October 17, 2019 Practice Points

Third-Party Affidavit Statements Admissible When Offered to Explain Reactions of Listeners

Trial court finds statements of third-parties in affidavit submitted to oppose summary judgment motions as hearsay are admissible when not offered to prove the truth of the matter asserted in such statements.

By Kenneth Klemm

The U.S. District Court for the District of Massachusetts, in Reynolds v. Steward St. Elizabeth’s Medical Center of Boston, Inc., 364 F. Supp. 3d 37 (D. Mass. 2019), recently addressed several evidentiary issues in the context of deciding summary judgment motions. In doing so, the court provided guidance on the parameters of admissible evidence and, in particular, when statements from an affidavit may be permitted even if objected to as hearsay.

Litigators sometimes fail to consider the sufficiency of evidence to support or to oppose a summary judgment motion. Like a trial, evidence submitted in connection with a summary judgment motion must meet the standards applicable in federal or state courts. Testimony or other evidence objected to as hearsay may be admissible if offered for a purpose other than the truth of the matter asserted. Therefore, evidence submitted to support or to defeat a summary judgment should be considered as carefully as evidence introduced at a trial.

Michael Reynolds, a former hospital employee, sued the hospital, alleging he had been terminated without just cause. In addition, Reynolds sued the hospital employees’ labor union, alleging that the union did not provide him fair representation in disputing such termination. Both the hospital and the union filed summary judgment motions seeking dismissal of the employee’s claims, as well as a joint motion by both defendants seeking to strike some of the evidence submitted by Reynolds in the form of an affidavit to oppose the summary judgment motions.

The court specifically addressed objections to a number of statements in Reynolds’ affidavit that the defendants’ contended to be inadmissible as hearsay statements made by third parties. Id. at 54. After listing each of the statements in its opinion, the court considered Reynolds’ contentions that the statements were not hearsay because of not being offered to prove the truth of the matter asserted in the statements. Id. at 54-56. The court further noted that under Rule 54(c)(4) of the Federal Rules of Civil Procedure, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). The Reynolds court specifically held the statements to be “‘verbal acts’ and offered, not to show the truth of the matters asserted, but for the fact that the statements were made.” Id. at 56 (citing Rivot-Sanchez v. Warner Chilcott Co., 707 F. Supp. 234, 261 (D.P.R. 2010)). Moreover, the court found the statements to be admissible to show the effect on the listener. Id.; (citing U.S. v. Cruz-Diaz, 550 F.3d 169, 176-77 (1st Cir. 2008)). Consequently, the court denied the motion to preclude these statements from being offered in opposition to the summary judgment motions.

A further objection by the defendants to the affidavit contended other statements to not be admissible because of failing to be based on personal knowledge. In this instance, the court agreed that affidavits must be based on personal knowledge but, even if self-serving, may be competent to support or to defeat summary judgment if the affidavit contains first-hand knowledge. Reynolds, 364 F. Supp. 3d at 56. The court allowed these statements, finding that

Reynolds had been present for the statements or held sufficient knowledge for the statements to be accepted. Id. at 57. Nevertheless, the court did strike a number of other statements based on the statements being argumentative or conclusory. Hence, the court ultimately granted in part and denied in part the defendants’ motion to strike statements offered in the affidavit.

Kenneth Klemm is a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in New Orleans, Louisiana.

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