EVIDENCE UPDATE

“Hearsay & Objections at Arbitration”

Jack CannonTHE HEALY LAW FIRM

Peter StavropoulosBRADY, CONNOLLY & MASUDA

HEARSAY

• Rule 801(c) of the Illinois Rule of Evidence defines hearsay as “a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted.”

HEARSAY

• The question is whether it’s offered for the truth of the matter asserted or whether it falls under a hearsay exception.

HEARSAY

Mary testifies at arbitration: “I heard John say that Tom ran the red light” •If offered by Mary to determine the issue of whether or not Tom ran the red light, it is hearsay because we cannot cross examine John •If it is offered by Mary to establish that John was awake, than it is not hearsay because we can cross examine Mary as to whether she actually heard John speak

HEARSAY

•The decision to admit or exclude evidence is left to the sound discretion of the trial judge

HEARSAY

Non-Hearsay Under 801(d)

•Admission by a party opponent

•Person authorized by the party

HEARSAY• Section 12 report is not an admission by a party

opponent.

• Nollau Nurseries (1965) – Illinois Supreme Court says admissible as agent

• Taylor (1994) – Not admissible. Hired medical expert is not an agent per se

• Basis – Hiring party may have influence, but not control

HEARSAY

• Greaney v. Industrial Comm’n

• Numerous cases that have held that a party’s independent medical expert is not an agent per se

Rule 803 Hearsay Exceptions

• There are 24 hearsay exceptions – 1. Reserved– 2. Excited Utterance – 3. Then Existing Mental, Emotional, or Physical Condition– 4. Statements for Purposes of Medical Diagnosis or Treatment– 5. Recorded Recollection– 6. Records of Regularly Conducted Activity– 7. Absence of Entry in Records Kept in Accordance With the Provisions

of Paragraph 6– 8. Public Records and Reports– 9. Records of Vital Statistics– 10. Absence of Public Record or Entry– 11. Records of Religious Organizations– 12. Marriage, Baptismal, and Similar Certificates

Rule 803 Hearsay Exceptions

• There are 24 hearsay exceptions– 13. Family Records– 14. Records of Documents Affecting an Interest in Property– 15. Statements in Documents Affecting an Interest in Property– 16. Statements in Ancient Documents– 17. Market Reports, Commercial Publications– 18. Reserved. [Learned Treatises]– 19. Reputation Concerning Personal or Family History– 20. Reputation Concerning Boundaries or General History– 21. Reputation as to Character– 22. Judgment of Previous Conviction– 23. Judgment as to Personal, Family or General History, or Boundaries– 24. Receipt or Paid Bill

Rule 803(4)STATEMENTS FOR PURPOSES OF MEDICAL

DIAGNOSIS OR TREATMENT

• Rule 803(4) of the Illinois Rules of Evidence codifies a hearsay exception: – Statements made for purposes of medical treatment, or

medical diagnosis in contemplation of treatment, and describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment but subject to Rule 703, not including statements made to a health care provider consulted solely for the purpose of preparing for litigation or obtaining testimony for trial….

Rule 803(4)STATEMENTS FOR PURPOSES OF MEDICAL

DIAGNOSIS OR TREATMENT

• Statements for Purposes of Medical Diagnosis or Treatment

• Statements made for purposes of medical diagnoses or treatment including description of the cause of symptom, pain or sensations

• Statements of causation in treatment records – admissible?

• Petitioner’s position – no exception created within rule – therefore admissible

Rule 803(4)STATEMENTS FOR PURPOSES OF MEDICAL

DIAGNOSIS OR TREATMENT

• The respondents’ counter argument is that a statement of causation has nothing to do with treatment – not usually a Statement for Purposes of Medical Diagnosis or Treatment

• The Court in Fencl-Tufo allowed records in over a hearsay objection because they were not created in anticipation of litigation

Rule 803(4)STATEMENTS FOR PURPOSES OF MEDICAL

DIAGNOSIS OR TREATMENT

• Respondents’ argue that causation opinions in the treating records are only there in anticipation of litigation

• Therefore, these opinions make the records not inherently trustworthy and inadmissible hearsay. Fencl-Tufo Chevrolet, Inc., v. Industrial Comm’n, 523 N.E.2d 926, 929-30 (1st Dist., 1988)

Recorded Recollection

• Hearsay exception 803(5)

• Employer accident reports would fall under this exception, as long as a foundation is laid by the individual who made the report

• Only by author

803(6) Records of Regularly Conducted Activity

• Commonly referred to as the “Business Record” exception

• The rule is premised on the concept of routineness

• Need not be author, can be custodian or another qualified witness

• Supreme Court Rule 236

803(7) Absence of Entry in Records

• The absence of entry in records kept in accordance with the provision of paragraph(6)

• e.g. attendance records, wage statements

Experts Rule 703

• An expert may base his or her opinion on facts or data made known to him or her at or before the trial

• The facts or data need not be admissible in evidence

in order for the opinion to be admitted. Wilson v. Clark

• Regularly relied upon by professionals in the field

Hypothetical Questions• Hypothetical questions are no longer required

to elicit the experts opinion. • Rule 705:

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise

• The expert may in any event be required to disclose the underlying facts or data on cross examination

Doctor’s Depositions

• Submitting a doctor’s report at the time of his deposition is hearsay and improper

• Self-serving and improper bolstering

§13:10 Photographs

• Witness has personal knowledge

• Accurate depiction of the subject matter

• Does it assist the finder of fact?

§15:90 Charts, Diagrams, Graphs or Maps

• Layperson may use or draw a map to describe where an incident occurred

• Blackboards may be used to aid a witness in testifying about an occurrence

Objections:

The most common objections made at the Illinois Workers’ Compensation Commission

Screen from an actual video game, Objection!

MOST COMMON OBJECTIONS TO QUESTIONS

LEADING

• Defined – A question that suggests the desired answer to the witness

LEADING

• Improper on direct examination with exceptions:– Permissible for preliminary questions– Permissible for child witnesses– Permissible for adverse or hostile witnesses– Permissible for questions regarding undisputed issues– To lay a foundation– Can be waived

• Proper on cross-examination and re-direct examination

FORM OF THE QUESTION/VAGUE

• Usually asserted to make a clear record

• Objection raised in response to:– Compound question– Confusing question– Question asking the witness to speculate

CALLS FOR SPECULATION

• Questions asking the witness to speculate are improper– Basis – Cases must be decided on facts, not

guesswork

CALLS FOR SPECULATION

• Lay-witnesses are allowed to give estimates on certain issues– Examples• Distance• Time• Speed• Age

CALLS FOR SPECULATION

• Expert testimony treated differently

• Greater latitude given and questions asking for speculation can be permitted– Basis – An expert’s speculation is based on her

expertise and experience

ASKED AND ANSWERED

• Improper because– Wastes time of the court– Places undue emphasis on answers

• Applies to both direct and cross examination

IRRELEVANT

• Relevant defined:– Evidence that has, “any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence.” FRE 401

• Definition defined:– Is the evidence a fact that helps the trier of fact

decide the case?

IRRELEVANT

• Is the fact “of consequence?”

• Does the evidence help the arbitrator make a decision relative to the case?

IRRELEVANT

• Relevant evidence can still be excluded at the court’s discretion if probative value is substantially outweighed by considerations such as:– Unfair prejudice– Confusion– Delay– Waste of time

BEYOND THE SCOPE

• Cross-examination and re-direct examinations are limited to– Subject matter of direct– Credibility of witness

• Rebuttal testimony only proper when it contradicts substantial evidence previously presented by opposing counsel

CALLS FOR A HEARSAY ANSWER

• Counsel anticipates a hearsay answer

• Question prompts witness to testify about an out-of-court statement to prove the truth of the matter asserted

MOST COMMON OBJECTIONS TO ANSWERS

HEARSAY

• Answer includes testimony regarding an out-of-court statement being offered to prove the truth of the matter asserted

• Does not fall under one of the exceptions

NARRATIVE

• Why is it objectionable?– Allows a witness to provide inadmissible evidence

without giving opposing counsel a chance to make a timely objection

NARRATIVE

• Court has discretion as to how much latitude to give witness

• Opposing counsel may waive objection for strategic reasons

UNRESPONSIVE

• Defined:– An answer that does not directly respond to the

question

• Improper testimony if the answer goes beyond what is necessary to respond to the question

• Only the party calling the witness can make the objection

OPINION

• Only proper when:– Witness has been properly qualified as an expert– Area is one in which specialized knowledge will

assist the trier of fact

OPINION

• Lay-witnesses can testify regarding an opinion only when:– Based on witness’ perception of an event– Is helpful to the trier of fact in understanding the

facts

MOST COMMON OBJECTIONS TO EXHIBITS

HEARSAY

• The basis for excluding evidence under the hearsay rule is that an opportunity to ascertain the veracity of the statement is absent

• As discussed, causation opinions in treating records are commonly objected to as hearsay statements made in anticipation of litigation

IRRELEVANT

• Is the evidence a fact of consequence that helps the trier of fact render a decision on an issue?

FOUNDATION

• Proper foundation must be established to survive an objection

• Every exhibit must meet three requirements before it can be admitted into evidence– Qualifying witness must be competent– Exhibit must be relevant– Exhibit must be authenticated

FOUNDATION

• Authentication:–Establishing that the exhibit is

what it purports to be

FOUNDATION

• Each type of evidence requires its own foundation

• Most common foundation objection at arbitration - surveillance video

FOUNDATION• Elements necessary to lay foundation for sound/video recordings

– Recording is relevant– Recording machine was tested before being used and was in normal

operating condition– Recording machine used can accurately record and reproduce

sound/images– Operator was experienced and qualified to operate the recording

machine used– Witness heard/saw what was being recorded– After the recording was made, the operator replayed the tape and the

tape accurately recorded the sound/images– Tape was labeled and sealed and secured to guard against tampering

until removed for trial– Recording machine in court is in normal operating condition and can

accurately reproduce the sound/images on tape– Witness recognizes and can identify the images and sounds on the

tape

FOUNDATION

• Time consuming process

• Can require up to three witnesses– Qualify machines and recordings– Demonstrate the custody of the tape– Identify the images on the tape

• Can be waived if no objection is raised or by agreement

MEDICAL RECORDS: CERTIFIED OR SECURED PURSUANT TO

SUBPOENA

• Pursuant to Section 16 of the Act, if records are neither certified nor secured via subpoena they are inadmissible

• Securing records by subpoena creates a rebuttable presumption that they are complete and accurate

OFFER OF PROOF

• When an objection successfully excludes evidence or testimony, the attorney should make an offer of proof

• Goals:– May persuade arbitrator to reverse ruling– Creates a record for reviewing Commission/Court

OFFER OF PROOF

• When excluded evidence is testimony– Attorney can tell the arbitrator what the

testimony will be, either by narrative or in a question-answer format

– Use the witness and continue with the examination of the witness using the same questions to which objections had been sustained

OFFER OF PROOF

• When excluded evidence is an exhibit– Attorney will ensure that the exhibit is made a

part of the record– Arbitrator will ignore it when issuing decision

OFFER OF PROOF

• Allows reviewing Commission/Court to:– Determine whether the evidence was properly

excluded– If so, consider whether exclusion was reversible

error– Because of its jurisdiction, the Commission can

consider improperly excluded evidence when reaching its decision

BEST EVIDENCE RULE

• More accurately called the “Original Document Rule”

• Codified by Illinois Rules of Evidence, Rule 1002 and 1003

BEST EVIDENCE RULE

• Duplicates are admissible to the same extent as the original unless:– Genuine question as to the authenticity of the

original– Under the circumstances, it would be unfair to

admit the duplicate instead of the original

RELEVANT CASE LAW

EVIDENTIARY RULINGS THAT HAD A SIGNIFICANT IMPACT ON

HOLDINGS

Napoletano v. Rehabilitation Institute of Chicago, 12 IWCC 0999 (2012)

• Petitioner’s counsel objected to deposition of Section 12 doctor being admitted into evidence, as well as to testimony regarding the questions asking petitioner about his pre-injury and post-injury symptomatology

• Objection was based on the argument that petitioner’s counsel was not present during the “interrogation”

• Arbitrator allowed the deposition transcript in, but sustained the objections made during the deposition regarding the history obtained

• Commission affirmed decision to allow transcript into evidence, and reversed the arbitrator regarding the exclusion of the testimony surrounding the history obtained

• Commission held Section 12 examiner is allowed to ask questions regarding the petitioner’s medical history even if petitioner’s attorney and a court reporter are not present

Szewczyk v. Advanced Wire Products, 08 IWCC 0430 (2008)

• Arbitrator found that petitioner fell into the “odd lot” category for permanent total disability, based in part on petitioner’s Social Security award

• Respondent objected to the award on the basis of hearsay, arguing there was no exception under which the document fell

• Commission found the arbitrator erred in allowing the Social Security award into evidence and citing it in his decision.

• Commission held that petitioner was entitled to maintenance, and ordered respondent to issue a written assessment of petitioner’s vocational rehabilitation prospects

Yeater v. US Food Service, 09 IWCC 1336 (2009)

• Respondent raised two objections to a letter by petitioner’s family physician– Hearsay– Letter was made in anticipation of litigation

• Arbitrator overruled respondent’s objections and allowed petitioner’s attorney to introduce the letter into evidence

Yeater v. US Food Service, 09 IWCC 1336 (2009)

• Commission ruled that the letter was prepared for the purpose of litigation and the arbitrator erred in allowing the introduction of the letter over respondent’s objection

• With respect to the hearsay objection, the Commission found that the letter did not fall under the business record exception and found that the arbitrator erred in allowing the letter on this basis

• Commission ruled that the letter should be stricken from the record and should not be considered as part of the evidence for that claim

Bolden v. Support Systems and Services, 07 IWCC 1209 (2007)

• Commission determined that the arbitrator improperly admitted and relied upon hearsay evidence in relation to a number of documents.

• A report by Inspector General, a witness statement, a statement from an interview, investigator’s notes of the interviews with witnesses and a witness’s daily journal

• Commission found that the testimony of regarding what witnesses to an altercation may have said was inadmissible hearsay

• Commission found that it was, in fact, proper to admit an investigator’s notes of her interview with petitioner as admissions

Pfohl v. Monica Swalley, d/b/a the Gold Room, 10 IWCC 0119 (2010)

• Commission rejected petitioner’s claim that the arbitrator erred in barring statements made by deceased petitioner in the presence of testifying witnesses

• Commission found that the testimony that petitioner wished to introduce was barred by respondent’s hearsay objections

• Review of the record indicated that the arbitrator correctly sustained the hearsay objection

Helmick v. Royse & Brinkmeyer Apts., 10 IWCC 0289 (2010)

• Petitioner testified that, after suffering an injury, she informed her co-workers that she could not lift any more buckets

• Robert Glasa, Respondent’s chief operating officer, testified for respondent and stated that another witness, Harris, had reported that petitioner was insubordinate

• Commission found that the only evidence of petitioner’s alleged offending volitional conduct came through the conclusory statements of Harris, through Glasa, that petitioner was insubordinate

• Commission determined that respondent correctly argued that Harris’ statements may have been admitted to show their effect on Glasa, and to explain his subsequent action in terminating petitioner, but held that admission on that basis did not legitimize their consideration for purposes of proving the fact of petitioner’s alleged insubordination

• For that purpose, the statements remained inadmissible hearsay

Westin Hotel v. Industrial Comm’n of Ill., 865 N.E.2d 342 (1st Dist., 2007)

• Petitioner offered into evidence respondent’s Section 12 exam report, which was admitted into evidence over respondent’s hearsay objection

• Court held that a report by an independent medical expert retained by the employer to examine petitioner was not an admission against the employer’s interest

• The Court held the report was hearsay and inadmissible

City of Chicago v. Workers’ Compensation Comm’n, 899 N.E.2d 1247 (1st Dist., 2008)

• The Appellate court held that the Commission committed reversible error when it excluded the independent medical examination (IME) report from the employer’s physician on the basis that the IME was not tendered to the petitioner’s attorney before the treating physician’s deposition.

• The Court determined that the IME was not conducted until after petitioner’s physician’s deposition, and that the IME report was tendered to petitioner a few days after the examination and well before the arbitration hearing

• The court found that this satisfied the statute requiring exchange of IME reports no later than 48 hours before a case was set for hearing, the purpose of which was to prevent surprise medical testimony at the arbitration hearing

United Airlines v. Workers’ Compensation Comm’n, 942 N.E.2d 711 (2011)

• The Appellate Court held that proffered testimony of employer’s expert witness concerning when petitioner would be expected to exit the work force was irrelevant to determination of wage differential benefits and was properly excluded

• The Court determined that the term, “disability” in the statute governing wage differential benefits referred to physical and mental disability, and not economic disability

Mulligan v. Illinois Workers’ Compensation Comm’n, 946 N.E.2d 421 (1st Dist., 2011)

• Petitioner appealed a decision awarding him 12 weeks of TTD and 50% of the person as a whole in permanency benefits

• On review, the Commission admitted testimony of a physician who was not even retained to perform a records review until after the arbitration hearing had commenced

• The Appellate Court found that this was a violation of the Act’s rules requiring disclosure of the report of a medical expert at least 48 hours in advance of hearing

Mulligan v. Illinois Workers’ Compensation Comm’n, 946 N.E.2d 421 (1st Dist., 2011)

• The Court further determined that when a party objects to the admission of medical testimony on the grounds that this section of the Act has been violated, then the proponent of the medical testimony has the burden of proving compliance with the Act

• Allowing the employer to take the physician’s evidence deposition after the start of the arbitration hearing without requiring employer to show good cause violated the Act.

• The Court further held that the Commission’s error in admitting the testimony of two medical experts, despite the fact that their reports were not timely furnished to petitioner, was not harmless, and vacated the Commission’s decision

QUESTIONS/DISCUSSION