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Prescott v. R&L Transfer, Inc.

United States District Court, W.D. Pennsylvania

June 12, 2015



KIM R. GIBSON, District Judge.

Pending before the Court in this matter are (1) Plaintiff's motion (ECF No. 120) to exclude hearsay conversations between Luke French and Clark Mead; (2) Plaintiff's motion (ECF No. 119) to exclude hearsay conversations between James Reese and Clark Mead; (3) Plaintiff's motion (ECF No. 122) to exclude unreliable hearsay testimony of Robert Thomas; (4) Plaintiff's motion (ECF No. 123) to exclude lay person opinion of Robert Thomas; (5) Plaintiff's motion (ECF No. 125) to exclude hearsay conversations between Linda Mead and Clark Mead; (6) Defendants' motion (ECF No. 136) to exclude hearsay statements from non-party witnesses; and (7) Defendants' motion (ECF No. 133) to preclude evidence or testimony of other incidents or acts.[1] The parties have filed a response to each of the pending motions. ( See ECF Nos. 158, 154, 149, 150, 155, 147, and 141). The motions have been fully briefed, and the Court held oral argument on March 19, 2015. Thus, the motions are ripe for disposition.

This case arises from personal injuries sustained by Plaintiff after the tractor-trailer that he was driving left the roadway and crashed in an embankment. Plaintiff alleges that Clark Mead, an employee of R&L who was driving a tractor-trailer, forced Plaintiff off the road, causing the accident. The Court previously set forth the relevant background of this case in its Memorandum Opinion on the parties' cross-motions for summary judgement. ( See ECF No. 170 at 2-6). Trial in this matter is currently scheduled to begin on September 8, 2015. The Court will separately address each of the pending motions listed above.

(1) Hearsay Conversation between French and Mead (ECF No. 120) 7

Plaintiff has filed a motion (ECF No. 120) to exclude testimony by Luke French regarding a cell phone conversation between French and Clark Mead as hearsay under Rule 801(c). French and Mead were both R&L truck drivers. Plaintiff has alleged that Mead forced him off the road, causing the accident. Mead passed away before he could be deposed. Plaintiff now seeks to introduce testimony by French regarding certain statements made by Mead following the accident during a phone conversation.

According to Plaintiff, a cell phone conversation took place between French and Mead approximately forty minutes after the accident. (ECF No. 120 at 2). Plaintiff asserts that Defendants will introduce French's testimony concerning what Mead told him during the phone conversation about the accident. Among the testimony that Defendants will introduce is the following testimony from French's deposition:

Q. What is it that Clark Mead tells you?
A. He told me - I asked him what happened. He told me that he was following the guy and he seen him go off the road. And he stopped, and him and the other drivers that had stopped went down and pulled the guy out of the - out of the burning truck.
Q. What did he tell you that he saw? What did he tell you?
A. That he pulled the guy out of the burning wreck and he was kind of upset - pretty upset. He was saying the guy's flesh was corning off in his hands as he was pulling on his arm and...
Q. Did Clark Mead say he actually went to the cab and helped pull the driver out?
A. Yes, he did.

(ECF No. 120-2 at 7-8). Plaintiff argues that any statements made by Mead to French during this phone conversation are "plainly outlandish hearsay" and that French's testimony is "clearly full of self-serving fabricated out-of-court statements" and not fit for the jury. (ECF No. 120 at 3, 5). In response, Defendants argue that Mead's statements to French during the phone conversation are admissible under the excited utterance exception to the hearsay rule, the present sense impression exception, and the residual exception. ( See ECF No. 158).

Hearsay is "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." Fed.R.Evid. 801(c). Hearsay evidence is generally inadmissible at trial unless otherwise provided by statute, the Federal Rules of Evidence, or other rules prescribed by the United States Supreme Court. Fed.R.Evid. 802.

Rule 803(1) provides an exception to the hearsay rule for a "present sense impression" when "[a] statement describing or explaining an event or condition [is] made while or immediately after the declarant perceived it." Fed.R.Evid. 803(1). Before hearsay evidence may be admitted as a present sense impression, three requirements must be met: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration and the event described must be contemporaneous. See United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998).

Likewise, Rule 803(2) provides an exception to the hearsay rule for an "excited utterance" when "[a] statement relating to a startling event or condition [was] made while the declarant was under the stress of excitement that it caused." Fed.R.Evid. 803(2). For a hearsay statement to qualify as an excited utterance, the party seeking to introduce the statement must show each of the following: (1) a startling event occurred, (2) a statement relating to the circumstances of the startling event was made, (3) the declarant making the statement must have had an opportunity to personally observe the events, and (4) the statement was made before the declarant had time to reflect and fabricate. Mitchell, 145 F.3d at 576 (citation omitted). "The rationale for the excited utterance exception lies in the notion that excitement suspends the declarant's powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable." United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001).

Here, the Court finds that Mead's statements to French constitute an excited utterance and are therefore admissible. First, the traffic accident-which involved a tractor-trailer crashing in an embankment and catching fire, severely burning the driver to the point that Mead observed that "the guy's flesh was corning off" - constitutes a startling occasion. Second, Mead made a statement to French about the startling occasion, detailing the traumatic injuries he observed and his role in helping the victim. Third, Mead was present at the accident scene, where he personally observed the startling occasion. Thus, the only disputed issue is whether Mead had the time to reflect and fabricate before he made his statement to French.

Plaintiff argues that Mead, by the time he initiated the phone call to French, had sufficient opportunity to reflect and fabricate a story. According to Plaintiff, nearly forty minutes elapsed between the time of the accident and Mead's phone call to French. Plaintiff's argument, however, unduly stretches the tirneline of events. As demonstrated by the exhibits in the record, the accident occurred at approximately 12:35 a.m. Luke French drove by the accident at approximately 12:45 a.m. and observed Mead's R&L truck parked on the side of the road. During the time that he was at the scene of the accident, Mead, along with two other truck drivers, pulled Plaintiff out of his burning truck and carried him away to safety to await medical personnel.[2] At some point in time, Mead left the scene of the accident in his truck. Mead then placed a phone call to French at 12:58 a.m. Thus, Plaintiff's assertion that more than 40 minutes elapsed between Mead's observation of the traumatic events that occurred and his phone call to French is without merit. The phone records clearly show that only 23 minutes passed between the time that the accident initially occurred and when Mead placed his call to French. Additionally, during that 23 minute window of time, Mead was involved to some extent in aiding the other truck drivers in moving Plaintiff to safety, at which time, Mead observed Plaintiff's traumatic injuries. The shortness of time between Mead's phone call to French and his observations of the accident and the Plaintiff's injuries falls within the time limitation imposed by Rule 803(2). See United States v. Mitchell, 145 F.3d 572, 577 (3d Cir. 1998) (noting that a 40 minute time span might be too long while a 15 to 20 minute time span would not be too long) (collecting cases).

Plaintiff also argues that, because Mead was able to drive away from the accident, he must have had time to reflect and fabricate. However, there is no indication in the record that Mead had time to reflect on what happened. Mead made a phone call to French almost immediately after leaving the scene of the accident. While the precise timing is not evident from the record, based on all of the evidence before the Court, it could not have been more than a few minutes. Furthermore, French testified in his deposition that Mead was upset, excited, and not his normal self during their cell phone conversation, thus evidencing that Mead was still under the stress and excitement of the startling occurrence during their conversation. See United States v. Brown, 254 F.3d 454, 460 (3d Cir. 2001) ("Fed. R. Evid. 803(2) does not require that, in order to be admissible, the statement be contemporaneous with the startling event, but rather only with the excitement caused by the event.").

French's testimony regarding Mead's statements made soon after the accident is admissible as Mead's statements constitute an excited utterance. ...

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