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Evidence Outline - Professor Tilly - Campbell Law - Part 19

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

< Part 18

NC 413 Medical Actions; Statements to Ameliorate or Mitigate Adverse Outcome. Statements by a health care provider apologizing for an adverse outcome in medical treatment, offers to undertake corrective or remedial treatment or actions, and gratuitous acts to assist affected persons shall not be admissible to prove negligence or culpable conduct by the health care provider in an action brought under Art. 1B of Ch. 90 of the General Statutes.

  • “Gratuitous acts” is broadly defined
    • “Affected person” doesn’t have to be the actual patient

Bryce Allen, a surgeon who works for Rex Hospital was driving home from the hospital. As he was driving, he was dictating patient files and failed to notice the light had changed to red. He drove through the intersection, colliding with Kim Dixon in her Cadillac Escalade. Dr. Allen jumped out of the car and said, “Oh no. I’m so sorry! I completely missed that light; I was dictating while driving. I’m so sorry.”

  • Not dealing with medical treatment → admissible

Bryce Allen, a surgeon who works for Rex Hospital in Raleigh, N.C., operated on Kim Dixon’s knee. Before closing the incision, Dr. Allen failed to remove two sponges from the patient. After she returned three months later with excruciating pain, Dr. Allen said, “Oh no. I’m so sorry! I completely missed removing the sponges from your knee! I’m so sorry.”

  • Apologizing for adverse outcome in medical treatment → inadmissible

Bryce Allen, a surgeon who works for the federal V.A. hospital, operated on Kim Dixon’s knee. Before closing the incision, Dr. Allen failed to remove two sponges from her knee. After she returned three months later with excruciating pain, Dr. Allen said, “Oh no. I’m so sorry! I completely missed removing the sponges from your knee! I’m so sorry.”

  • (federal hospital) → admissible

FRE 410. Pleas, Plea Discussions, and Related Statements.

A. Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (note- only applies if against the defendant!!!)

  1. a guilty plea that was later withdrawn;
  2. a nolo contendere plea;
  3. a statement made during a proceeding on either of those pleas under FRCP 11 (plea hearing) or a comparable state procedure; or
  4. a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea.
    1. (need an actual prosecutor in there for this to apply!!)

B. Exceptions. (If subject to exception) can be admitted:

  1. In any proceeding in which another statement made during the same plea or plea discussion has been introduced, if in fairness the statements ought to be considered together (comparable to Rule of Completeness); or
  2. In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
    • NO IMPEACHMENT EXCEPTION
    • Rule does not apply to statements made during guilty/nolo plea discussions that are not withdrawn
    • Rule does not apply to statements offered against a DIFFERENT defendant

Robert Kraft is accused of conspiracy to engage in human trafficking, a federal offense. The AUSA meets with Kraft and his lawyers before trial. In the discussions, Kraft acknowledges that he paid for sex acts on at least three different occasions at the Orchids of Asia Day Spa. Prosecutors offer Kraft a plea deal whereby he would admit to a lesser charge of engaging in trafficking activities but nothing less. Kraft rejects the deal. A jury later convicts Kraft on all charges. At the sentencing hearing, the AUSA seeks to offer Kraft’s statement made during plea discussions about the number of acts he engaged in. Kraft’s lawyers object to hearsay and inadmissible statements made during a plea negotiation.

  • Sentencing hearing → rules of evidence don’t apply

Jack Skaggs is a lawyer in Austin. After ten years he had still not made partner. Disgruntled, Skaggs begins turning in expense reports based on “client dinners and development” which, in fact, never occurred. Skaggs received reimbursements in the U.S. mail of over $15,000. • The firm’s CPA begins scrutinizing all expense reports and suspects Skaggs of embezzlement. He contacts the FBI which confirms. • Skaggs and his lawyer meet with federal prosecutors. In the meeting they discuss an agreement whereby Skaggs will plead guilty to one but not three counts of federal mail fraud. During the meeting, Skaggs says, “Look, I filed four false reports each year; but the firm undercut my salary and didn’t promote me. It’s not like I didn’t have a reason.”

  • At the Rule 11 plea hearing, prosecutors offer Skaggs’ statement. Defense counsel objects as inadmissible hearsay and FRE 410. Admissible?
    • Rule 11 plea hearing → not subject to rules of evidence
  • After the plea is rejected by the judge, prosecutors offer the statement at trial. Defense counsel objects as inadmissible hearsay and FRE 410.
    • Rule applies → inadmissible

FRE 411. Liability Insurance. Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Negligence action by plaintiff against the owner of a grocery store. P claims injuries from falling on the slippery floor of the store’s produce department. To prove D negligently permitted the store to become slippery, P wishes to offer evidence that the D was covered by a slip & fall policy of insurance. Defendant objects. How should the court rule?

  • Not BER b/c not contents & not a controlling issue → Inadmissible under FRE 411?
    1. Yes

Same case. D claims the produce section is stocked and maintained by a separate company hired as an independent contractor. P offers evidence on cross examination of the store manager that D maintains a liability policy covering accidents in the produce section, including slippery floors. D objects.

  • Ownership/control in dispute → admissible b/c other purpose

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