EVIDENCE UPDATE
“Hearsay & Objections at Arbitration”
Jack Cannon
THE HEALY LAW FIRM
Peter Stavropoulos
BRADY, CONNOLLY & MASUDA
HEARSAY
• Rule 801(c) of the Illinois Rule of Evidence
defines hearsay as “a statement other than
one made by the declarant while testifying at
the trial or hearing offered in evidence to
prove the truth of the matter asserted.”
HEARSAY
• The question is whether it’s offered for the
truth of the matter asserted or whether it falls
under a hearsay exception.
HEARSAY
Mary testifies at arbitration: “I heard John say
that Tom ran the red light”
• If offered by Mary to determine the issue of whether
or not Tom ran the red light, it is hearsay because we
cannot cross examine John
• If it is offered by Mary to establish that John was
awake, than it is not hearsay because we can cross
examine Mary as to whether she actually heard John
speak
HEARSAY
• The decision to admit or exclude evidence is
left to the sound discretion of the trial judge
HEARSAY
Non-Hearsay Under 801(d)
• Admission by a party opponent
• Person authorized by the party
HEARSAY
• Section 12 report is not an admission by a party
opponent.
• Nollau Nurseries (1965) – Illinois Supreme Court says
admissible as agent
• Taylor (1994) – Not admissible. Hired medical expert
is not an agent per se
• Basis – Hiring party may have influence, but not
control
HEARSAY
• Greaney v. Industrial Comm’n
• Numerous cases that have held that a party’s
independent medical expert is not an agent
per se
Rule 803 Hearsay Exceptions
• There are 24 hearsay exceptions
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1. Reserved
2. Excited Utterance
3. Then Existing Mental, Emotional, or Physical Condition
4. Statements for Purposes of Medical Diagnosis or Treatment
5. Recorded Recollection
6. Records of Regularly Conducted Activity
7. Absence of Entry in Records Kept in Accordance With the Provisions
of Paragraph 6
8. Public Records and Reports
9. Records of Vital Statistics
10. Absence of Public Record or Entry
11. Records of Religious Organizations
12. Marriage, Baptismal, and Similar Certificates
Rule 803 Hearsay Exceptions
• There are 24 hearsay exceptions
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13. Family Records
14. Records of Documents Affecting an Interest in Property
15. Statements in Documents Affecting an Interest in Property
16. Statements in Ancient Documents
17. Market Reports, Commercial Publications
18. Reserved. [Learned Treatises]
19. Reputation Concerning Personal or Family History
20. Reputation Concerning Boundaries or General History
21. Reputation as to Character
22. Judgment of Previous Conviction
23. Judgment as to Personal, Family or General History, or Boundaries
24. Receipt or Paid Bill
Rule 803(4)
STATEMENTS FOR PURPOSES OF MEDICAL
DIAGNOSIS OR TREATMENT
• Rule 803(4) of the Illinois Rules of Evidence codifies a
hearsay exception:
– Statements made for purposes of medical treatment, or
medical diagnosis in contemplation of treatment, and
describing medical history or past or present symptoms,
pain, or sensations, or the inception or general character
of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment but subject
to Rule 703, not including statements made to a health
care provider consulted solely for the purpose of preparing
for litigation or obtaining testimony for trial….
Rule 803(4)
STATEMENTS FOR PURPOSES OF MEDICAL
DIAGNOSIS OR TREATMENT
• Statements for Purposes of Medical Diagnosis or Treatment
• Statements made for purposes of medical diagnoses or
treatment including description of the cause of symptom,
pain or sensations
• Statements of causation in treatment records – admissible?
• Petitioner’s position – no exception created within rule –
therefore admissible
Rule 803(4)
STATEMENTS FOR PURPOSES OF MEDICAL
DIAGNOSIS OR TREATMENT
• The respondents’ counter argument is that a
statement of causation has nothing to do with
treatment – not usually a Statement for
Purposes of Medical Diagnosis or Treatment
• The Court in Fencl-Tufo allowed records in
over a hearsay objection because they were
not created in anticipation of litigation
Rule 803(4)
STATEMENTS FOR PURPOSES OF MEDICAL
DIAGNOSIS OR TREATMENT
• Respondents’ argue that causation opinions in
the treating records are only there in
anticipation of litigation
• Therefore, these opinions make the records
not inherently trustworthy and inadmissible
hearsay. Fencl-Tufo Chevrolet, Inc., v.
Industrial Comm’n, 523 N.E.2d 926, 929-30 (1st
Dist., 1988)
Recorded Recollection
•
Hearsay exception 803(5)
• Employer accident reports would fall under
this exception, as long as a foundation is laid
by the individual who made the report
• Only by author
803(6) Records of Regularly
Conducted Activity
• Commonly referred to as the “Business Record”
exception
• The rule is premised on the concept of routineness
• Need not be author, can be custodian or another
qualified witness
• Supreme Court Rule 236
803(7) Absence of
Entry in Records
• The absence of entry in records kept in
accordance with the provision of paragraph(6)
• e.g. attendance records, wage statements
Experts Rule 703
• An expert may base his or her opinion on facts or
data made known to him or her at or before the trial
• The facts or data need not be admissible in evidence
in order for the opinion to be admitted. Wilson v.
Clark
• Regularly relied upon by professionals in the field
Hypothetical Questions
• Hypothetical questions are no longer required
to elicit the experts opinion.
• Rule 705:
The expert may testify in terms of opinion
or inference and give reasons therefor
without first testifying to the underlying
facts or data, unless the court requires
otherwise
• The expert may in any event be required to
disclose the underlying facts or data on cross
examination
Doctor’s Depositions
• Submitting a doctor’s report at the time of his
deposition is hearsay and improper
• Self-serving and improper bolstering
§13:10 Photographs
• Witness has personal knowledge
• Accurate depiction of the subject matter
• Does it assist the finder of fact?
§15:90 Charts, Diagrams,
Graphs or Maps
• Layperson may use or draw a map to describe
where an incident occurred
• Blackboards may be used to aid a witness in
testifying about an occurrence
Objections:
The most common
objections made
at the Illinois
Workers’
Compensation
Commission
Screen from an actual video game, Objection!
MOST COMMON OBJECTIONS TO
QUESTIONS
LEADING
• Defined – A
question that
suggests the
desired answer
to the witness
LEADING
• Improper on direct examination with exceptions:
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Permissible for preliminary questions
Permissible for child witnesses
Permissible for adverse or hostile witnesses
Permissible for questions regarding undisputed issues
To lay a foundation
Can be waived
• Proper on cross-examination and re-direct
examination
FORM OF THE
QUESTION/VAGUE
• Usually asserted to make a clear record
• Objection raised in response to:
– Compound question
– Confusing question
– Question asking the witness to speculate
CALLS FOR SPECULATION
• Questions asking the witness to speculate are
improper
– Basis – Cases must be decided on facts, not
guesswork
CALLS FOR SPECULATION
• Lay-witnesses are allowed to give
estimates on certain issues
– Examples
• Distance
• Time
• Speed
• Age
CALLS FOR SPECULATION
• Expert testimony treated differently
• Greater latitude given and questions asking
for speculation can be permitted
– Basis – An expert’s speculation is based on her
expertise and experience
ASKED AND ANSWERED
• Improper because
– Wastes time of the court
– Places undue emphasis on answers
• Applies to both direct and cross examination
IRRELEVANT
• Relevant defined:
– Evidence that has, “any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable than it
would be without the evidence.” FRE 401
• Definition defined:
– Is the evidence a fact that helps the trier of fact
decide the case?
IRRELEVANT
• Is the fact “of consequence?”
• Does the evidence help the arbitrator make a
decision relative to the case?
IRRELEVANT
• Relevant evidence can still be excluded at the
court’s discretion if probative value is
substantially outweighed by considerations
such as:
– Unfair prejudice
– Confusion
– Delay
– Waste of time
BEYOND THE SCOPE
• Cross-examination and re-direct examinations
are limited to
– Subject matter of direct
– Credibility of witness
• Rebuttal testimony only proper when it
contradicts substantial evidence previously
presented by opposing counsel
CALLS FOR A HEARSAY
ANSWER
• Counsel anticipates a
hearsay answer
• Question prompts
witness to testify about
an out-of-court
statement to prove the
truth of the matter
asserted
MOST COMMON
OBJECTIONS TO ANSWERS
HEARSAY
• Answer includes testimony regarding an outof-court statement being offered to prove the
truth of the matter asserted
• Does not fall under one of the exceptions
NARRATIVE
• Why is it objectionable?
– Allows a witness to provide inadmissible evidence
without giving opposing counsel a chance to make
a timely objection
NARRATIVE
• Court has discretion as to how much latitude
to give witness
• Opposing counsel may waive objection for
strategic reasons
UNRESPONSIVE
• Defined:
– An answer that does not directly respond to the
question
• Improper testimony if the answer goes
beyond what is necessary to respond to the
question
• Only the party calling the witness can make
the objection
OPINION
• Only proper when:
– Witness has been properly qualified as an expert
– Area is one in which specialized knowledge will
assist the trier of fact
OPINION
• Lay-witnesses can testify regarding an opinion
only when:
– Based on witness’ perception of an event
– Is helpful to the trier of fact in understanding the
facts
MOST COMMON
OBJECTIONS TO EXHIBITS
HEARSAY
• The basis for excluding evidence under the
hearsay rule is that an opportunity to
ascertain the veracity of the statement is
absent
• As discussed, causation opinions in treating
records are commonly objected to as hearsay
statements made in anticipation of litigation
IRRELEVANT
• Is the evidence a fact of
consequence that helps the trier of
fact render a decision on an issue?
FOUNDATION
• Proper foundation must be established to
survive an objection
• Every exhibit must meet three requirements
before it can be admitted into evidence
– Qualifying witness must be competent
– Exhibit must be relevant
– Exhibit must be authenticated
FOUNDATION
• Authentication:
–Establishing that the exhibit is what
it purports to be
FOUNDATION
• Each type of evidence requires its
own foundation
• Most common foundation objection
at arbitration - surveillance video
FOUNDATION
• Elements necessary to lay foundation for sound/video recordings
– Recording is relevant
– Recording machine was tested before being used and was in normal
operating condition
– Recording machine used can accurately record and reproduce
sound/images
– Operator was experienced and qualified to operate the recording
machine used
– Witness heard/saw what was being recorded
– After the recording was made, the operator replayed the tape and the
tape accurately recorded the sound/images
– Tape was labeled and sealed and secured to guard against tampering
until removed for trial
– Recording machine in court is in normal operating condition and can
accurately reproduce the sound/images on tape
– Witness recognizes and can identify the images and sounds on the
tape
FOUNDATION
• Time consuming process
• Can require up to three witnesses
– Qualify machines and recordings
– Demonstrate the custody of the tape
– Identify the images on the tape
• Can be waived if no objection is raised or by
agreement
MEDICAL RECORDS: CERTIFIED
OR SECURED PURSUANT TO
SUBPOENA
• Pursuant to Section 16 of the Act, if records
are neither certified nor secured via subpoena
they are inadmissible
• Securing records by subpoena creates a
rebuttable presumption that they are
complete and accurate
OFFER OF PROOF
• When an objection successfully excludes
evidence or testimony, the attorney should
make an offer of proof
• Goals:
– May persuade arbitrator to reverse ruling
– Creates a record for reviewing Commission/Court
OFFER OF PROOF
• When excluded evidence is testimony
– Attorney can tell the arbitrator what the
testimony will be, either by narrative or in a
question-answer format
– Use the witness and continue with the
examination of the witness using the same
questions to which objections had been sustained
OFFER OF PROOF
• When excluded evidence is an exhibit
– Attorney will ensure that the exhibit is made a
part of the record
– Arbitrator will ignore it when issuing decision
OFFER OF PROOF
• Allows reviewing Commission/Court to:
– Determine whether the evidence was properly
excluded
– If so, consider whether exclusion was reversible
error
– Because of its jurisdiction, the Commission can
consider improperly excluded evidence when
reaching its decision
BEST EVIDENCE RULE
• More accurately called the “Original
Document Rule”
• Codified by Illinois Rules of Evidence, Rule
1002 and 1003
BEST EVIDENCE RULE
• Duplicates are admissible to the same extent
as the original unless:
– Genuine question as to the authenticity of the
original
– Under the circumstances, it would be unfair to
admit the duplicate instead of the original
RELEVANT CASE LAW
EVIDENTIARY RULINGS THAT HAD
A SIGNIFICANT IMPACT ON
HOLDINGS
Napoletano v. Rehabilitation Institute
of Chicago, 12 IWCC 0999 (2012)
• Petitioner’s counsel objected to deposition of Section 12 doctor
being admitted into evidence, as well as to testimony regarding the
questions asking petitioner about his pre-injury and post-injury
symptomatology
• Objection was based on the argument that petitioner’s counsel was
not present during the “interrogation”
• Arbitrator allowed the deposition transcript in, but sustained the
objections made during the deposition regarding the history
obtained
• Commission affirmed decision to allow transcript into evidence, and
reversed the arbitrator regarding the exclusion of the testimony
surrounding the history obtained
• Commission held Section 12 examiner is allowed to ask questions
regarding the petitioner’s medical history even if petitioner’s
attorney and a court reporter are not present
Szewczyk v. Advanced Wire Products,
08 IWCC 0430 (2008)
• Arbitrator found that petitioner fell into the “odd lot”
category for permanent total disability, based in part on
petitioner’s Social Security award
• Respondent objected to the award on the basis of hearsay,
arguing there was no exception under which the document
fell
• Commission found the arbitrator erred in allowing the Social
Security award into evidence and citing it in his decision.
• Commission held that petitioner was entitled to maintenance,
and ordered respondent to issue a written assessment of
petitioner’s vocational rehabilitation prospects
Yeater v. US Food Service,
09 IWCC 1336 (2009)
• Respondent raised two objections to a letter
by petitioner’s family physician
– Hearsay
– Letter was made in anticipation of litigation
• Arbitrator overruled respondent’s objections
and allowed petitioner’s attorney to introduce
the letter into evidence
Yeater v. US Food Service,
09 IWCC 1336 (2009)
• Commission ruled that the letter was prepared for the
purpose of litigation and the arbitrator erred in allowing the
introduction of the letter over respondent’s objection
• With respect to the hearsay objection, the Commission found
that the letter did not fall under the business record exception
and found that the arbitrator erred in allowing the letter on
this basis
• Commission ruled that the letter should be stricken from the
record and should not be considered as part of the evidence
for that claim
Bolden v. Support Systems and Services,
07 IWCC 1209 (2007)
• Commission determined that the arbitrator improperly
admitted and relied upon hearsay evidence in relation to a
number of documents.
• A report by Inspector General, a witness statement, a
statement from an interview, investigator’s notes of the
interviews with witnesses and a witness’s daily journal
• Commission found that the testimony of regarding what
witnesses to an altercation may have said was inadmissible
hearsay
• Commission found that it was, in fact, proper to admit an
investigator’s notes of her interview with petitioner as
admissions
Pfohl v. Monica Swalley, d/b/a the Gold Room,
10 IWCC 0119 (2010)
• Commission rejected petitioner’s claim that the
arbitrator erred in barring statements made by
deceased petitioner in the presence of testifying
witnesses
• Commission found that the testimony that petitioner
wished to introduce was barred by respondent’s
hearsay objections
• Review of the record indicated that the arbitrator
correctly sustained the hearsay objection
Helmick v. Royse & Brinkmeyer Apts.,
10 IWCC 0289 (2010)
• Petitioner testified that, after suffering an injury, she informed her coworkers that she could not lift any more buckets
• Robert Glasa, Respondent’s chief operating officer, testified for
respondent and stated that another witness, Harris, had reported that
petitioner was insubordinate
• Commission found that the only evidence of petitioner’s alleged offending
volitional conduct came through the conclusory statements of Harris,
through Glasa, that petitioner was insubordinate
• Commission determined that respondent correctly argued that Harris’
statements may have been admitted to show their effect on Glasa, and to
explain his subsequent action in terminating petitioner, but held that
admission on that basis did not legitimize their consideration for purposes
of proving the fact of petitioner’s alleged insubordination
• For that purpose, the statements remained inadmissible hearsay
Westin Hotel v. Industrial Comm’n of Ill.,
865 N.E.2d 342 (1st Dist., 2007)
• Petitioner offered into evidence respondent’s
Section 12 exam report, which was admitted
into evidence over respondent’s hearsay
objection
• Court held that a report by an independent
medical expert retained by the employer to
examine petitioner was not an admission
against the employer’s interest
• The Court held the report was hearsay and
inadmissible
City of Chicago v. Workers’ Compensation Comm’n,
899 N.E.2d 1247 (1st Dist., 2008)
• The Appellate court held that the Commission committed
reversible error when it excluded the independent medical
examination (IME) report from the employer’s physician on
the basis that the IME was not tendered to the petitioner’s
attorney before the treating physician’s deposition.
• The Court determined that the IME was not conducted until
after petitioner’s physician’s deposition, and that the IME
report was tendered to petitioner a few days after the
examination and well before the arbitration hearing
• The court found that this satisfied the statute requiring
exchange of IME reports no later than 48 hours before a case
was set for hearing, the purpose of which was to prevent
surprise medical testimony at the arbitration hearing
United Airlines v. Workers’ Compensation Comm’n,
942 N.E.2d 711 (2011)
• The Appellate Court held that proffered
testimony of employer’s expert witness
concerning when petitioner would be
expected to exit the work force was irrelevant
to determination of wage differential benefits
and was properly excluded
• The Court determined that the term,
“disability” in the statute governing wage
differential benefits referred to physical and
mental disability, and not economic disability
Mulligan v. Illinois Workers’ Compensation Comm’n,
946 N.E.2d 421 (1st Dist., 2011)
• Petitioner appealed a decision awarding him 12 weeks of TTD
and 50% of the person as a whole in permanency benefits
• On review, the Commission admitted testimony of a physician
who was not even retained to perform a records review until
after the arbitration hearing had commenced
• The Appellate Court found that this was a violation of the
Act’s rules requiring disclosure of the report of a medical
expert at least 48 hours in advance of hearing
Mulligan v. Illinois Workers’ Compensation Comm’n,
946 N.E.2d 421 (1st Dist., 2011)
• The Court further determined that when a party objects to
the admission of medical testimony on the grounds that this
section of the Act has been violated, then the proponent of
the medical testimony has the burden of proving compliance
with the Act
• Allowing the employer to take the physician’s evidence
deposition after the start of the arbitration hearing without
requiring employer to show good cause violated the Act.
• The Court further held that the Commission’s error in
admitting the testimony of two medical experts, despite the
fact that their reports were not timely furnished to petitioner,
was not harmless, and vacated the Commission’s decision
QUESTIONS/DISCUSSION