Berrier v. Bizer
Citation | 57 S.W.3d 271 |
Decision Date | 27 September 2001 |
Docket Number | No. 1999-SC-0485-DG.,1999-SC-0485-DG. |
Court | United States State Supreme Court (Kentucky) |
Parties | Sheri BERRIER (Formerly Sheri Wakefield), Appellant, v. Lewis S. BIZER; and Bizer & Bizer Optometrists, d/b/a Bizer Enterprises, Ltd., a/k/a Dr. Bizer's Visionworld, Appellees. |
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Jonathan C. Hardy, Louisville, Virginia M. O'Leary, Oakland City, IN, Counsel for Appellant.
Mark A. Smedal, Napier, Perkins & Smedal, Louisville, Counsel for Appellees.
Barbara D. Bonar, Wolnitzek, Rowekamp, Bender & Bonar, PSC, Covington, Counsel for Amicus Curiae Kentucky Employment Lawyers Association.
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Appellant Sheri Berrier (formerly Wakefield) brought this action against Appellees Lewis S. Bizer and Bizer & Bizer Optometrists, d/b/a Bizer Enterprises, Ltd., a/k/a Dr. Bizer's VisionWorld (hereinafter "Bizer")1 claiming that she was wrongfully discharged from her employment in violation of KRS 337.990(14), see KRS 446.070, and that she was discriminated against because of her pregnancy in violation of KRS 344.040(1). A Jefferson Circuit Court jury returned a verdict in favor of Bizer and judgment was entered accordingly. The Court of Appeals affirmed. We now reverse for a new trial because of the admission of hearsay evidence in the form of written summaries of interviews that were marked as exhibits and taken to the jury room for consideration during deliberations. Because this case is being remanded for a new trial, we will also address Berrier's claims of error with respect to (1) requests for admissions served on Bizer pursuant to CR 36.01; (2) evidence of alleged post-discharge retaliation; and (3) punitive damages.
Bizer employs approximately 500 persons at a number of optometry stores in the Louisville area. Berrier was employed as a dispenser2 at the Preston Highway store from September 21, 1991 until she was discharged without notice on November 22, 1993. Berrier claims she was discharged because (1) her pregnancy required more work absences and rest breaks than her store manager, Barry Gallas, considered appropriate; and (2) she had complained to the Kentucky Labor Cabinet, Division of Employment Standards, that the store's "open" rest break policy violated KRS 337.365 (). A subsequent investigation by the Division of Employment Standards found that Bizer's rest break policy did not violate the statute. Bizer claims Berrier was discharged because of "gross misconduct," specifically, a November 10, 1993 verbal confrontation with Barry Gallas in the presence of employees and customers, characterized by Bizer as "blatant insubordination."
Between June 13 and June 21, 1994, Bizer's attorney interviewed nine employees of Bizer's Preston Highway store with respect to the incidents leading up to Berrier's termination. He made handwritten notes during the interviews and reduced the notes to separate typewritten "witness interview" summaries. He then furnished each witness with a copy of her "witness interview" summary for suggestions or corrections. Most of the summaries were returned with handwritten notes or corrections added. Prior to the November 1997 trial, each witness was again given a copy of her "witness interview" summary to refresh her recollection. So far, so good. However, at the conclusion of the direct examination of each witness at trial, Bizer's attorney produced that witness's "witness interview" summary, had the witness authenticate it, and, over the continuing objection of Berrier's attorneys, introduced it into evidence as a marked exhibit. The jury was permitted to take these exhibits to the jury room for consideration during deliberations. We will not burden this opinion with the content of each "witness interview" summary or the manner in which it was authenticated and introduced into evidence. Typical, however, was the summary of the interview of Michele Logsdon, which provided as follows:
There are multiple reasons why the admission of this statement and its treatment as a trial exhibit requires reversal for a new trial. First, the statement contains numerous prejudicial assertions and opinions that were not repeated in Logsdon's sworn testimony at trial. Specifically, Logsdon did not testify that Berrier was a "trouble maker," or a "drag on the morale of her co-workers," or that Berrier "should have been fired long ago and that she got away with too much insubordinate or other improper activity." Nor did she testify that Berrier told her that "after she was pregnant she would likely go on AFDC and not return to work." Those statements were not the testimony of the witness, but statements attributed to the witness by Bizer's attorney. Logsdon was not asked if the contents of the summary were accurate, but only if she wished to change anything in the summary. The proscription in KRE 611(c) against asking leading questions on direct examination would have precluded Bizer's attorney from specifically asking Logsdon if Berrier was a "trouble maker," "a drag on morale," or "insubordinate," or otherwise putting words in her mouth. By introducing the "witness interview" summary, he accomplished much more. Not only was he able to introduce Logsdon's derogatory opinions of Berrier's workplace conduct without eliciting them directly from the witness, he was able to frame the evidence in his own words, not the witness's.
Even if the "witness interview" summary had been prepared by Logsdon, herself, it would have been hearsay, since it was an out-of-court statement offered to prove the truth of the matter asserted. KRE 801(c); Fields v. Commonwealth, Ky., 12 S.W.3d 275, 279 (2000). A hearsay statement of a non-party witness is admissible only if the statement is:
KRE 801A(a). Logsdon did not testify inconsistently with the contents of the "witness interview" summary and her testimony did not pertain to identification. Nor was there any express or implied charge that her trial testimony was recently fabricated or the product of improper influence or motive. In fact, the summary was introduced during the direct examination of Logsdon, not in rebuttal.
Bizer claims the summary was a "recorded recollection," KRE 803(5), offered to refresh Logsdon's memory. KRE 612. This argument confuses the concepts of "past recollection recorded" and "present memory refreshed." KRE 612 applies to the latter and permits the writing to be introduced only by the adverse party.
A writing used to refresh memory does not, through that process, acquire any status as evidence. It may not be introduced as such by the party using it to refresh memory and, as stated in one opinion, it "cannot...
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