Jordan v. Binns

• Citation: 712 F.3d 1123
• Decision Date: 04 April 2013
• Docket Number: No. 11–2134.,11–2134.
• Parties: Betty M. JORDAN and Theodore R. Jordan, Plaintiffs–Appellants, v. Kelly D. BINNS and U.S. Xpress, Inc., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

712 F.3d 1123

Betty M. JORDAN and Theodore R. Jordan, Plaintiffs–Appellants,

v.Kelly D. BINNS and U.S. Xpress, Inc., Defendants–Appellees.

No. 11–2134.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 12, 2012.

Decided April 4, 2013.

Amy L. Cueller (argued), Attorney, Cueller Law Office, Indianapolis, IN, for Plaintiffs–Appellants.

Michael B. Langford (argued), Attorney, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, IN, for Defendants–Appellees.

Before KANNE, TINDER, and HAMILTON, Circuit Judges.

TINDER, 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, U.S. Xpress, Inc. (collectively, the defendants), for negligence 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 Indianapolis, 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 pavement, 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 insurance 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 thereafter, introduced himself to Binns as Betty's husband. 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 determination 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 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 reconstruction, 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 encroaching about 18 inches into Binns's lane. Another expert called by Binns testified that Betty had not exercised 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 excluded under the hearsay rule, seeFed.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 determine 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. SeeFed.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 admissible. Fed.R.Evid. 802. But the Federal Rules of Evidence (FRE) contain numerous exceptions to the rule against hearsay. SeeFed.R.Evid. 803, 804. Additionally, FRE 801(d) exempts or excludes from the definition of “hearsay” certain statements that otherwise would be hearsay. And “statements ... that comprise multiple levels of potential hearsay are admissible if each part is admissible.” United States v. Green, 258 F.3d 683, 690 (7th Cir.2001) (citations omitted); seeFed.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 testimony 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 statement 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 challenged). The following diagram ² is helpful:

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 alternative 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 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 definitional 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...