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56. Is the physician's testimony about the husband's statement admissible?
At trial, the plaintiff calls an emergency room physician to testify that when the physician asked the plaintiff's husband if he knew what had happened, the husband, who was upset, replied, «I saw my wife get run over two hours ago by a driver who went right through the intersection without looking.»
A plaintiff has sued a defendant, alleging that she was run over by a speeding car driven by the defendant. The plaintiff was unconscious after her injury and, accompanied by her husband, was brought to the hospital in an ambulance.
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A declaration made by a declarant during or soon after a startling event is admissible as an exception to the hearsay rule. The declaration must be made under the stress of excitement produced by the startling event and must concern the immediate facts of the startling occurrence. Fed. R. Evid. 803(2).
A statement that describes a person's medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for — and was reasonably pertinent to — medical diagnosis or treatment. Fed. R. Evid. 803(4). The cause or source of the injury must be reasonably pertinent to diagnosis or treatment to be admissible, and statements assigning fault or identifying a perpetrator are generally not considered pertinent. Statements by family members and bystanders may be admitted under this exception as long as the statements were clearly made to obtain a diagnosis or treatment for the patient.
B is correct. The statement was made out-of-court and is being offered for the truth of the matter asserted: what happened in the accident, including who was at fault. Because the statement was made to establish the defendant's liability for the accident, it was not for purposes of diagnosis or treatment. The statement was also made two hours after the accident, so it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement. Therefore, the statement is not admissible as an excited utterance, and no other hearsay exception applies.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. An out-of-court statement is not automatically inadmissible simply because it contains an opinion. Statements of opinion by out-of-court declarants may be admitted if they qualify under a hearsay exception and otherwise satisfy the rules governing opinion testimony of in-court witnesses. This statement by the husband, however, is hearsay not within any exception and is inadmissible.
C is incorrect. The rule governing the hearsay exception for statements made for purposes of diagnosis or treatment requires that the statement (s) about the cause of the injury to be reasonably pertinent, which typically does not include statements assigning fault or identifying a perpetrator. Here, the husband's statement that makes an accusation of fault for the accident was not pertinent to the diagnosis or treatment of the plaintiff.
D is incorrect. As explained above, for this statement to be admissible as an excited utterance, the declarant must have been under a continuous state of excitement between the time of the event and the time of the statement. Here, the husband made the statement two hours after the accident, so it is very likely that the state of excitement had passed.