Godwin v. Wellstar Health Systems, Inc.

Filing 110

OPINION AND ORDER that Joint Exhibit J-25 is not admissible. Signed by Judge William S. Duffey, Jr on 3/3/2016. (anc)

offers an opposing party’s statement. Fed. R. Evid. 801(d). The declarant-witness
exclusion requires that the statement sought to be admitted must either be
inconsistent with the declarant’s testimony—which the diary is not—or that it is
consistent with the declarant’s testimony and is offered to rebut a charge that
declarant recently fabricated her statement or to rehabilitate the declarant’s
credibility as a witness. Fed. R. Evid. 801(d)(1). Plaintiff here does not offer the
diary under either ground, because Plaintiff’s credibility has not been attacked nor
is there a charge that she fabricated her testimony.
Plaintiff next argues that those statements in Plaintiff’s diary which are
attributed to Cherise Brown are admission of a party opponent and thus are not
hearsay under Federal Rule of Evidence 801(d)(2)(D). She argues that the diary
thus should, as a whole, be admitted under this rule. The statements of a party
opponent are admissible. The question is whether this rule allows the entire diary
to be admitted. Most, if not all, of the diary entries are not statements made by
Cherise Brown, but statements made by a variety of other people and Plaintiff’s
explanations or characterizations of events. Plaintiff did not point to any specific
party opponent statement she claims is admissible. Plaintiff elects instead to argue
that the diary entries as a whole should be allowed because there may be
admissions of a party opponent contained in them. The Court finds that the diary

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as a whole is not admissible on these grounds, and the exhibit is hearsay, because it
is an out-of-court statement offered to prove the truth of the matters asserted in the
diary, and it does not fall under the hearsay exclusions in Rule 801(d).1
The Court next addresses whether any hearsay exceptions apply. Plaintiff
argues that the diary falls under the hearsay exceptions in Federal Rules of
Evidence 803(1) and (3). Federal Rule of Evidence 803(1), the “Present Sense
Impression” exception, allows a “statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.” The Court
finds that, while it is possible that Plaintiff could demonstrate that some concrete
portions of her diary were written under such circumstances as to satisfy the
requirements of Rule 803(1), Plaintiff failed to do so. See Hughes v. Indianapolis
Radio License Co., 2009 WL 226209, at *7 (S.D. Ind. Jan. 30, 2009). A cursory
review of the diary does not show any statements written “while or immediately
after” Plaintiff perceived the event or condition. “Plaintiff had the opportunity to
write down whatever she wanted to when she made her diary entries; they were not
spontaneous utterances, but rather the rendition of events that she chose to put
down on paper.” Id.; see also United States v. Santos, 201 F.3d 953, 964 (7th Cir.
1

The Court takes no position on whether during the remainder of the trial the
exhibit, or portions of it, may be used or admitted for other purposes.

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2000) (exception did not apply to handwritten note that “may have been intended
as a reflective summary and characterization of . . . conduct rather than a
spontaneous reaction to an immediate sensation”); United States v. Holmes, 498 F.
App’x 923, 924 (11th Cir. 2012) (“The underlying theory of this exception is that
the substantial contemporaneity of the event and the statement negate the
likelihood of deliberate or conscious misrepresentation”). The Court finds that
Rule 803(1) does not apply.
Federal Rule of Evidence 803(3) provides an exception for “Then-Existing
Mental, Emotional, or Physical Condition.” The Rule allows:
A statement of the declarant’s then-existing state of mind (such as
motive, intent, or plan) or emotional, sensory, or physical condition
(such as mental feeling, pain, or bodily health), but not including a
statement of memory or belief to prove the fact remembered or
believed unless it relates to the validity or terms of the declarant’s
will.
Fed. R. Evid. 803(3). Again, a cursory review of the diary does not show any
statements that would fall under this hearsay exception. Plaintiff also “fails to cite
any cases where the state of mind of the individual alleging discrimination is
relevant.” Jenks v. Naples Comm. Hosp., Inc., 829 F. Supp. 2d 1235, 1248 (M.D.
Fla. 2011).
Though Plaintiff does not raise the argument, some courts have allowed
portions of diaries under Federal Rule of Evidence 807. Rule 807 is the residual

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exception to the hearsay rule, and “Congress intended the residual hearsay
exception to be used very rarely, and only in exceptional circumstances, and it
applies only when certain exceptional guarantees of trustworthiness exist and when
high degrees of probativeness and necessity are present.” Jenks, 829 F. Supp. 2d at
1248 (internal quotation marks and alterations omitted) (quoting United Techs.
Corp. v. Mazer, 556 F.3d 1260, 1279 (11th Cir. 2009)). Plaintiff does not offer
any evidence showing that the diary has the guarantees of exceptional
trustworthiness required by Rule 807 or found in other exceptions to the hearsay
rule, or that high degrees of probativeness and necessity are present. The Court’s
review of the diary does not show any highly probative information to which
Plaintiff has not already testified or to which Plaintiff could not testify. The Court
finds that the diary is not admissible under Rule 807.2
For the reasons stated in this Order, the Court concludes that the exhibit is
not admissible.
2

The court in Jenks found a certain portion of plaintiff’s diary was
admissible, because it went to the state of mind of the relevant decisionmaker in
making her employment decision. The statement allowed was plaintiff’s
recollection that the supervisor told her “because you have cancer we have been
more lenient and let you get away with more because no one wanted to hurt [your]
feelings.” Jenks, 829 F. Supp. 2d at 1249. If Plaintiff believes comparable
statements going to Ms. Brown’s state of mind exist in Plaintiff’s diary, Plaintiff is
instructed to identify those statements for the Court to determine whether they are
admissible.

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SO ORDERED this 3rd day of March, 2016.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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