Brookover v. Mary Hitchcock Memorial Hospital
893 F.2d 411 (1st Cir. 1990)

BOWNES, Circuit Judge.

Defendant-appellant Mary Hitchcock Memorial Hospital (Hospital) appeals from a jury verdict holding it liable in this diversity jurisdiction medical malpractice case. The case arose from a fall by a patient, Ronald Brookover (Ronald), in his room at the Hospital. Plaintiff-appellee Leroy E. Brookover is the parent and guardian of Ronald Brookover. There are two issues on appeal: the admission of statements under Fed. R. Evid. 801(d)(2)(D); and the admission of statements under Fed. R. Evid. 804(b)(5).


The basic facts are uncontested. Ronald was age 36 at the time of the accident. When he was nine years old he was in an automobile accident and incurred injuries resulting in periodic epileptic seizures. As Ronald grew older his seizures became more severe and more difficult to control. These seizures included grand mal seizures that caused Ronald to convulse violently and lose consciousness and akinetic seizures that caused him to drop uncontrollably to the floor. Both types of seizures caused Ronald to fall on numerous occasions and resulted in injuries that included two fractured ankles, broken teeth and various bruises. Ronald is also mentally retarded.

After trying various methods to improve Ronald's condition, the Brookovers finally decided to try a corpus callosotomy, a surgical procedure in which the left and right hemispheres of the brain are separated. If successful, the operation reduces epileptic seizures significantly. The procedure requires two phases: the first is a partial dissection, the second phase completes the separation of the brain hemispheres.

Ronald was admitted to the Hospital in April of 1983 for the first phase of the corpus callosotomy. Ronald responded well to the first phase of the operation and returned to the Hospital in November of 1983 for the second phase. The operation was performed on November 10, 1983. On November 13, Ronald, who was not physically restrained, got out of his bed to go to the bathroom and fell, breaking his hip. Prior to getting out of bed Ronald had pressed his call bell for assistance, but no one came immediately.

A medical malpractice suit was brought by plaintiff for the injuries suffered by Ronald as a result of the fall. At trial there were two basic issues: whether the Hospital was negligent in not restraining Ronald to prevent him from getting out of bed; and, whether the Hospital's response time to Ronald's call for assistance was unreasonably slow....


After considering submitted memoranda as well as oral argument, the district court ruled that statements made by Ronald to his mother approximately eleven hours after his fall were admissible under the "catch-all" hearsay exception, Fed. R. Evid. 804(b)(5). On appeal, the Hospital contends that Ronald's hearsay statements did not meet the requirements of that exception and, therefore, should have been excluded....

At the time of Ronald's fall one of the Hospital nurses, Nurse Kennedy, was in the adjacent room. She testified that she heard a loud thump against the wall in Ronald's room and immediately left to investigate. She discovered Ronald on the floor and asked him what had happened. Based on what Ronald told her and her personal observations, she made the following notation on Ronald's clinical record: "Found pt [patient] on floor--Apparently crawled out end of bed--trying to get to BR [bathroom]--had called for help but not a quick enough response."

Approximately eleven hours after Ronald's fall, his parents arrived at the hospital unaware of the previous night's events. After learning from the station nurse that Ronald had fallen, the Brookovers went to their son in his hospital room and asked him what had happened. Over the Hospital's objection, Mrs. Brookover testified as follows:

Mrs. Brookover: We ran into the room and we said, "Ron, what in the world's happened?" And he said, "Oh, Mother, I fell." He said, "I needed to go to the bathroom. I wanted to tinkle."

Attorney Felmly: Is that the way he describes going to the bathroom?

Mrs. Brookover: Yes. He said, "I put the call bell on," or the call light. He said, "I put the call bell on and I waited and I waited and no one came. I waited again and put the call bell on again two or three times." He'd keep a punching it he said. "And no one came to help me. And I called out, 'help! Help me!' and no one came." And he said, "Mother, I fell."

Attorney Felmly: Did he tell you how he managed to fall or how it came to be that he actually fell after trying to use the call button?

Mrs. Brookover: He showed me that he got out through the rails, the split rails. He was smaller than he is now. He told me, he said, "I got out through these rails, Mother. And I fell. I hit my head and I hit my leg." And he said, "The nurse came in finally when I fell and she was about mad at me. She bawled me out."

Following this testimony, Attorney Felmly showed Mrs. Brookover Nurse Kennedy's notations, supra, and asked her, through a series of questions, if the notations confirmed what Ronald had told her that next morning. Mrs. Brookover testified that the two were consistent.

There was additional testimony directly on the question whether the Hospital's response was tardy. Mrs. Brookover testified that a couple of days after Ronald's fall:

[Nurse Kennedy] came up in the hall, my husband and I was standing in the hall, and by Ron's room, and she said--she was crying and she said, "Mr. and Mrs. Brookover, I am so sorry. I just couldn't get to Ron. I was with another patient. We're so short-handed and I was with another patient and I couldn't get to Ron. The call light was on and I heard him call, but I couldn't get to him."

Nurse Kennedy, on direct examination, admitted apologizing to the Brookovers but denied ever telling them that the Hospital was short-staffed or that she had heard the call bell. On cross examination, Attorney Felmly brought out that in a deposition taken a year earlier, Nurse Kennedy stated that she did not remember exactly what she had told the Brookovers....

A ruling on admissibility under the residual exceptions (Rules 803(24) and 804(b)(5)) is reviewed under the clearly erroneous standard. This standard gives considerable discretion to the trial court's determination. Its ruling should not be disturbed "unless we have 'a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.' " United States v. Doe, 860 F.2d 488, 491 (1st Cir. 1988), cert. denied, 490 U.S. 1049, 109 S. Ct. 1961, 104 L. Ed. 2d 430 (1989) (quoting, Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982)).

General guidance on the use of the residual hearsay exceptions is found in the Senate Judiciary Committee Report....

The Hospital has not challenged the unavailability of Ronald as a witness. Nor has any question been raised about the requirement of prior notice to the adverse party that the exception(s) will be invoked. We assume, therefore, that it was met. The Hospital's main attack against the admission of Ronald's statements as related by his mother stems from the Rule's requirement that the statements have "equivalent circumstantial guarantees of trustworthiness" to the other hearsay exceptions. The Hospital argues that because both Ronald and his mother are interested parties, because Ronald had a motive to fabricate and embellish the prior night events,(1)5 and because the statements lacked any contemporaneity with the event, Ronald's statements do not meet the "equivalent trustworthiness" requirement.

The case law on this issue reflects that the determination of equivalent trustworthiness is completely fact driven. In Furtado v. Bishop, 604 F.2d 80 (1st Cir. 1979), appellant objected to the introduction of a letter written by an attorney who had died by the time of trial. The trial judge admitted the letter pursuant to the residual exception on the basis that he knew the deceased to be an honorable man. This court questioned the judge's reason for admitting the letter, but found other additional indicia of reliability from its own examination of the record and upheld the admission. The court also stated that the weight to be given to the evidence was a matter for the jury to decide.

Here, the trial judge did not explicitly state what indicia of reliability and trustworthiness he relied on for admitting Mrs. Brookover's testimony. This was contrary to the admonition in the Senate Committee notes and it would have been helpful to us had he done so. On the other hand we know that the trial judge was the beneficiary of both written memoranda and oral argument on the issue. We must assume that he understood the requirements and limitations of the Rule. There is nothing in the Rule itself that requires explicit findings.

No single factor is dispositive on the issue of whether evidence should be admitted under the residual exception. The district judge must evaluate all of the factors and make a determination. In this case the judge made a careful decision after considering the arguments presented by both sides. Of course, Ronald's testimony would be the most probative on what happened in his room. The district judge also had the benefit of seeing Mrs. Brookover testify, and it was her credibility more than her son's that counted. In addition, the jury was able to evaluate the credibility of Mrs. Brookover's testimony and determine the weight it should be given.

Moreover, there is one strong, indeed almost irrefutable, indicia of reliability. The notes of Nurse Kennedy, which were clearly admissible and made within a short time after Ronald's fall corroborated what Mrs. Brookover testified Ronald told her eleven hours after the fall.(2)6 Nurse Kennedy wrote that she found Ronald on the floor, that he apparently crawled out of bed to get to the bathroom and significantly, "had called for help but not a quick enough response." Considering all the relevant factors we cannot say that "we have a definite and firm conviction that the court made a clear error of judgment" in admitting Mrs. Brookover's testimony. United States v. Doe, 860 F.2d at 491.(3)7

BREYER, Circuit Judge (dissenting).

In order to admit into evidence the hearsay statement of an unavailable declarant under Fed. R. Evid. 804(b)(5)'s residual hearsay exception, a court must find "circumstantial guarantees" of the statement's "trustworthiness" that are "equivalent" to those found in the Rule's other exceptions for (1) former testimony subject to somewhat similar cross examination, (2) a statement made under belief of impending death, (3) a statement against interest, and (4) a statement of personal or family history. Fed. R. Evid 804(b)(1-4). See 4 J. Weinstein & M. Berger, Weinstein's Evidence 804(b)(5)[01], at 804-173 (1988) ("[T]he courts have admitted hearsay statements pursuant to Rule 804(b)(5) when a trustworthiness within the spirit of the Rule 804 class exceptions have been demonstrated.") [hereinafter Weinstein's Evidence]. Where can the court find such guarantees with respect to Ronald's statements, made to his mother the day following his accident, that he "put the call bell on," "waited and ... waited," and "put the call bell on again two or three times" before he left the bed and fell?

The majority finds such a guarantee in hospital notes that Nurse Kennedy wrote, notes that say,

Found pt on floor--apparently crawled out of end of bed--trying to get to BR--had called for help but not quick enough response

These notes, however, do not indicate whether Nurse Kennedy meant the last phrase--"not quick enough response"--as evaluating the situation or as stating the obvious (that the response was not quick enough to prevent the fall), or, if the former, whether the evaluation is her own or Ronald's. No other corroborating evidence was ever introduced; on the contrary, Nurse Call testified that she arrived in Ronald's room "between 30 and 45 seconds" after hearing "Ron's bell go off" and found Nurse Kennedy already there. Where in this is there any special "guarantee" of "trustworthiness" for the relevant portion of Ronald's statement, the assertion of a significant lapse of time between his signalling for help and the nurses' response?

There is no special "guarantee" of "trustworthiness" in the fact that Ronald is retarded. He may not have been capable of understanding how his statement ("I waited and waited") might be used to show the hospital's liability, but he was perfectly capable of understanding that he was not supposed to get out of bed on his own, and he would seem as capable as anyone else of exaggerating the wait to disown his own fault. Cf. United States v. York, 852 F.2d 221, 226 (7th Cir. 1988) (excluding statements of fourteen year-old witness partly because he "had a motive to misrepresent the truth"); id. at 225 ("critical" factor in trustworthiness analysis is "whether the hearsay declarant had a motive to lie") (internal quotation marks omitted); United States v. Ferri, 778 F.2d 985, 991 (3d Cir. 1985) (same). Nor can one find a "guarantee" of "trustworthiness" in the timing of his statement, for he made it, not contemporaneous with the accident, but, rather, the next morning. Cf. United States v. Vretta, 790 F.2d 651, 659 (7th Cir. 1986) ("[C]lose proximity in time between the statement [describing the event] and the [event] itself lends support to the statement's trustworthiness.") And, I do not see how one can find a special "guarantee" in the fact that his mother testified that he was a very truthful person.

In fact, to permit admission of this statement simply because Nurse Kennedy's note provides some weak, and highly controverted, corroboration is to eliminate any legal requirement of special "trustworthiness." It is, in essence, to read the "residual" hearsay exception as allowing the district court to admit any hearsay for which it finds a special need. Such a reading seems wrong, see United States v. McCall, 740 F.2d 1331, 1342 (Widener, J., concurring) (where evidence of reliability is weak, "[m]ere unavailability ... is an insufficient reason to justify the admissibility of [hearsay] statements"), for it is contrary to the intent of Congress. Indeed, the House of Representatives initially voted not to permit a residual hearsay exception precisely because it feared such a result. See House Comm. on the Judiciary, Report on Federal Rules of Evidence. The House withdrew its opposition only when the Senate narrowed the scope of the exception and instructed courts that it "intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances," Senate Comm. on the Judiciary, Report on Federal Rules of Evidence. The Senate Committee admonished courts applying 804(b)(5) to "exercise no less care, reflection and caution than the courts did under the common law in establishing the now-recognized exceptions to the hearsay rule." Failure by the lower court here to identify specific "guarantees" of the "trustworthiness" of Ronald's statements suggests that the admission of these statements was not preceded by sufficient "reflection and caution."

I can find no case admitting hearsay under circumstances like those present here. Furtado, supra, which involved a lawyer's out-of-court statement made under oath, certainly does not. Nor do United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976) and United States v. Murphy, 696 F.2d 282 (4th Cir. 1982), the other two cases cited by appellee. Carlson and Murphy both involved grand jury testimony which, at least in the case of Murphy, was supported by "strongly corroborative testimony and proof, some of which was unimpeachable." 696 F.2d at 286. Cases admitting hearsay under Rule 804(b)(5) involve substantially greater guarantees of reliability than those present here. See Weinstein's Evidence 804(b)(5)[01], at 804-173 n.3 (collecting cases)....

Since I believe the Federal Rules of Evidence do not permit admission of Ronald's hearsay statements and that their admission was not harmless, I must dissent.

1. 5. Appellant contends that because Ronald functioned at a twelve year old level and had been told on numerous occasions not to get out of bed without help, it was likely that he would make up a story so he would not be blamed for what happened.

2. 6. Our dissenting brother stresses that the eleven hour passage of time between Ronald's fall and his statement to his mother means that the statements were not contemporaneous. Although the length of time is not so short as to insure its reliability, it does not necessarily indicate inaccuracy. The amount of time that elapsed is just one of many factors that the district court judge considered in admitting the testimony. Courts have admitted statements under this exception that were made a much longer time after the incident than the one at issue here. See, e.g., United States v. Van Lufkins, 676 F.2d 1189 (8th Cir. 1982) (up to a week passed between the event and the hearsay statement to the witness) (cited with favor in United States v. Vretta, 790 F.2d 651, 659 (7th Cir. 1986); Furtado v. Bishop, 604 F.2d at 91 (affidavit admitted although written more than eight months after incident). In addition, the conversation at issue was the first time that the Brookovers were able to speak with Ronald after his fall.

3. 7. Indeed, in light of the nurse's notations as to how the accident happened, it is hard to understand why Mrs. Brookover's testimony was offered.


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