Indiana Law Update Blog - Price Waicukauski & Riley Legal Blog

Parties Do Not Always Need to Renew Their Objections

Evidence

January 20, 2012

Recently, the Seventh Circuit dealt with a Daubert challenge to an expert's opinion in Messner v. Northshore Univ. Healthsystem, ___ F.3d ___ (7th Cir. 2012), Case No. 10-2514. On appeal, that expert's proponent argued that there had only been a motion to strike the initial report, and not the expert's later testimony and supplemental report, so the objection to this evidence was waived. The Court disagreed because it found the initial objection was sufficient to preserve the issue for appeal.

The district court repeatedly put off dealing with the substance of these objections. Plaintiffs' objections gave the district court and defendant ample opportunity to address the issues. Where the district court repeatedly put off dealing with the issues, plaintiffs did not need to renew their unsuccessful objection every time the same witness attempted to provide additional information.

The best practice is, of course, to object to the introduction of objectionable evidence every time it is introduced. However, the court's decision shows that appellate courts will apply waiver rules in a common-sense manner, so that issues will not be waived unnecessarily.

Lesson:

When a district court puts off dealing with an objection, the objecting party need not renew its objection every time the same witness attempts to provide additional evidence.

Brad A. Catlin
Price Waicukauski & Riley, LLC
Learn more about Brad and contact us

TAG 7th Circuit, Evidence, Objection, Waiver

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A Court Cannot Exclude Evidence Because It Is Self-Serving

Procedure/Summary Judgment

August 29, 2011

In Reed v. City of Evansville, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 82A05-1012-PL-768, Evansville sought to have some of the evidence the Reeds submitted in opposition to the City's motion for summary judgment because it was "self-serving." Today, the Court of Appeals clearly stated that parties should not make this same objection in the future.

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The Reeds filed a claim against Evansville and Evansville moved for summary judgment, arguing that the notice was not timely under the Tort Claims Act. The trial court granted that motion and the Reeds appealed.

On appeal, the Court held that the trial court erred when granting summary judgment to the City, because there were genuine issues of material fact. The court then addressed the City's cross-appeal, which challenged the trial court's denial of the City's motion to strike some of the Reeds' evidence. The City moved to strike some of that evidence because it was "self-serving." The Court had none of it.

We first consider the City's challenge to the Reeds' assertion in their brief in opposition to summary judgment that only in April 2008 did they first become aware that the mold might have been caused by the sewer. The City characterizes this assertion as selfserving, but a brief in opposition should advocate the party's position, and accordingly can be "self-serving" so long as it is based on the designated evidence. In some sense, all evidence and legal argument is self-serving because it advances a party's position; without more, this is not a basis to exclude relevant evidence, and an especially improper basis to exclude portions of a brief in opposition to summary judgment. To the extent it relies on evidence that is "self-serving," "[t]he self-serving aspect of such evidence only affects its weight." Am. United Life Ins. Co. v. Peffley, 158 Ind. App. 29, 37, 301 N.E.2d 651, 656 (1973), rejected on other grounds by C.T.S. Corp. v. Schoulton, 270 Ind. 34, 38, 383 N.E.2d 293, 295 (1978).

Of additional interest is the Court's rejection of another objection, based on the argument that the affidavit of Reeds' expert lacked essential detail.

To the extent the City challenges Schweickart's affidavit as lacking essential detail, we note that a lack of detail might affect the weight and credibility of an opinion and not its admissibility. See Jordan v. Deery, 609 N.E.2d 1104, 1111 (Ind. 1993). The trial court properly did not strike Schweickart's affidavit.

The lesson here? Don't bother objecting to evidence at the summary judgment stage if the objection only goes to the weight of the evidence, not its admissibility. Such an objection will get you nowhere.

Lessons:

Evidence should not be excluded at summary judgment simply because it is self-serving.
An affidavit should not be excluded at summary judgment simply because it lacks sufficient detail.

Brad A. Catlin
Price Waicukauski & Riley, LLC
Learn more about Brad and contact us

TAG Affidavit, Evidence, IN Court of Appeals, Self-Serving, Summary Judgment

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Evidence of Acquittal Not Admissible in a Civil Action

Evidence

April 25, 2011

Today, the Indiana Court of Appeals issued an opinion dealing with what appears to be an issue of first impression in Indiana - can a party to a civil case present evidence that he was acquitted in a criminal case involving the same facts? In Sigo v. Prudential Prop. & Cas. Ins. Co., ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 25A03-1008-PL-406, the Court held that such evidence was inadmissible under Rule 403.

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In this case, Sigo brought an action against Prudential to recover for the fire loss of his home. Concurrent with that civil litigation, he was charged and tried for arson for the same fire that was the cause of his claim. A jury acquitted him of those charges. Prudential filed a motion in limine seeking to exclude any evidence of Sigo's acquittal and the trial court granted that motion. The trial court then certified the issue for an interlocutory appeal.

On appeal, the Court noted that no Indiana reported case had addressed the extent to which evidence of acquittal was admissible in a civil case. However, it noted that cases from other jurisdictions supported the trial court's decision. Sigo argued that evidence of his criminal trial would show bias, prejudice, or adverse interest of Prudential's witnesses. However, he failed to explain how those witnesses' prior testimony creates a substantial bias or adverse interest.

While Sigo's ability to make these uses of his criminal trial and acquittal is not central to proving his theory of the civil case, the potential prejudice to Prudential from the jury's improper use of his acquittal goes directly to the ultimate issue Prudential must prove to make its case – that Sigo intentionally set the fire. Thus, if evidence of Sigo's criminal trial and acquittal were permitted, it would create a substantial risk to Prudential of unfair prejudice in the form of the jury deciding the case based on improper inferences.

The Court's decision is not surprising. As Prudential argued, an acquittal is not a positive finding of innocence; it is a negative judgment that the State's burden of proof beyond a reasonable doubt was not met. Because the standard of proof in a civil case is much lower, a powerful case can be made that evidence of an acquittal is simply not relevant to the question of civil liability. What is interesting about this case, however, is that the Court did not base its judgment on this rationale, leaving room for litigants to make the fact of acquittal admissible upon a showing that the evidence is sufficiently probative.

Lessons:

Evidence of a prior acquittal can be probative, but its proponent needs to demonstrate that the probative value of this evidence is not substantially outweighed by its prejudicial impact.

Brad A. Catlin
Price Waicukauski & Riley, LLC
Learn more about Brad and contact us
Download a copy of this article here

TAG Acquittal, Evidence, IN Court of Appeals, Probative, Rule 403

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Make Sure to Use the Right Witnesses

Evidence

April 12, 2011

Today, the Indiana Court of Appeals issued a memorandum decision, uncitable as authority under App. R. 65(D), that provides a lesson in how to prove the elements of a claim in Tichenor v. Dodson, Cause No. 07A01-1006-PO-285.

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Lessons:

Make sure that you have the evidence necessary to support every element necessary to prove in order to obtain the relief you are seeking.

Brad A. Catlin
Price Waicukauski & Riley, LLC
Learn more about Brad and contact us
Download a copy of this article here

TAG Civil Protection Order, Evidence, IN Court of Appeals

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Affidavit of Deceased Witness Found to Be Admissible

Evidence

November 18, 2010

Today, the Indiana Court of Appeals addressed an interesting evidentiary question in Cotton v. Auto-Owners Ins. Co., 937 N.E.2d 414 (Ind. Ct. App. 2010), Case No. 49A02-1005-CT-575. At issue was whether an affidavit of a deceased person was admissible evidence in support of a motion for summary judgment. The Court held that it was, because the party seeking to strike that affidavit did not prove that the same evidence would not be admissible at trial from another source.

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In this case, a passenger in a single car accident sued the driver. The car had been recently purchased and not yet registered in the driver's name. The driver's grandfather owned and operated an automotive sales business, which was insured by a "garage policy" that covered damages "caused by an occurrence and arising out of garage operations." The grandfather had supplied a temporary license plate to the driver, but the driver was not an employee or otherwise affiliated with the garage. The injured passenger sued the driver, his grandfather, the garage, and the insurer.

In the course of discovery, the passenger sought to take the grandfather's deposition but was informed the grandfather was in failing health. Shortly thereafter, the passenger was informed that the grandfather had died. The passenger and insurer then filed cross-motions for summary judgment. In addition, the passenger sought to strike the grandfather's affidavit. The trial court denied the motion to strike and granted the insurer's motion for partial summary judgment. The passenger appealed.

On appeal, the Court first decided that the trial court properly concluded that the garage policy does not cover the vehicle in question or the injuries the passenger sustained in the accident. It then turned to whether the trial court erred in denying the motion to strike.

The Court held that the Indiana Supreme Court's decision in Reeder v. Harper, 788 N.E.2d 1236, 1241-42 (Ind. 2003), which held that "an affidavit that would be inadmissible at trial may be considered at the summary judgment stage of the proceedings if the substance of the affidavit would be admissible in another form at trial," applies to all affidavits, not just expert affidavits. Thus, in order to strike the affidavit, the passenger needed to describe what statements in the affidavit are inadmissible under Reeder because the same evidence would not be admissible at trial from another source. The Court demonstrated that Reeder provides a generous standard for determining admissibility.

To the extent the statements in the affidavit regard the operations of the Dealer, including its inventory, sales, and employees, the Dealer's business records or the testimony of a Dealer employee would be admissible proof of such matters. Thus, the trial court did not abuse its discretion when it refused to strike those portions of the Bailey Affidavit. Cotton also argues that the Bailey Affidavit was used to establish facts based on Bailey's "personal knowledge which cannot be substantively reproduced because no other witness has the same personal knowledge foundation." To the extent Cotton's argument refers to Bailey's conversation with Sneed about the temporary license plate, Sneed could testify on that matter. Thus, that evidence is also admissible at trial from another source.

The takeaway from this case is that it will be very difficult for a party to strike any affidavit an opposing party presents in support of a motion for summary judgment because it contains evidence that will not be admissible at trial. If you do try to strike an affidavit on these grounds, make sure to find some portions of that affidavit that would only be known by the affiant.

Lessons:

An affidavit submitted in support of a motion for summary judgment can only be stricken as containing information that is inadmissible if there is no other form in which that evidence would be admissible at trial.

Brad A. Catlin
Price Waicukauski & Riley, LLC
Learn more about Brad and contact us
Download a copy of this article here

TAG Affidavit, Evidence, IN Court of Appeals, Inadmissible, Summary Judgment

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5 entries in 'Evidence'

Parties Do Not Always Need to Renew Their Objections

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A Court Cannot Exclude Evidence Because It Is Self-Serving

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Evidence of Acquittal Not Admissible in a Civil Action

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Make Sure to Use the Right Witnesses

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Affidavit of Deceased Witness Found to Be Admissible

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