Reynolds v. American Airlines, Inc.

Filing 126

MEMORANDUM AND OPINION: re plaintiff's request to introduce exhibit. As explained in the attached Opinion, plaintiff's request to introduce the July 23, 2013 Incident Report is denied for three reasons. First, plaintiff did not have the Report with her in the Courtroom. Second, the Report is inadmissible hearsay, not subject to the business record exception or any other exception or exclusion. Third, introducing the Report would exceed the scope of redirect and would promote inefficiency and sandbagging. So Ordered by Magistrate Judge Cheryl L. Pollak on 11/28/2017. (Caggiano, Diana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
■X

JANET REYNOLDS,
Plaintiff,
MEMORANDUM AND OPINION

-against-

14 CV 2429 (CLP)

AMERICAN AIRLINES, INC.,
Defendant.
-X

POLLAK, United States Magistrate Judge:

On February 24,2014, plaintiff Janet Reynolds commenced this action against defendant
American Airlines, Inc. ("defendant" or "American Airlines") in the Supreme Court of the State

of New York, Queens County, seeking damages for personal injuries she suffered when the right
rear door of an American Airlines 767 airplane allegedly fell down on her back, knocking her to

the floor of the plane. The case was removed to this Court and trial began on November 27,
2017.

On the first day of trial, plaintiff Janet Reynolds testified on direct examination, followed

by a brief cross-examination. After defendant's counsel completed cross-examination, plaintiff s
counsel sought permission to introduce as an exhibit an Incident Report dated July 23,2013,

which plaintiff had failed to offer during direct examination even though it had not been
specifically addressed by defendant discuss during cross-examination.
As set forth on the record and explained below, the Court denied plaintiff s request for
several reasons.

BACKGROUND

In the Amended Joint Pretrial Order, plaintiff listed an Incident Report dated July 23,

2013 as her proposed exhibit number 19. (See Am.JPTO at 19,EOF No. 90, Nov.6,2017).
According to the plaintiffs testimony at trial, the Incident Report was a document prepared by
the plaintiff, at the direction ofthe AirServ dispatcher, shortly after she suffered her alleged
accident. The one-page document, which was prepared on AirServ letterhead, and signed by

plaintiff and a supervisor, briefly describes what plaintiff alleges occurred on the date of her
accident. Defendant objected in the Pretrial Order to the Incident Report on grounds of hearsay
statements. (See id.)

Although plaintiffs counsel specifically mentioned the Incident Report in her opening
statement, and elicited testimony from her client regarding the Incident Report several times over
the 75-minute direct examination ofthe plaintiff, she made no effort to introduce the Incident

Report as an exhibit during her direct examination. It was only after the conclusion ofthe brief,
targeted cross-examination by defendant that plaintiffs counsel sought a sidebar to request that

she be permitted to introduce this document as an exhibit. Although plaintiffs counsel claimed
she did not introduce the exhibit earlier due to a momentary lapse in memory, it turned out that

she did not even have a copy ofthe proposed exhibit with her in the courtroom. Nor had she

provided a copy ofthe Incident Report to the Court prior to seeking its admission.'
Defendant opposed the admission ofthis new exhibit on redirect as outside the scope of
defendant's cross examination ofthe plaintiff, and on grounds of hearsay.

'Plaintiff subsequently claimed that she was under the impression that all proposed
exhibits were included in the binder of exhibits provided to the Court by defendant prior to trial,

even though, as defendant's counsel pointed out, the binder of exhibits was clearly designated on
the front cover as "Defendant's" exhibits.

DISCUSSION

The Court denied the admission ofthe Incident Report based on several considerations,

A.

Plaintiffs Counsel Did Not Have the Exhibit in the Courtroom

First, despite plaintiffs counsel's claim that she momentarily forgot about the Incident
Report during direct examination, she did not have a copy of it with her in the courtroom and she
did not previously provide the Court with a copy. It is not clear how plaintiff could enter into
evidence an exhibit she did not bother to bring with her to trial. This failure alone would warrant
precluding introduction of the exhibit.
B. The Proposed Exhibit is Inadmissible Hearsay

Second, based on a review of the Incident Report, the Court concludes that it contains

inadmissible hearsay. The Incident Report is a "written assertion" by plaintiff of what she claims
occurred on the date in question and thus, is a "statement" under Federal Rule of Evidence 801(a).

The Incident Report is hearsay because: (1)it is a statement plaintiff did not make while testifying
at the current trial; and (2) which plaintiff offers in evidence to prove the truth of the matters
asserted in the Incident Report. ^Fed. R. Evid. 801(c)(l)-(2). "Hearsay is not admissible
unless" "a federal statute, [the Federal Rules of Evidence], or other rules prescribed by the
Supreme Court""provide[] otherwise." Fed. R. Evid. 802.

It is plaintiffs burden, as the proponent of the statement, to show the applicability of an
exception or exemption to the prohibition on hearsay. See 3OB Jeffrey Bellin, Federal Practice
and Procedure: Evidence §§ 6712, 6803 (2017 ed.); accord Evans v. Port Authoritv of N.Y. &

N.J.. 192 F. Supp. 2d 247, 263 n.l21 (S.D.N.Y. 2002)(explaining that the burden of establishing

admissibility, including the applicability of a hearsay exception or exemption, is with the
proponent ofthe evidence).
1. The Incident Report Does Not Qualify as a Business Record

Plaintiff argued that the document was admissible as an exception to the hearsay rule
because it constituted a "business record." Rule 803(6) provides that a record of a regularly

conducted activity may be admitted regardless of whether the declarant is available as a witness

so long as the record was(A)"made at or near the time by - or from information transmitted by
someone with knowledge;(B)the record was kept in the ordinary course of a regularly conducted

activity of a business, organization, occupation, or calling, whether or not for profit;(C)making
the record was a regular practice of that activity; (D) all these conditions are shown by the

testimony of the custodian or another qualified witness; or by a certification that complies with
Rule 902(11) or(12)

; and (E)the opponent does not show that the source of information or

the method or circumstances of preparation indicate a lack of trustworthiness." Fed. R. Evid.
803(6)(A)-(E).

In seeking to admit the document, plaintiff proffered that after the accident, she was taken
to MedPort on the premises ofJFK for medical treatment. She testified during direct examination
that about 40 minutes elapsed between the time the airplane door allegedly struck her and the time
she exited the aircraft at approximately 5:30 a.m. on the morning of the incident. She further
testified that she did not leave MedPort until 11 a.m., at which time she returned to the AirServ

office and wrote the Incident Report. She testified that she was required to prepare this Incident

Report as part of her duties as an AirServ employee and because her dispatcher instructed her to
do so.

The Court also allowed plaintiffto make a proffer as to admissibility ofthe Incident Report

after cross-examination. (^Tr. 198:23-202:22). During the course ofthat proffer, plaintiff only
testified that the Incident Report was prepared in the "regular course of business," and simply

responded affirmatively, without elaboration,to counsel's recitation ofthe elements ofthe Rule in
leading questions put to her by her counsel. (See id.) At no point did counsel ask plaintiff
questions to establish the trustworthiness ofthe Incident Report,such as whether everything in the
document is true, nor did she elicit testimony regarding whether AirServ regularly directs that such
documents be compiled and retained. (See id. at 202:23-203:9).
The first three conditions ofthe Rule are generally "shown by the testimony ofthe

custodian [ofthe record] or another qualified witness, or by a certification that complies with
Rule 902(11) or (12)[.]" Fed. R. Evid. 803(6)(D). "To lay a proper foundation for a business
record, a custodian or other qualified witness must testify that the document was kept in the

course of a regularly conducted business activity and also that it was the regular practice ofthat

business activity to make the [record]

The custodian need not have personal knowledge of

the actual creation of the document to lay a proper foundation." NV Petrus SA v. LPG Trading
Com.. No. 14 CV 3138,2017 WL 1905820, at *2(E.D.N.Y. May 8, 2017)(quoting United
States V. Komasa.767 F.3d 151,156(2d Cir. 2014)). To establish that the business record

exception applies, the proponent must elaborate on procedure, methodology, or accountability of
the business procedure;"[m]ere repetition of conduct, without some indicia of trustworthiness,
cannot constitute 'regular business activity' that is admissible under Rule 803(b)(6)." Ortho
Pharmaceutical Com, v. Cosprophar. Inc.. 828 F. Supp. 1114, 1120-21 (S.D.N.Y. 19931; see also
In re Nassau Countv Strip Search Cases. 742 F. Supp. 2d 304,319(E.D.N.Y. 2010)(explaining

"[t]hat the witness... answered the leading foundational questions asked by counsel in the

affirmative is not dispositive on the issue of admissibility when the concomitant substantive
evidence is to the contrary. In such a situation, form is necessarily trumped by substance lest the
purpose of the rules of evidence be perverted").

Plaintiff did not proffer as to how the document came to be in her possession, whether it

was a copy obtained directly from AirServ, whose responsibility it was to maintain the Incident

Report, or the process by which such records might have been maintained by AirServ.^ Indeed,
plaintiff specifically testified that she had no idea what was done with the Incident Report once
she provided it to her dispatcher. She therefore has not laid a proper foundation to invoke the
business record exception. Plaintiff did not list an AirServ records custodian in the Joint Pretrial
Order as a witness nor was there any stipulation between the parties as to the admissibility of this
document as a business record. Nor did plaintiff offer "a certification ofthe custodian or another
qualified person that complies with a federal statute."

Apart from being unable to establish the first four requirements ofthe business records

exception, the Court finds that the exception still would not apply because the document was

authored by the plaintiff several hours after the alleged incident, and there are thus clear indicia
"that the source of information or the method or circumstances of preparation indicate a lack of

trustworthiness." Fed. R. Evid. 803(6)(E). The Advisory Committee's Note to Rule 803(6) makes
it clear that the Court,in its discretion, may exclude even a record regularly generated in the course

of business where subsection(E)is met. As the Note explains,"the rule proceeds from the base

^ Plaintiff offered during the course ofthe argument relating to the document that she

could subpoena a witness from AirServ to come in and testify. However,she had never listed
such a witness in the Pretrial Order, nor did she give notice to defendant that she intended to call
such a witness prior to the offer of the exhibit in the middle oftrial.

that records made in the course of a regularly conducted activity will be taken as admissible but

subject to the authority to exclude if 'the sources of information or other circumstances indicate
lack of trustworthiness.'" Advisory Committee Note to Fed. R. Evid. 803(6)(emphasis added).

Apart from buttressing the plaintiffs testimony at trial, there was nothing in the Incident

Report itself that provided any independent indication of trustworthiness. The jury had the
opportunity to hear from the plaintiff directly, to observe her demeanor, and consider her
credibility. The document was offered merely to reinforce the witness' testimony at a time when
cross-examination had already concluded. Thus, the Court concluded that the document was

hearsay and not admissible under the business records exception to the hearsay rule.
2. No Other Exclusion or Exception Applies

Plaintiffs counsel limited her arguments for admissibility of the Incident Report to the

Business Records Exception. Nonetheless, in an abundance of caution, the Court has examined

whether any other exception or exclusion might apply. After conducting that review, the Court
has concluded that no other exception or exclusion applies.

The Incident Report does not fall into any of Rule 801(d)'s exclusions from the definition

of hearsay. The exclusion of a declarant-witness's prior statement under Rule 801(d)(1) is the

most promising of all the exclusions and exceptions, but the Incident Report does not meet any of
the requirements of that exclusion. The Incident Report also does not qualify under Rule
801(d)(1)(A) because it is not a prior statement that was given under penalty of perjury nor is it
inconsistent with any of the plaintiffs testimony at trial.

Fed. R. Evid. 801(d)(1)(A). The

Incident Report is not excluded from the definition of hearsay as a prior consistent statement under
Rule 801(d)(1)(B) because there has been no "express or implied charge that [plaintiff] recently
fabricated it or acted from a recent improper influence or motive in so testifying" to rebut, nor has

plaintiffs credibility as a witness been attacked in a way that the Incident Report would
rehabilitate.^Fed. R. Evid. 801(d)(l)(B)(i),(ii). Thus,the first exclusion in Rule 801 does not
apply.

The second exclusion in Rule 801 is also inapplicable because it is the plaintiff, not

defendant, who seeks to introduce the Incident Report, and it is therefore not excluded as a
statement "offered against an opposing party." Fed. R. Evid. 801(d)(2).

Plaintiff, who claims to have written the Incident Report and is thus the "declarant," is

available to testify, and she did so earlier in the day; thus,the exceptions embodied in Rule 804 do
not apply. See Fed. R. Evid. 804.

C. Introduction of the Exhibit Would Exceed the Scope of Redirect and Would Promote
Inefficiency and Sandbagging

Third, as defendant argued, plaintiffs effort to introduce the Incident Report after crossexamination concluded not only exceeded the scope of his cross examination but constituted an

unacceptable risk of sandbagging. As a general matter, "an attorney who calls a witness is

normally required to elicit on the witness's first direct examination all the testimony that the

attorney wishes to prove by the witness." 1 McCormick on Evidence § 32 (7th ed.). That rule

promotes fairness and efficiency by curtailing the opportunities for "sandbagging' and reducing
the need for numerous back-and-forth examinations.

Federal Rule of Evidence 611(a) vests discretion in the trial judge to determine the scope

ofredirect. Fed. R. Evid. 611(a); s^ I McCormick on Evidence § 32(7th ed.). In this Circuit,

"[r]edirect examination 'may be used to rebut false impressions arising from crossexamination[,] and the trial judge is in the best position to determine whether such a false

impression was created.' 'The scope of redirect examination is a matter entrusted to a trial

judge's broad discretion,"' United States v. Naiman. 211 F.3d 40, 51 (2d Cir. 2000)(quoting
United States v. Diaz. 176 F.3d 52, 80(2d Cir.), cert, denied. 528 U.S. 875 (1999)).

Plaintiff has made no showing that she seeks to introduce the Incident Report to rebut a

false impression created by cross-examination. Indeed, having observed both the direct and
cross-examination of plaintiff, the Court can discern no false impression that plaintiff might seek
to correct by introducing the Incident Report. During cross-examination, defendant's attorney

verified plaintiffs testimony on direct examination that, if she saw something amiss on an
aircraft while cleaning it, she would write it up and give the writing to the AirServ dispatcher.
Counsel then asked the plaintiff to confirm that she did not know what happened after the

dispatcher received the writing and would not know whether it ever reached American Airlines.
Plaintiff agreed that she did not know what happened once a report was given to the dispatcher.
Thus, there is no falsehood that the document could be expected to correct.

Even ifthere were, it would be inappropriate for the Court to exercise its discretion to

allow plaintiffto introduce the exhibit. The Court has repeatedly exhorted, admonished, and
reminded plaintiffs counsel to follow the Federal Rules and this Court's Orders. Plaintiffs
various attorneys—all from the same firm—^have ignored the Court's exhortations. Rule 611
directs the Court to exercise its discretion to ensure the effective determination ofthe truth and to

"avoid wasting time." Fed. R. Evid. 61 l(a)(l)-(2). However, under these circumstances, to
exercise the Court's discretion to allow introduction of this exhibit after cross-examination was

concluded and for the only purpose of impermissibly bolstering the plaintiffs testimony would
reward sandbagging, sloppiness, and a failure to comply with the Federal Rules.

CONCLUSION

For the reasons set forth above, plaintiffs motion to introduce on redirect examination an
exhibit she did not introduce on direct and which defendant did not address on crossexamination, is denied.

The Clerk is directed to send copies ofthis Order to the parties either electronically
through the Electronic Case Filing(ECF)system or by mail.
SO ORDERED.

Dated: Brooklyn, New York

/s/ Cheryl Pollak

November 28, 2017

Cheryl L^ollak
United Spates Magistrate Judge
Eastern District of New York

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