and
D1 was stating, “I am sorry, I am sorry, it
was not the trucker’s fault, it was mine.”
• D1’s husband [Ted] also stated that D1 said,
“I am sorry, I am sorry, it was not the
trucker’s fault, it was mine.”
The district court subsequently rejected the Jordans’
contention that the defendants had violated the
previous order by not redacting the entire narrative.
These statements, of course, are essentially the same
statements elicited from Trooper Litt during his trial
No. 11-2134 17
testimony, but because they were written into the
Crash Report, they are out-of-court statements representing
a third level of potential hearsay. The Jordans maintain
that the statements, like Trooper Litt’s opinion as to the
cause of the accident, should have been excluded. The
defendants, on the other hand, contend that they were
properly admitted under FRE 803(8), which removes the
hearsay bar for certain records and statements of public
offices, e.g., United States v. Blackburn, 992 F.2d 666, 671 (7th
Cir. 1993).
The public-records exception is justified on the assump-
tion that public officials will perform their duties
properly and without bias. See Fed. R. Evid. 803(8)
advisory committee’s note; United States v. De La Cruz,
469 F.3d 1064, 1069 (7th Cir. 2006). Three categories of
public records are covered by the exception, Fed. R. Evid.
803(8)(A)(i)-(iii) (formerly FRE 803(8)(A)–(C), respectively),
and though there are important differences among
the three, many public records fall into more than one
category. See Mueller et al., Evidence Practice Under the Rules,
supra, § 8.49, at 1008. The first category consists of records
that set out a public office’s activities. Fed. R. Evid.
803(8)(A)(i); see, e.g., Chesapeake & Delaware Canal Co. v.
United States, 250 U.S. 123, 128-29 (1919) (Treasury records);
United States v. Lechuga, 975 F.2d 397, 399 (7th Cir. 1992)
(court records). The second category encompasses rec-
ords that set out “a matter observed while under a
legal duty to report,” though there is an exception to
the exception in the context of criminal cases for
matters observed by law-enforcement personnel. Fed.
R. Evid. 803(8)(A)(ii); see, e.g., United States v. Meyer,
18 No. 11-2134
113 F.2d 387, 397-98 (7th Cir. 1940) (map prepared by
government engineer based on data compiled from
workers under his supervision). The third category is
comprised of records setting forth “factual findings from
a legally authorized investigation” (though in criminal
cases they may be used only against the government),
Fed. R. Evid. 803(8)(A)(iii), which includes evaluative
reports containing opinions and conclusions. See Beech
Aircraft Corp., 488 U.S. at 166-70; Young v. James Green
Mgmt., Inc., 327 F.3d 616, 624 (7th Cir. 2003) (administra-
tive findings concerning discrimination claims). Records
falling into one of these categories are presumptively
admissible but may be excluded, in the court’s discretion,
if the party opposing admission establishes that the cir-
cumstances indicate a lack of trustworthiness. Fed. R.
Evid. 803(8)(B); see also United States v. Romo, 914 F.2d
889, 896 (7th Cir. 1990).
As explained above, the defendants have failed to
identify a hearsay exception applicable to Binns’s state-
ment to Trooper Litt (and Binns’s statement to Niles)
and have essentially conceded that admission of
Trooper Litt’s testimony regarding that statement (as
well as Niles’s testimony concerning what Binns said)
was error. One might expect them to concede similarly
that Binns’s statement as recorded in the Crash Report
should have been excluded because, under FRE 805,
each layer of hearsay must be admissible on an independ-
ent basis. But they do not. Rather, relying on In re Oil
Spill by the Amoco Cadiz, 954 F.2d 1279, 1304-08 (7th
Cir. 1992) (per curiam), which held that expense reports
of French communes were admissible as public records,
No. 11-2134 19
the defendants contend that FRE 803(8) is a multi-
level exception that covers all hearsay contained in a
public record and that the report can be excluded only
if the party opposing admission sufficiently establishes
that the report is untrustworthy. The defendants
misread that decision.
Amoco Cadiz merely acknowledges the reality that in-
formation may be passed among multiple public
officials before being recorded in a document offered
at trial, and it holds that the record will not be ex-
cluded merely because its author does not have first-
hand knowledge of the reported matters. Id. at 1308;
Mueller et al., Evidence Practice Under the Rules, supra, § 8.49,
at 1008; cf. Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300,
1309-10 (5th Cir. 1991) (“[M]any government reports, as
with many expert witnesses, have to rely in part on
hearsay evidence, and the reports are not gen-
erally excluded for this reason.”). It does not suggest
that FRE 803(8) removes the hearsay bar for a statement
from a nongovernmental third-party contained in a
police report. On the contrary, “[p]olice reports have
generally been excluded except to the extent to which
they incorporate firsthand observations of the officer.”
Fed. R. Evid. 803(8) advisory committee’s note. This is
because the presumption of reliability that serves as the
premise for the public-records exception does not attach
to third parties who themselves have no public duty to
report. See 4 C.B. Mueller & L.C. Kirkpatrick, Federal
Evidence, §§ 8.86, 8.88, at 770-71, 783-84 (3d ed. 2007).
Accordingly, third-party statements contained in a
police report do not become admissible for their truth
20 No. 11-2134
by virtue of their presence in a public record and instead
must have an independent basis for admissibility.
See United States v. Wyatt, 437 F.2d 1168, 1170 (7th Cir.
1971); see also, e.g., United States v. Taylor, 462 F.3d 1023,
1026 (8th Cir. 2006); United States v. Mackey, 117 F.3d 24, 28-
29 (1st Cir. 1997); Miller v. Field, 35 F.3d 1088, 1091-92 (6th
Cir. 1994); Parsons v. Honeywell, Inc., 929 F.2d 901, 907
(2d Cir. 1991); United States v. Snyder, 787 F.2d 1429, 1434
(10th Cir. 1986); United States v. De Peri, 778 F.2d 963, 976-
77 (3d Cir. 1985); United States v. Pazsint, 703 F.2d 420, 424-
25 (9th Cir. 1983); United States v. Smith, 521 F.2d 957, 964-65
(D.C. Cir. 1975). So, irrespective of whether the Crash
Report is a public record, Binns’s statement contained
therein should have been excluded.
Much of the Jordans’ argument that Ted’s state-
ment should have been excluded is premised on their
incorrect view that Ted’s statement does not qualify as a
statement by a party-opponent. Yet they also contend
that the Crash Report, as admitted into evidence, does
not qualify as a public record under FRE 803(A)(iii) be-
cause it does not contain “factual findings” and is not
trustworthy. The unredacted Crash Report authored
by Trooper Litt undoubtedly constituted an evaluative
report entitled to the presumption of trustworthiness.
See, e.g., Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 45-46
(1st Cir. 1991). The district court found that the Jordans
had satisfied their burden of showing that Trooper Litt’s
opinions and conclusions regarding the accident’s cause
were untrustworthy, and the defendants have not chal-
lenged that ruling. Accordingly, the court redacted
those portions of the Crash Report and allowed the re-
No. 11-2134 21
mainder into evidence, which is permitted, see, e.g.,
De La Cruz, 469 F.3d at 1069.
The Jordans essentially contend that redaction of those
conclusions took the Crash Report outside the scope of
the public-records exception for evaluative reports. We
disagree. It is true that “the requirement that reports
contain factual findings bars the admission of statements
not based on factual investigation.” Beech Aircraft Corp.,
488 U.S. at 169. And it has been held that a transcript of
a third party’s statement generally does not constitute a
“factual finding.” See United States v. Ortiz, 125 F.3d 630,
632 (8th Cir. 1997); United States v. D’Anjou, 16 F.3d 604,
610 (4th Cir. 1994). But those cases involved third-
party statements that met the definition of hearsay and
did not fall into any of the exceptions to the hearsay
rule, and the “reports” in several of the cases were
merely transcripts of interviews with third parties. In
contrast, the Crash Report was not merely a transcript;
along with Ted’s and Binns’s isolated statements, it con-
tained Trooper Litt’s on-scene observations and the conclu-
sions that he reached based on all of the evidence
he had collected. We do not think the exclusion of
Trooper Litt’s opinions and conclusions removes the
Crash Report from the scope of the exception for evalua-
tive reports. Even if the redacted Crash Report is not an
evaluative report, it is a record of matters observed by
Trooper Litt under a legal duty to report. Fed. R. Evid.
803(8)(A)(ii); Dortch v. Fowler, 588 F.3d 396, 403 (6th Cir.
2009); De Peri, 778 F.2d at 977. Either way, the Crash
Report is a public record entitled to the presumption
of trustworthiness.
22 No. 11-2134
The Jordans argue that the Crash Report was untrust-
worthy seemingly for two reasons, namely, that Ted’s
statement is hearsay and that Ted denies having made
the statement. Again, Ted’s statement is a party admis-
sion and therefore is not hearsay. That the exclusion
of party admissions from the definition of hearsay is
based on the nature of our adversarial system, rather
than any indicia of reliability, is no reason to find the
Crash Report or Ted’s statement therein to be untrust-
worthy. Cf. Murrey v. United States, 73 F.3d 1448,
1455 (7th Cir. 1996) (“The fact of admission is a badge
of reliability sufficient to overcome the hearsay objection
to out-of-court statements offered for their truth.
People usually don’t make damaging admissions
unless they are true.”). There is absolutely no indication
that Trooper Litt was biased—indeed, the district court
found otherwise. Furthermore, Ted’s denial of having
made the statement goes to the credibility of the evidence,
not its admissibility. See Moss, 933 F.2d at 1306-08. The
Jordans have not met their burden of showing that
Trooper Litt used untrustworthy methods in authoring
the unredacted portions of the Crash Report. Thus, the
district court did not abuse its discretion in admitting
the portion of the Crash Report recording Ted’s statement
reciting what Betty had said: neither Betty’s nor Ted’s
statements are hearsay, and the Crash Report itself is
an admissible public record. See Clark v. Clabaugh, 20
F.3d 1290, 1294-95 (3d Cir. 1994) (no error in admitting
state police report containing party admissions); Baker
v. Elcona Homes Corp., 588 F.2d 551, 559 (6th Cir. 1978)
(no error in admitting police report containing witness’s
No. 11-2134 23
nonhearsay prior consistent statements under FRE
801(d)(1)(B)); cf. Onujiogu v. United States, 817 F.2d 3, 6
(1st Cir. 1987) (no error in admitting medical record
containing party admissions).
The Jordans also claim that the district court erred in
allowing defense counsel to use the Crash Report as
a demonstrative aid during opening statements. This
argument is woefully underdeveloped, consisting mostly of
conclusory statements and lacking pertinent legal author-
ity, so it is waived. See, e.g., Clarett v. Roberts, 657 F.3d 664,
674 (7th Cir. 2011) (“We have repeatedly held that undevel-
oped arguments are considered waived.” (citations omit-
ted)). Waiver aside, we find no reversible error. In re-
sponding to the Jordans’ objection, the district court
explained that defense counsel “is not to argue. He
simply is going to say what his evidence will prove; and
if it doesn’t, then he does that at his peril.” This was a
correct statement of the law. E.g., Testa v. Vill. of Mundelein,
Ill., 89 F.3d 443, 446 (7th Cir. 1996). Additionally, the jury
was instructed that “the lawyers’ opening statements
and closing arguments to you are not evidence.” Providing
a curative instruction protects against any prejudice
resulting from a lawyer’s reference during opening state-
ments to evidence that ultimately is not admitted during
trial. Id.; cf. United States v. Catalfo, 64 F.3d 1070, 1081
(7th Cir. 1995). And the Jordans have offered no reason
for us to conclude that the jury did not follow its instruc-
tions.
The final piece of evidence at issue in this appeal is
the Adjuster’s Report. In preparing that report, Niles
24 No. 11-2134
consulted the Crash Report and included the following
statement in the Adjuster’s Report: “The officer noted
on the report that the claimant’s husband arrived at the
scene prior to the claimant driver being trans-
ported. Mr. Jordan told the officer his wife told him
the accident was her fault and not the truck driver’s.”
The Jordans maintain that the district court abused its
discretion in admitting the Adjuster’s Report as a busi-
ness record under FRE 803(6).
The business-records exception removes the hearsay
bar for records kept in the course of a regularly
conducted business activity if making the records is
a regular practice of that business activity, so long as
“neither the source of information nor the method
or circumstances of preparation indicate a lack of trust-
worthiness.” Fed. R. Evid. 803(6); see Coates v. Johnson &
Johnson, 756 F.2d 524, 549 (7th Cir. 1985); United States v.
Chappell, 698 F.2d 308, 311 (7th Cir. 1983). Such records
are presumed reliable because businesses depend on
them to conduct their own affairs, so there is little if any
incentive to be deceitful, and because the regularity
of creating such records leads to habits of accuracy. See
United States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993);
Fed. R. Evid. 803(6) advisory committee’s note; see also
Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004) (“Because
a business depends on the accuracy of its recordkeeping,
its records, although not sworn, are likely to be at least
reasonably accurate, or at least not contrived for the
purpose of making the business look better if it is sued.”).
It is well established, though, that documents prepared
in anticipation of litigation are not admissible under
No. 11-2134 25
FRE 803(6). See Palmer v. Hoffman, 318 U.S. 109, 113-14
(1943); see also Melendez-Diaz v. Massachusetts, 557 U.S.
305, 321 (2009); Lust, 383 F.3d at 588; Blackburn, 992 F.2d at
670; Bracey v. Herringa, 466 F.2d 702, 704-05 (7th Cir.
1972); United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957);
Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d
1068, 1091 (10th Cir. 2001); Scheerer v. Hardee’s Food Sys.,
Inc., 92 F.3d 702, 706-07 (8th Cir. 1996). Litigation generally
is not a regularly conducted business activity. AMPAT/
Midwest, Inc. v. Ill. Tool Works Inc., 896 F.2d 1035, 1045
(7th Cir. 1990); see Palmer, 318 U.S. at 114 (accident report
created by railroad employee after an accident was not a
business record because its “primary utility [was] in
litigating, not in railroading”); Timberlake Constr. Co. v. U.S.
Fid. & Guar. Co., 71 F.3d 335, 342 (10th Cir. 1995) (“It is
well-established that one who prepares a document in
anticipation of litigation is not acting in the regular course
of business.”). And documents prepared with an eye
toward litigation raise serious trustworthiness concerns
because there is a strong incentive to deceive (namely,
avoiding liability). See Hoffman v. Palmer, 129 F.2d 976, 991
(2d Cir. 1942) (Frank, J.) (documents prepared for litiga-
tion are “dripping with motivations to misrepresent”),
aff’d, 318 U.S. 109; Lust, 383 F.3d at 588; AMPAT/Midwest,
Inc., 896 F.2d at 1045; Bracey, 466 F.2d at 704-05; see also
Fed. R. Evid. 803(6) advisory committee’s note (“Absence
of routineness raises lack of motivation to be accurate.”); cf.
Leon v. Penn Cent. Co., 428 F.2d 528, 530 (7th Cir. 1970)
(accident report prepared in anticipation of litigation at de-
fendant’s behest was admissible where it was offered
26 No. 11-2134
by plaintiff); Sana v. Hawaiian Cruises, Ltd., 181 F.3d
1041, 1046 (9th Cir. 1999) (same).
Here, U.S. Xpress hired Niles to prepare the
Adjuster’s Report and then offered that report into evi-
dence at trial. It is difficult to see what purpose, other
than preparing for litigation, is served by an insurance
adjuster’s report created after an accident investiga-
tion. Had Binns or another employee of U.S. Xpress
created the report, then it would clearly not be a
business record under Palmer and its progeny because
U.S. Xpress’s business is trucking, not litigation. This
case, however, presents an added wrinkle because
Niles was not an employee of U.S. Xpress. Yet this is a
distinction without a difference. See Certain Underwriters
at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th
Cir. 2000) (“Litigants cannot evade the trustworthiness
requirement of Rule 803(6) by simply hiring an outside
party to investigate an accident and then arguing that
the report is a business record because the investigator
regularly prepares such reports as part of his business.
If that were the case, parties that face litigious situa-
tions could always hire such nonaffiliated firms and
investigators to prepare a report and then seek to admit
the document over hearsay objection.”); see also Paddack v.
Dave Christensen, Inc., 745 F.2d 1254, 1258-59 (9th Cir. 1984)
(audit performed by third-party accounting firm was
not a business record because it was commissioned
only after accounting problems were suspected). The
primary motive for commissioning reports such as the
Adjuster’s Report “is a better indicator of trustworthiness
than the form of the investigation or the identity of
No. 11-2134 27
the investigator,” Sinkovich, 232 F.3d at 205. Moreover, a
nonaffiliated investigator may have pecuniary motives
to skew a report in favor of the client that hired him, for
a damaging report may result in the client looking else-
where next time around.
We conclude that the district court abused its discre-
tion in admitting the Adjuster’s Report into evidence.
The Jordans carried their burden of showing that the
Adjuster’s Report was an untrustworthy document pre-
pared in anticipation of litigation. See Shelton v. Consumer
Prods. Safety Comm’n, 277 F.3d 998, 1010 (8th Cir. 2002)
(opponent of business record bears burden of demon-
strating untrustworthiness); Graef v. Chem. Leaman Corp.,
106 F.3d 112, 118 (5th Cir. 1997) (same).
To recap, the district court did not abuse its discretion
in admitting either Trooper Litt’s testimony regarding
what Ted told him that Betty had said or the statement
in the Crash Report reflecting the same; each layer
of potential hearsay either is not hearsay or qualifies
under an exception to the hearsay rule. (Also, the Jordans
have failed to show error in the district court’s allowing
defense counsel to use the Crash Report as a demonstra-
tive aid during opening statements.) In contrast, the
evidence (from Trooper Litt and Niles) regarding what
Binns said Betty or Ted had said should not have been
admitted because Binns’s out-of-court statements are
hearsay and the defendants have failed to identify
an applicable exception. Additionally, the Adjuster’s
Report should not have been admitted because it was
28 No. 11-2134
an untrustworthy litigation document. Our diagram 3
therefore looks like this:
Betty ö Ted ö Trooper Litt* ö Crash Report* ö Adjuster’s
Report*
801(d)(2)(A) 801(d)(2)(A) 803(8) X
Betty ö Binns* ö Trooper Litt* ö Crash Report*
801(d)(2)(A) X 803(8)
Betty ö Ted ö Binns* ö Niles*
801(d)(2)(A) 801(d)(2)(A) X
So the Jordans have established that the district court
made a few evidentiary errors, but they are not entitled
to a do-over if those errors were harmless, Whitehead
v. Bond, 680 F.3d 919, 930 (7th Cir. 2012). Rather, to
3
The asterisks identify the links in the chains of communica-
tion admitted into evidence. The “Xs” indicate inadmissible
hearsay. The asterisked links that are struck through represent
the pieces of evidence that should have been excluded, while
the asterisked links that are italicized represent the properly
admitted pieces of evidence.
No. 11-2134 29
obtain a new trial they must demonstrate that there is
a significant chance that at least one of the errors
affected their substantial rights, that is, that an error
likely had a substantial effect on the jury’s verdict and
the result was inconsistent with substantial justice. See
Fed. R. Civ. P. 61; Fed. R. Evid. 103(a); Whitehead, 680
F.3d at 930; Farfaras v. Citizens Bank & Trust of Chi., 433
F.3d 558, 564-65 (7th Cir. 2006). Harmless-error analysis
is case-specific and requires an examination of the er-
ror(s) in light of the entire record. See Kotteakos v.
United States, 328 U.S. 750, 762-65 (1946). While there is
no magic formula for determining if an error was harm-
less, useful considerations include (but are not limited
to) whether the erroneously admitted evidence went to
a central issue, whether it was cumulative of other properly
admitted evidence, and the strength of the properly
admitted evidence. See Lemons v. Skidmore, 985 F.2d 354,
359 (7th Cir. 1993); Lubanski, 929 F.2d at 46; cf. Jones v.
Basinger, 635 F.3d 1030, 1052 (7th Cir. 2011). Where there
are several errors, each of which is harmless in its own
right, a new trial may still be granted if the cumulative
effect of those otherwise harmless errors deprives a
litigant of a fair trial. See Christmas v. City of Chicago,
682 F.3d 632, 643 (7th Cir. 2012).
All six pieces of evidence at issue in this appeal were
offered to establish that Betty had claimed fault for
the accident. But this was not the only evidence con-
cerning Betty’s statements. At trial, Binns, who was
called to testify during the Jordans’ case-in-chief, testified
on examination by both plaintiffs’ counsel and defense
counsel that he had heard Betty say the accident was
30 No. 11-2134
her fault and that Ted had told him that Betty had told
Ted the accident was her fault. U.S. Xpress claims
manager Keri Bukovitz also testified, without objection,
that Binns had told her that Betty had said the accident
was her fault. And although the Jordans successfully
challenged one statement from Niles’s trial testimony,
they do not challenge Niles’s testimony that “[Ted] indi-
cated to me that, ‘Your truck driver did nothing wrong
and that my wife said that your truck driver—your driver
did nothing wrong.’” Therefore, our comprehensive
diagram 4 looks like this:
4
Again, the asterisks identify the links in the chains of commu-
nication admitted into evidence. The asterisked links that are
struck through represent the pieces of evidence that should
have been excluded, while the asterisked links that are
italicized represent the properly admitted (or unchallenged)
pieces of evidence.
No. 11-2134 31
Betty ö Ted ö Trooper Litt* ö Crash Report* ö Adjuster’s
Report*
Betty ö Binns* ö Trooper Litt* ö Crash Report*
Betty ö Ted ö Binns* ö Niles*
Betty ö Binns* ö Bukovitz*
Betty ö Ted ö Niles*
As a general rule, errors in admitting evidence that is
merely cumulative of properly admitted evidence are
harmless. Holmes v. Elgin, Joliet & Eastern Ry. Co., 18 F.3d
1393, 1397 (7th Cir. 1994); see, e.g., United States v. Kane,
944 F.2d 1406, 1412 n.2 (7th Cir. 1991) (erroneous admis-
sion of report harmless where report merely reiterated
agent’s testimony); Pincus v. Pabst Brewing Co., 893 F.2d
1544, 1554 (7th Cir. 1990) (even if admission of attorney’s
notes were error it was harmless because notes were
“so thoroughly cumulative of” other evidence “that
the error was not prejudicial”); cf. Mason v. S. Ill. Univ. at
Carbondale, 233 F.3d 1036, 1047-48 (7th Cir. 2000) (er-
roneous exclusion of cumulative evidence was harmless).
32 No. 11-2134
The Jordans argue, without citing any authority, that
the fact that the evidence was cumulative increases the
likelihood that the errors were prejudicial. Their argu-
ment sounds more like an argument that the evi-
dence should have been excluded as unduly cumulative
under FRE 403. Cf. United States v. McKibbins, 656 F.3d
707, 712-13 (7th Cir. 2011). The problem, however, is
that they did not seek to have the evidence excluded
on this ground in the trial court and, if they did, they
do not couch their arguments on appeal in terms of
FRE 403. They also point out that the district judge ac-
knowledged that some of the challenged evidence
was prejudicial, and they contend that this demon-
strates the errors were not harmless. But even under
FRE 403, the fact that evidence is even highly prejudicial
is not sufficient to warrant exclusion; the evidence
must be unfairly prejudicial in that it may induce the
jury to reach a verdict on an improper ground, such as
emotion, instead of the evidence presented. See, e.g.,
United States v. Zahursky, 580 F.3d 515, 525 (7th Cir. 2009).
Not only was the improperly admitted evidence cu-
mulative, but the other evidence presented at trial
strongly favored the defendants’ position. The jury
heard that Binns was an experienced truck driver who
traveled this stretch of I-70 approximately 3,000 times
over the previous ten years; that when driving through
a curve he compensates to ensure his trailer takes the
same path as the rear tires of his tractor; and that his
goal is to “hold the line” and maintain his lane position
through the curve. Betty, on the other hand, had not
obtained her motorcycle operator’s license until 2005;
No. 11-2134 33
was riding a very large motorcycle; was traveling in
the left-hand portion of the right lane as she traveled
through the curve; and would have had to merge into
the center lane soon after making it through the curve,
had the accident not occurred. There was also expert
testimony demonstrating that Binns could not have
been at fault based on principles of inertia, as well as
expert testimony that Betty had not been operating
her motorcycle in a reasonable manner. (The Jordans
also had an expert but they failed to include that evidence
in the record, so for purposes of appeal the defendants’
experts’ testimony is undisputed. Cf. Albrechtsen v. Bd.
of Regents of Univ. of Wis. Sys., 309 F.3d 433, 435-36 (7th
Cir. 2002).) Thus, even though the central issue at trial
was fault, the cumulative nature of the improperly ad-
mitted evidence coupled with this additional evidence
leads us to conclude that the improper evidence did
not have a substantial effect on the jury’s verdict.
The judgment is A FFIRMED.
4-4-13