Leroy E. Brookover, Father and Guardian of Ronald Brookover v. Mary Hitchcock Memorial Hospital

BOWNES, Before BREYER and * Judges. BROWN Circuit BOWNES, Judge. Circuit Defendant-appellant Mary Hitchcock Me- Hospital (Hospital) morial appeals from a holding verdict it liable in this diversi- ty jurisdiction malpractice medical case. The case arose patient, from a fall (Ronald), Ronald Brookover in his room at Hospital. Plaintiff-appellee Leroy E. parent Brookover is the guardian Ronald Brookover. are two issues There appeal: the admission of statements un- 801(d)(2)(D); der Fed.R.Evid. and the ad- mission of statements under Fed.R.Evid. 804(b)(5).

I. The Facts The basic facts are uncontested. Ronald age 36 at the time of the accident. years When he was nine old he was in an injuries automobile accident and incurred resulting periodic epileptic seizures. As grew Ronald older seizures became more severe and more difficult to control. grand These seizures included mal seizures violently that caused Ronald convulse and lose consciousness and akinetic sei- drop zures that caused him to uncontroll- ably types to the floor. Both of seizures caused Ronald to fall on numerous occa- injuries sions and that included resulted * Circuit, Judge sitting by ignation. Senior of the Fifth des- as vica- have the statements admitted ankles, and var- teeth broken fractured rious admissions mentally re- is also ious bruises. Ronald 801(d)(2)(D) provides: tarded. is not if.... A statement improve methods to trying After various par- a statement is offered Th[e] condition, finally the Brookovers (D) by the a statement ty and is.... callosotomy, a sur- corpus try a decided to concerning a agent party’s or servant right left and which the gical procedure in scope agency the or matter within the of If separated. are brain hemispheres of the during made the existence employment, epileptic successful, operation reduces the relationship. of the procedure significantly. seizures discussion, district the After considerable partial the first is a phases: quires two testify plaintiff the to about court allowed dissection, completes the phase the second assigns Defendant er- the conversations.1 hemispheres. brain separation of the statements on to admission of these ror the in Hospital to Ronald was admitted proof that grounds: that there was no two phase first April of 1983 for were spoke plaintiff who to the nurses responded callosotomy. Ronald corpus and, Hospital; that the employees of the operation and of the phase to the first well knowledge of the nurses lacked Hospital in November returned they commented.2 events about operation phase. for the second Agency-Employee A. Waiver On November performed was Objection. Ronald, physi- who was not November restrained, go to of his bed out to cally got a admission to order for vicarious fell, breaking hip. the bathroom the under in evidence under be allowed had out of bed Ronald getting Prior 801(d)(2)(D) person making the Rule assistance, no call pressed his bell employee of agent an admission must be immediately. came one being it offered. party against whom is the nurses proof no here that There was brought was malpractice suit A medical employees plaintiff spoke with whom were by injuries suffered by plaintiff for If on that Hospital. objection of the the fall. At Ronald as result court, it been made the trial ground had issues: whether two basic there were pro upheld. Defendant’s been should have restraining in not negligent was notwithstanding, we have been testations getting from prevent him Ronald to objection in the record any find unable to response bed; and, Hospital’s whether the nurses prove on a failure based call for assistance to Ronald’s time Hospital. employees of the were unreasonably slow. de- objections forth We set to Plaintiff II. Nurses’ Statements fol- as objection was stated first tail. The lows: hospital should prove that the order predi- honor, in order to meet restraint, Your Mr. Brookover a bed have used 801(d)(2)(D),it cate, necessity under testify conversations sought about within relating to matter has to be with hospital after the fall he had at the Now particular agency. scope him that Ronald told The nurses nurses. I think that this, particular case this him prevent restrained should have been that this testimony will demonstrate sought bed. Plaintiff getting out of from you substance Q. tell could plaintiff the fol- And to answer court allowed 1. The conversations, nurses what those questions: lowing of those you. hospital said to you learned after had Q. fall and After Ron’s hospital had not been had fallen in he restrained ques- objected to the defendant 2. At trial you conversation have they grounds that that related to whether tions asked nurses feelings objection has not been leading. they opinions or This or not appeal. restrained? whether Ron should raised on Yes, A. sir. any personal nurse didn’t have party oppo- knowl- ambit of an admission edge place during of the events that nent. took previous evening and for that reason objection This was broader and am- more scope doesn’t fall within the of biguous the first two and it conceiva- 801(d)(2)(D). bly argued could that it covered both status and knowledge. Whatever No mention was made of the nurse’s status objection might foundation this have had Hospital.

relative to the question agency-employee, how- objection Defendant’s second was in ever, completely eroded defendant’s greater detail: objection final statement of his to the testi- Honor, position Your our is the same mony of the as to what the nurses position that we articulated to the Court had stated: before, this, which is in order for these Honor, Your I’ll stand my on comments statements to come in they must have regards particular with to this issue as it been made nurses who per- had some regards raised to Dorris Brook- knowledge regarding sonal the circum- over, because we believe that the factual regarding stances the fall. Mrs. Brook- regarding circumstances Mr. Brookover’s testimony over’s and I’m sure that Mr. testimony would be the same in that testimony Brookover’s will be the same these any personal nurses didn’t have the sense that these were statements knowledge place. of what took nurses, they all, if made were made at beyond peradventure record shows by nurses who were not employed during fought that defendant the of introduction evening personal shift and had no testimony of the nurses’ statements knowledge regarding the circumstances solely grounds the nurses surrounding Ron Brookover’s fall. personal lacked knowledge of the circum- Under those light circumstances of Indeed, stances of Ronald’s fall. based on the fact that these any nurses have don’t the wording objections of the the district knowledge personal they’re and that uni- court would have been warranted in con- dentifiable, that doesn’t make it admissi- cluding that defendant had conceded that ble. The rule of the case established employees. nurses were its by your evidentiary far Honor’s thus rul- consistently This circuit has followed ings type is that this of evidence is inad- 103(a)(1)3 strictures of Fed.R.Evid. by re they person- missible because don’t have quiring timely specific objection a to a knowledge. al ruling admitting evidence. See Allied We think the district court judge would Int’l, Inc. v. International Longshore take this objection statement as an based Ass’n, 32, (1st Cir.), 814 F.2d 39-40 cert. personal on lack of knowledge by the nurs- denied, 820, 484 U.S. 108 S.Ct. es. (1989)(“[i]t is axiomatic that the position: Defendant restated its object failure to at trial ... forecloses position light And our is in of the fact opportunity challenge admissibility they employed during weren’t appeal.”); of the on United States criticism, evening that they can’t because Abou-Saada, (1st Cir.), identified, does not fall within the cert. 477 U.S. 106 S.Ct. Felmly

ambit the rule that (1986) Brother (objection L.Ed.2d 572 that nei clearly hearsay. cites. It’s being It’s ther identifies the nor indicates offered for the truth of the matter specific grounds as- objection of the is serted and it inadequate); Edwards, does not within the Jay fall Inc. v. New 103(a)(1) (1) provides: Objection. ruling In case the is one evidence, admitting timely objection a mo- (a) ruling. may Effect of erroneous Error record, appears tion specific stating to strike predicated upon not be ruling a which admits objection, ground specific if the right or excludes evidence unless substantial context; ground apparent was not from the affected, party is by an admission an necting link between Distributor, Toyota England employee’s employee and denied, Cir.), (1st 814, 823 fact, we as the event. knowledge of on basis object below (failure to (1983) knowledge an discuss, infra, on review appellate pretermits prejudice requirement employee agent or Rail v. Consolidated Bryant ground); wording of Rule under Cir.1982) (fail (1st 217, 220 Corp., per- 801(d)(2)(D). Agency-employment below of evidence specific rule to raise ure sepa- entirely knowledge involve sonal 103(a)(1) makes by Fed.R.Evid. required as judge in Cur- And unlike rate factors. issue). resolve unnecessary to effect, equated defendant’s who, in rier review appellate urges Defendant 404(b) that of rule objection with rule Currier, States available judge jury, instructions in his Cir.1987) the fact despite out, well could here, pointed already not raised objection specific objections believed, basis objected Currier, defendant below. agen- made, Hospital conceded that the recording at tape of a playing the Rule. requirement cy-employment citing Fed.R.Evid. prejudice, basis objection if argued that the defendant appeal, On 403. employ- of of evidence on lack explicitly 404(b) Fed.R.Evid. violated admission filled the have ment, might well prove admitted tape was the because of director calling personnel the by lacuna argued government The character.” “bad introducing personnel the on Rule object failure defendant’s that therefore, defen- We, hold that records. his rais- foreclosed at 404(b) grounds agency-em- the objection to waived its dant disagreed, We appeal. on the issue ing pur- For the rule. of requirement ployee holding: are viewed nurses review the of our poses 404(b) usually, as 403 and Hospital. Fed.R.Evid. the of employees Fed.R.Evid. glove. in here, go hand Rule Knowledge and of B. Personal form evi particular 404(b) describes 801(d)(2)(D). prej the “unfair create might dence 403. Fed.R.Evid. anticipated under udice” proper to it was is whether issue The Currier, 821 States United what about plaintiff’s the admit Cir.1987); 52, 55-56 showing cf. without by nurses the told he was 984, 7 Saintil, 989 n. knowledge of the States personal they had 1012, denied, 472 U.S. Cir.), cert. (11 fall. of Ronald’s circumstances (1985). We 2712, S.Ct. words of with inquiry our We start court’s therefore, review the district will, is noth- there already noted Rule. As in evidence tape into admis- requiring ing in the Rule 404(b), even Fed.R.Evid. with accordance knowledge by personal on based sion be invoke this failed though appellant triggering the event the relator of Fed.R.Evid. under objecting when rule Advisory notes of statement. admissibility of the Review 403. Rules show Proposed Committee particularly is rules both re- knowledge personal of a the omission here, the district because justified intentional: quirement was by objection appellant’s responded is re- of trustworthiness guarantee No 404(b) its caution in quoting an admission. in case quired jury. instruction ary enjoyed admissions freedom searching Id. at demands technical from in some trustworthiness assurance proves an exception is the Currier circumstance, from and against-interest is evident As here. inapposite rule but opinion influences restrictive Hospital’s ob- supra, record, from firsthand requiring rule and rule focused statements the nurses’ jection appar- with the taken knowledge, when knowledge. Un- lack of their satisfaction ently prevalent 404(b) no con- there like rules suits, generous calls for surprisingly, treatment of Not the Second Circuit has admissibility. this avenue to Weinstein quoted followed his admoni tion gossip excluding about office in 801(d)(2)(D) as “a poused by Weinstein: “The validity [an] of dis- agent or servant concerning a matter pensing knowledge with firsthand in the within scope agency employ his or by agents case of admissions has been ment, during questioned existence of the vigorously by a leading text on relationship.” appellants Evidence, the Federal contend Rules of advocating System, Litton Inc. v. American requirement by insertion of such a con- Co., Tel. & Tel. 785, (2 struction. 700 F.2d proposal 816-17 has not met with denied, Cir.1983), cert. judicial acceptance.” (footnotes 1073, omitted). 464 U.S. 984, 104 (1984), E. S.Ct. McCormick on Cleary, 79 L.Ed.2d Evidence 220 re 264 § (3d quires 779 ed. author of the Supp.). 1984 and 1987 admission personal have knowledge, apparently Survival, Mahlandt v. Wild Canid meaning knowledge from non-hearsay etc., 626, (8th Cir.1978) 588 F.2d 630-631 sources. We do not read the Litton expressly rejected court the Weinstein opinion going as so far. The material position and held that there require was no Litton excluded in merely notes of Rule, ment under the “that the declarant employee interviews; opinion de personal knowledge have of the facts un scribes them as containing “multiple lev derlying the statement.” See also United els of hearsay” and refers to the record Ammar, States v. 238, (3rd 714 F.2d 254 ed material as “gossip,” citing 4 Wein- Cir.) denied, cert. 936, 464 U.S. 104 S.Ct. stein, 11801(d)(2), Evidence at 801-164 344, (1983), (finds 78 L.Ed.2d 311 it clear (1981). Here Matthews had obtained Advisory from the Committee Notes that knowledge questionable of the nature of personal knowledge requirement not a for the Mastropieri capacity fee his Rule); admissions under the MCI Commu general counsel assignment before his Co., nications v. American Tel. & Tel. 708 the BER. the Litton opinion 1081, denied, (7th Cir.), cert. does cite not the statement in the Adviso 891, 234, U.S. 104 S.Ct. 78 L.Ed.2d 226 ry Committee’s Notes. (1983). (report agents corporation admissible, citing to Mahlandt and McCor Corp., United States v. Southland Evidence). mick 1366, 4, n. knowledge apparently was (1985) Janowski’s S.Ct. itself, while found he the Sublease J.). (Friendly (at least, the district the file inspecting v.Co. Insurance Mutual In Union Life Hence, so). thought may have Cir.1986) Corp., Chrysler so about the complaint not much CSA’s of a letter admission discussed we knowledge, but source of Janowski’s hear to as objected employee which an drew from that he about the conclusion personal rest it did not say and because complaint, as we have that source. This pointing out knowledge. After of an form said, takes the appropriately hearsay but admission was not letter or Fed.R.Evid. objection based on 801(d)(2)(D), addressed we Rule also as we have 701—and Fed.R.Evid. knowledge objection: personal objections here were said, these latter inadmissibility on argues for CSA event, they would made, not opinion that Janowski’s ground unavailing. proved have knowledge.” “personal rest on not Advisory Committee in so argues note that

We Id. at 8-9. Defendant re of Evidence Rules per- recognized Federal holding “not we knowledge” a “personal to make found requirement, fused knowledge sonal “ad admissibility of to the prerequisite satisfied the of the case the facts 801(d)(2) & missions.” gives rise hearsay that multiple concern of (“No guarantee note advisory committee knowledge requirement.” personal the case required of trustworthiness doWe not 29-30. Brief at Appellant’s have [Ajdmissions an admission.... than delineate the no agree. did more We restric ... from enjoyed [freedom] ap- debate ongoing contours of rule and opinion influences tive knowledge re- plicability knowl first-hand requiring rule take a have to We did quirement. Nonetheless, courts some edge.”) we other because way position one requirement knowledge read have knowl- writer did the letter found that branch the vicarious into was com- he on which events edge of the Inc. v. Systems, 801(d)(2). Litton Rule menting. (2d Cir. T, AT & by the fact that impressed We are Communications, MCI 1983). But see knowl requirement there no 1143; T, Mah AT & Inc. v. Adviso Notes of Rule. The edge in the Re Survival Canid v. Wild landt strong indication are a ry Committee Inc., Center, 630-31 search knowingly and requirement a such Co., A.H. Robins In re Cir.1978); (8th law leads The case omitted. purposefully (D.Kan.1983). F.Supp. 723-25 Friendly’s Judge directions in both a re such imposing The authorities Systems has on Litton comment footnote lest however, concerned seem quirement, force. much for ad a vehicle serve consider we first deciding this case for exam hearsay, where mitting other Although nurses had. knowledge the what state declarant’s out-of-court ple, fell, Ronald when present not they were the statements simply reflects ment injured fallen he had they knew may people, other physically had not been he and that himself hear inadmissible amount themselves not dis- does Defendant in bed. restrained v. Southland States say. more be No-one would facts. pute these (2d n. 4 1376-77 Corp., than bed restraints knowledgeable about 825, 106 S.Ct. Cir.), a doctor. nurse, possibly except hospital (1985); 4 J. Weinstein per- did although nurses So Evidence Berger, Weinstein’s M.& all the circumstances knowledge of (“Gos sonal -227 801(d)(2)(D)[01], ¶ they fall, information surrounding merely be reliable not become sip does ac- hearsay, was have, based albeit did office rather in an it is heard cause training and their by virtue curate and however, source home.”). Here, experience they qualified were to comment Approximately eleven hours after Ron- fall, parents on whether or not a bed ald’s hospital restraints should arrived at the dealing previous night’s have been We are not unaware of the used. here events. learning After “gossip.” from the station nurse that There cannot be doubt fallen, Ronald had Brookovers went to nurses’ statements were admis- their son in his room and asked Hospital, sions the interest of the happened. him what had Hospi- Over the during agency-employment rela- objection, tal’s Mrs. tionship. Brookover testified as question plaintiff’s credi- was, follows: bility course, jury. for the MRS. BROOKOVER: We ran into the We hold that under the facts and circum- said, “Ron, room and we what knowledge by stances this case happened?” said, “Oh, world’s And he the nurses not necessary and the testi- Mother, said, I fell.” He “I needed to mony relating what go to the bathroom. I wanted to tin- nurses told him about the advisability of a kle.” properly bed restraint was admitted. ATTORNEY FELMLY: way Is that the he going describes to the bathroom? III. Ronald’s Statements to His Mother said, MRS. BROOKOVER: Yes. He “I considering After submitted memoranda on,” put the call bell light. the call argument, as well as oral the district court said, put He “I the call bell on and I ruled that statements made Ronald to waited and I waited and no one came. approximately his mother eleven hours af- again I waited put the call bell on ter his fall were admissible under the again two or three keep times.” He’d hearsay exception, “catch-all” punching it he said. “And no one 804(b)(5). appeal, On contends help out, came to me. And I called ’ that Ronald’s statements did not ‘help! Help me! and no one came.” requirements meet the exception said, “Mother, And he I fell.” and, therefore, should have been excluded. you ATTORNEY FELMLY: Did he tell managed how he to fall or how came explain order to this issue it must actually to be that he trying fell after placed noted, in context. already As there to use the call button? negligence presented two issues of MRS. BROOKOVER: He showed me jury. The first Hospi- was whether the got rails, through that he out negligent tal was in failing to restrain Ron- split rails. He was smaller than he is ald pertinent and is not evidentiary to this me, said, now. got He told he “I dispute. issue, negligence second rails, through these Mother. IAnd Hospital respond to Ronald’s call within my fell. I hit my leg.” head and I hit time, implicates reasonable this evidentia- said, And he “The nurse came in final- ry ruling. ly when I fell and she was about mad At the time of Ronald’s fall one of the at me. She bawled me out.” nurses, Hospital Kennedy, Nurse inwas Following testimony, Attorney this Felm- adjacent room. She testified that she ly showed Mrs. Brookover Nurse Kenne- thump against heard a loud the wall in dy’s notations, her, supra, and asked Ronald’s room immediately and left in- to through questions, a series of if the nota- vestigate. She discovered Ronald on the tions confirmed what Ronald had told her floor and asked him happened. what had morning. next Mrs. Brookover testi- Based on what Ronald told her and her fied that the two were consistent. observations, she made the follow- ing notation on Ronald’s clinical record: There testimony directly was additional pt [patient] “Found Apparently question on the Hospital’s whether the floor— crawled out trying get end of sponse tardy. was Mrs. Brookover testi- bed— BR help called for couple days but not fied that a after Ronald’s [bathroom]—had quick enough response.” fall: gives standard This hall, standard. my erroneous in the up came Kennedy] [Nurse court’s to the trial hall, discretion considerable standing in the I was and husband ruling should not Its room, determination. she said —she and by Ron’s and definite and we have ‘a “unless said, Mrs. disturbed “Mr. and she crying and a clear firm conviction just I couldn’t Brookover, sorry. I am so conclusion judgment error of patient. another I was with to Ron. get weighing the rele upon a reached based and I was so short-handed We’re ” Doe, United States factors.’ Ron. vant get I couldn’t patient and another Cir.1988), 488, him F.2d I heard was on and light The call - 1961, U.S. -, 109 S.Ct. him.” get to call, I couldn’t but Hy Barko (quoting, Page v. (1989) examination, ad- Kennedy, direct Nurse Cir.1982)). (5th draulics, to the Brookovers apologizing mitted telling them that the the resid- use of guidance ever on the denied General she had heard or that in the Sen- hearsay exceptions is found short-staffed ual examination, Attorney Report, S.Rep. On cross No. Judiciary call bell. Committee ate deposition in a reprinted in brought out Felmly Cong., 2d Sess. 93rd earlier, Kennedy stated Nurse year Cong. taken & Admin.News 1974 U.S.Code exactly what not remember exceptions will offer it, intention to proponent’s meet The exceptional circumstances. only in it, particulars and the to establish a does not intend committee address and including the name judges to admit trial license broad declarant. fall with do not hearsay statements in exceptions contained the other one of resid- admissibility under the ruling on A ex- 804(b). residual The and Rules 803 (Rules 803(24) and exceptions, ual ma- authorize not meant ceptions are clearly 804(b)(5))4, under the is reviewed 804(b)(5) only declarant applies if the 804(b)(5) te 803(24) lan- have identical and Rules 4. witness. as a unavailable them difference between guage. The jor judicial rule, letter, revisions for admitting the but found other including present exceptions. its Such reliability additional indicia of from its own major accomplished revisions are best by upheld examination of the record and legislative action. admission. Id. at 90-91. The court also ju- order to establish a well-defined stated that weight given to be to the risprudence, special facts and circum- evidence was a matter for the to de- which, stances judgment, the court’s cide. Id. at 90. indicates that the statement has a suffi- Here, judge explicitly trial did not ciently high degree of trustworthiness state reliability what indicia of and trust- necessity justify its admission worthiness he admitting relied on for Mrs. should be stated on the record ... testimony. contrary Brookover’s This was approval Id. at 7065-7066. Cited to the admonition in the Senate Committee Equitable deMars v. Soc’y Assurance Life notes and it would have helpful to us States, Cir. had he done so. On the other hand we 1979). know that the judge was the benefi- The challenged has not the una- ciary of both written memoranda and oral vailability Ronald as a witness. Nor has argument on the issue. We must assume any question been raised require- about the requirements he understood the prior ment of notice to the party adverse limitations of nothing the Rule. There is exception(s) that the will be invoked. We the Rule itself requires explicit find- assume, therefore, that it was met. The ings. Hospital’s main attack the admis- sion of Ronald’s by statements as related single dispositive No factor is on the his mother require- stems from the Rule’s issue of whether evidence should be admit ment that the “equivalent statements have ted exception. under the residual The dis guarantees circumstantial of trustworthi- judge trict must evaluate all of the factors ness” hearsay exceptions. to the other and make a determination. In this case the Hospital argues that because both Ronald judge made a careful decision after consid parties, his mother are interested be- ering the arguments presented by both cause Ronald had a motive to fabricate and course, sides. Of testimony events,5 prior night embellish the and be- would be the probative most hap what cause the contempo- lacked pened in his room. The judge district raneity event, with the Ronald’s statements seeing had the benefit of Mrs. Brookover do “equivalent not meet the trustworthi- testify, and credibility it was her more than requirement. ness” her addition, son’s that counted. The case law on this issue reflects that jury was credibility able to evaluate the equivalent determination of trustwor Mrs. Brookover’s and determine completely thiness is fact driven. In Fur weight given. it should be Bishop, (1st Cir.1979), tado v. 604 F.2d 80 strong, there is one appellant objected indeed to the introduction of a irrefutable, almost indicia of reliability. letter written attorney who had died Kennedy, notes of Nurse time of trial. Id. at which were 90. The trial judge clearly pursuant admitted the letter admissible and made within a short exception residual time after Ronald’s fall basis that he corroborated what knew the deceased to be an man. Mrs. honorable Brookover testified Ronald told her questioned This judge’s reason eleven hours after the fall.6 Nurse Kenne- Appellant dissenting contends that because Ronald func- 6. Our brother stresses that the eleven year passage tioned at a twelve hour old level and of time between Ronald’s fall and had been his statement to his mother means that get told on numerous occasions not to out of contemporaneous. statements were not Al- help, likely bed without it was that he would though length the of time not is so short as to story up make a so he would not be blamed for reliability, necessarily insure its it does not indi- happened. what inaccuracy. cate elapsed The amount of time that just many one of factors that the Cir.1989); (1st v. deMars the on found Ronald that she dy wrote U.S., 610 Soc. Equitable of bed Assurance out crawled floor, apparently he of Life Cir.1979). Error is 55, 61-62 significantly, F.2d the bathroom get to to enough affect the substan- quick if it does not help not a harmless “had called relevant 61. Considering parties. all the Fed.R.Civ.P. rights of the tial response." a “we have was whether say that in this case cannot issue primary we factors that the court person conviction Ronald, mentally firm retarded with definite in admit- judgment” falls, of clear error have been made a should history of serious testimony. United in operation Brookover’s ting undergoing an Mrs. after restrained at 491.7 Doe, Only v. if the States his brain was halved. which not that Ronald should jury determined log makes a dissenting brother Our they have even restrained would have been argument that Mrs. compelling ical and hospital's slow of the issue the considered not should Brookover’s help. request for Ronald’s response time to 804(b)(5), under admitted been evidence and credible was extensive There ease the he would send this basis and on se- showed the issue that restraint however, think, We trial. a new back for condition, history of his verity of Ronald’s the real fact that the overlooks that he falls, hospital’s the injuries from falls and re not the was this case in negligence and even the using restraints practice hospi the call but bell sponse on dur- Ronald use of restraints hospital’s this men on put restraints tal’s failure this wealth Given ing earlier visit. the in the just had boy who tally retarded easily have evidence, found the could his cut brain operation that hospital for negligent in not was hospital the judgment, the In our two. in straining Ronald. in part of the negligence the sowas on Ronald put restraints failing to AFFIRMED. eradicates completely overwhelming it hospital was question whether BROWN, Circuit Senior R. JOHN to Ronald’s respond failing to in negligent concurring. Judge, opin In our alacrity. reasonable call with re-With qualification. I without concur with of bed gotten out ion, if Ronald testimony Ronald’s mother spect to the and fall at all button pressing the call Judge I would add happened, what about not We do en, hospital would be liable. things. powerful statements Bownes' in this plaintiffs penalize the fair to think it may have district court requires case because F.R.Civ.P. first subsidiary evidence on admitting Court) “disregard erred in (and this the trial clearly establishes The evidence issue. not does affect ... which error or defect if he had not have fallen would parties.” that Ronald rights of substantial was Lack of restraints been restrained. congressional this is effect, sole cause and in primary, process. approval the rule from direction Rather, the accident. it is and 2074. U.S.C. §§ Congress that command the direct be deemed Thus, if even its court “... any appeal hearing of as a whole error, record our review regard without ... give judgment shall error it was that if there was us convinces not affect do Ladd, or defects 877 errors v. States See United harmless. eight months although more written admitting the mitted judge considered district testimony. addition, at incident). the conversation have admitted after Courts Brookovers made a much exception time that were first this issue fall. than the one after speak the incident longer after with Ronald time able See, v. Van e.g., United States here. issue Luf Cir.1982) (8th kins, (up ato week F.2d 1189 Indeed, as to notations light nurse's hearsay state event passed between the to under- happened, is hard accident how witness) (cited favor United ment to of- why Brookover’s Mrs. stand Cir.1986); (7th Vretta, 790 F.2d States fered. (affidavit ad- Bishop, F.2d at 91 Furtado (that rights substantial of the parties.” response 28 obvious quick was not fall), or, U.S.C. enough prevent if the for- § mer, whether the evaluation is her own or issue nurses’ The of timeliness of re- corroborating Ronald’s. No other sure, was, sponses to Ronald’s nom- introduced; was ever contrary, inally in real the case. But the contro- Nurse Call testified that she arrived in versy patient was whether a with Ronald’s Ronald’s room “between 30 and sec- history moderately should have been re- hearing go onds” after “Ron’s bell off” and What mother said Ron- strained. Kennedy already found Nurse there. problem. ald said did not touch that any special Where in is there could, did, “guaran- this ignore probably and tee” of “trustworthiness” for the relevant inconsequential question whether nurs- portion statement, of Ronald’s duty jumped enough. es on fast the asser- significant tion of a lapse of time between BREYER, Judge (dissenting). Circuit his signalling help for and the nurses’ sponse? order to admit into evidence the hear- say statement of an unavailable declarant There special “guarantee” no 804(b)(5)’s residual hear- “trustworthiness” in the fact that Ronald say exception, a court must find “circum- may is retarded. He not have capable guarantees” stantial of the statement’s understanding (“I how his statement “equivalent” “trustworthiness” that are waited”) might waited and be used to show those found in the exceptions Rule’s other hospital’s liability, but he perfectly (1) testimony subject former to some- capable of understanding that he was not examination, (2) what similar cross a state- supposed get own, out of bed on his and made impending ment under belief of he would capable anyone as seem else of death, (3) interest, a statement and exaggerating the wait to disown his own (4) family a statement of histo- York, fault. United States v. Cf. ry. 804(b)(l-4). Fed.R.Evid 4 J. Wein- (7th Cir.1988) (excluding state- Berger, M. stein & Weinstein’s Evidence year-old ments of fourteen witness partly ¶ 804(b)(5)[01], (1988) (“[T]he because he “had a misrepresent motive to courts admitted hearsay statements (“critical” truth”); id. at 225 factor pursuant 804(b)(5) to Rule when a trust- analysis trustworthiness “whether spirit worthiness within the of the Rule 804 hearsay lie”) had a declarant motive to exceptions demonstrated.”) class has been (internal quotation omitted); marks Weinstein’s [hereinafter Evidence ]. Fern, (3d States v. Cir. Where can the guarantees court find such 1985)(same). can “guaran- Nor one find a respect statements, to Ronald’s tee” timing of “trustworthiness” in the day to his mother the following his acci- statement, it, for he made not contem- dent, “put on,” that he the call bell “waited accident, but, poraneous rather, with the waited,” “put and ... the call bell on morning. the next United States Cf. again two or three times” before he left Vretta, (7th Cir.1986) the bed and fell? (“[Cjlose proximity in time between majority [describing finds such a guarantee in event] support lends Kennedy wrote, notes that Nurse itself state- [event] trustworthiness.”) And, ment’s I say, do admit- F.2d at 286. Cases peachable.” essence, “residual” is, to read the It 804(b)(5)involve hearsay Rule ting allowing the district exception hearsay of reliabil- greater guarantees it hearsay substantially for which admit court to reading here. Wein- present seems See ity need. Such than those special finds a McCall, 804(b)(5)[01], at 804-173 v. Evidence wrong, see United States stein’s If J., concurring) (Widener, cases). 1331, 1342 (collecting n. 3 weak, reliability is (where evidence of majority less how the I understand still unavailability ... is an insufficient “[m]ere was admission of the say the statement can admissibility of justify [hear- reason it admitted district court “harmless.” The statements”), contrary to the for it is say] counsel told of need. Plaintiff’s because Indeed, the House Congress. intent of court, create a more severe “I can’t per- initially voted not to Representatives plaintiff’s critical to the need.... It’s precisely hearsay exception mit a residual only other evidence Virtually case.” House a result. See it such because feared jury convince the that plaintiff had to Comm, Federal Judiciary, Report on Ron- long waited too answer Evidence, H.R.Rep. No. 93d Rules of Kennedy’s ald’s call consisted Nurse (1973), 1974 U.S.Code Cong., 1st Sess. Kennedy and Call Nurse Nurse notes. The House Cong. Admin.News & notes. With- implication of those futed the the Sen- opposition its when withdrew might well testimony, jury Ronald’s exception scope of ate narrowed the nurses. have believed that it “intended courts and instructed course, argued plaintiff Of hearsay exceptions will the residual Ron- hospital’s not to restrain decision exceptional rarely, only in very used testi- But Call negligent. was Nurse ald Comm, circumstances,” Judi- Senate pa- the “sort of “wasn’t” fied that Ronald Evidence, on Federal Rules ciary, Report restraints,” and that that required tient Cong., 2d Sess. 18-20 93d S.Rep. No. “to restrain any reason “there wasn’t” Admin. & (1974), Cong. 1974 U.S.Code wit- Other evening. the relevant him” on admon- Committee The Senate News 7066. ju-A to the same effect. testified nesses 804(b)(5) “exercise applying ished courts ror, about whether uncertain care, and caution no less reflection used re- hospital should have proved law estab- the common did under courts Ron- straints, might well turned exceptions now-recognized lishing the and wait- that he “waited statement ald's hearsay rule.” Id. least, they didn’t “At if ed,” thought, Failure Cong. Admin.News 7066. & Code responded him, they should have restrain identify specific here to by the lower know can the court quicker.” How the “trustworthiness” “guarantees” of them) not reason (or some of jurors suggests that the ad- statements Ronald’s fair say “with How can way? in this pre- mission these not substan- jury “was assurance” cau- “reflection and ceded sufficient unlawfully ad- by Ronald’s swayed” tially tion.” Louis v. Vincent mitted statement? admitting find no case I can Cir.1989) Co., & Marx present like those under circumstances error). for harmless (describing test Furtado, involved supra, which here. Evi- Rules of Federal I believe made un Since lawyer's out-of-court not permit do oath, Nor do Unit dence certainly does not. der their admis- (8th and that Carlson, hearsay statements F.2d 1346 ed States harmless, dissent. I must Murphy, was not Cir.1976) sion and United States Cir.1982), (4th other 696 F.2d 282 Mur by appellee. Carlson cited cases grand

phy both involved

which, Murphy, in the case of at least testi “strongly

supported by corroborative unim- of which was proof, some

mony and notes Commentators and courts differ on recounting employees what various personal knowledge whether prerequi- is a wrongdoing stated about part site for a vicarious admission under the employees. other Systems, Litton Inc. v. Berger, Rule. In 4 Weinstein J. & M. Co., American Tel. & Tel. Evidence Weinstein’s 801(d)(2)(D)[01] 1T (2d Cir.1983), 816-817 (1988 Supp.1989), it is stated: (1984). S.Ct. 79 L.Ed.2d 220 801(d)(2)(D)departs Rule from the Uni- Corp., v. Xomox Mitroff form Rule in not containing express (6th Cir.1986), the court cited to Litton requirement knowledge on Systems in excluding by em part of the declarant of the facts ployees proper because a foundation had underlying his statement. point- As was not been showing laid that the statements (c) ed out in connection with subdivision scope employment. within the But ¶ 801(d)(2)(C)[01], supra, such a re- Systems Litton qualified of a foot quirement should be read into this rule note a later quoting: case that bears as mandated Rules 805 and 403. Gos- sip merely does not become reliable Although be- necessary is not to decide cause it is point, heard an office rather we would not wish to be under home, (footnotes omitted). stood as foreclosing the Government’s argument that the Matthews notes were Although explicitly taking directly hearsay rule, outside the and thus admis contrary position, McCormick on Evidence Southland, sible under FRE has this comment on the approach es-

Notes

in Notes she of Commit- also located 7065-66, told the Brookovers. No. Judiciary, Report she Senate tee on 93-1277, 803. The appended Fed.R.Evid. 804(b)(5) provides: initially that the noted Judiciary Committee (b) following Hearsay exceptions. The completely re- of the Rules House version rule if hearsay by the are not excluded hearsay exceptions, jected the residual aas witness: is the declarant unavailable 804(b)(5), 'too 803(24) “injecting (5) exceptions. A statement Other uncertainty’ into the law of much any of the fore- by covered specifically Admin.News Cong. & 1974 U.S.Code ...” having equivalent exceptions but going how- recognized, The Committee at 7065. of trustworthi- guarantees circumstantial ever, that: (A) the ness, determines if the court circum- exceptional are certain there ... of a as evidence offered is statement which is found where evidence stances fact; (B) more is material trust- guarantees of by a court to have which it point for probative exceeding to or equivalent worthiness any other evidence offered presently guarantees reflected rea- procure through proponent can properly be exceptions ... could (c) pur- efforts; general listed sonable ... interests of and the admissible these poses of rules however, agrees committee, best be served justice will How- into evidence. ver- the statement the House supporters with those ever, may not be admitted residu- overly a statement broad that an felt sion who propo- exception unless this emasculate could hearsay exception al known to adverse it makes ex- recognized nent of hearsay rule in advance of the sufficiently party ceptions ... party hearing provide adverse residual that the It intended prepare to opportunity fair with a very rarely, and be used

notes special “guarantee” see can find a how one pt Found apparently crawled floor— his mother testified the fact that he trying get out of end of to BR— bed— very person. truthful was a help had called for quick enough but not response fact, permit admission of this state- notes, however, These do not indicate simply Kennedy’s ment because Nurse note Kennedy Nurse weak, whether provides highly meant last some controvert- phrase quick enough response” ed, any legal corroboration is to eliminate —“not —as evaluating stating special situation or as requirement of “trustworthiness.”

Case Details

Case Name: Leroy E. Brookover, Father and Guardian of Ronald Brookover v. Mary Hitchcock Memorial Hospital

Court Name: Court of Appeals for the First Circuit

Date Published: Jan 9, 1990

Citation: 893 F.2d 411

Docket Number: 89-1340

Court Abbreviation: 1st Cir.