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Nucci v. Proper

95 N.Y.2d 597 Court N.Y. Decision date 2001-02-08 English

Delivered by Wesley, J.

Contents

Majority

p. 597
[744 NE2d 128, 721 NYS2d 593]
Joseph V. Nucci, by His Guardian, Linda Nucci, et al., Appellants, v Gilbert P. Proper et al., Respondents.
Argued January 4, 2001;
decided February 8, 2001
p. 598
POINTS OF COUNSEL
Farad & Lange, L. L. P., Rochester (Angelo G. Farad, Carol A. McKenna and Matthew F. Belanger of counsel), for appellants.
I. The Court of Appeals should formally adopt a prior inconsistent statement exception to the hearsay rule for oral statements in civil cases. (Fleury v Edwards, 14 NY2d 334 ; People v Buie, 86 NY2d 501 ; Cohen v St. Regis Paper Co., 99 AD2d 659 , 64 NY2d 656 ; Vincent v Thompson, 50 AD2d 211 ; People v Settles, 46 NY2d 154 ; Di Carlo v United States, 6 F2d 364 ; United States v Valdez-Soto, 31 F3d 1467 ; United States v Delacorte, 113 F3d 1243 ; United States v Leslie, 542 F2d 285 ; Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518 .) II. In the absence of an explicit prior inconsistent statement exception to the hearsay rule, trial courts have the discretion to admit such statements in situations where the statements are necessary and otherwise reliable and trustworthy. (United States v Mathis, 559 F2d 294 ; Fleury v Edwards, 14 NY2d 334 ; Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518 ; People v Arnold, 34 NY2d 548 ; People v Nieves, 67 NY2d 125 ; People v Robinson, 89 NY2d 648 ; Noskewicz v City of New York, 155 AD2d 646 ; Donohue v Losito, 141 AD2d 691 ; Vincent v Thompson, 50 AD2d 211 .) III. The proffered statements of Tammy Jo Higgins were observations of the actions of the doctors and nurses in the operating room, not conclusions as to their thoughts. IV. Because the evidence was so crucial to plaintiffs’ case, the exclusion of Ms. Osborne’s testimony was not harmless error. (Micallef v Miehle Co., 39 NY2d 376 ; Matter of De Lano, 34 AD2d 1031 ; Durkin v Peluso, 184 AD2d 940 .)
Brown & Tarantino, L. L. P., Buffalo (Ann M. Campbell of counsel), for Gilbert P. Proper, respondent.
I. The courts of this State have historically applied the traditional or “orthodox” rule that prior inconsistent statements have no testimonial value, and several other States follow this rule. (People v Freeman, 9 NY2d 600 ; People v Goetz, 12 NY2d 689 ; People v Ferraro, 293 NY 51 ; Matter of Roge v Valentine, 280 NY2d 268 ; Sloan v New York Cent. R. R. Co., 45 NY 125 ; People v Eli, 250 AD2d 418 , 92 NY2d 851 ; People v Alicea, 229 AD2d 80 , 90 NY2d 890 ; People v Auricchio, 141 AD2d 552 , 72 NY2d 954 ; Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518 ; Matter of
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Millington v New York City Tr. Auth., 44 AD2d 542 .) II. The cornerstone of any exception to the rule against hearsay in this State is a sufficient guarantee of trustworthiness justifying admission of the evidence; there were insufficient indicia of reliability to warrant admission of the evidence; there were insufficient indicia of reliability to warrant admission of the alleged prior inconsistent statement in the case at bar. (Newman v Great Atl. & Pac. Tea Co., 100 AD2d 538 ; People v Brown, 80 NY2d 729 ; People v Shortridge, 65 NY2d 309 ; People v Blades, 93 NY2d 166 ; People v Settles, 46 NY2d 154 ; People v Nieves, 67 NY2d 125 ; People v Edwards, 47 NY2d 493 ; People v Robinson, 89 NY2d 648 ; United States v Cunningham, 446 F2d 194 , 404 US 950 ; People v Arnold, 34 NY2d 548 .) III. Even if this Court is inclined to adopt a rule based on Federal Rule of Evidence 801 (d) (1), the alleged prior inconsistent statement in this case would be inadmissible. (Di Carlo v United States, 6 F2d 364 .) IV. Plaintiffs’ assertion that Tammy Jo’s alleged prior inconsistent statement should be admitted under a rule similar to Federal rule 807 is without merit on several grounds. (New York State Coalition for Criminal Justice v Coughlin, 64 NY2d 660 ; Atlantic Cement Co. v Fidelity & Cas. Co., 63 NY2d 798 ; Matter of Gregory v Board of Appeals, 57 NY2d 865 ; United States v Guevara, 598 F2d 1094 ; United States v Mathis, 559 F2d 294 ; United States v Scrima, 819 F2d 996 ; United States v Valdez-Soto, 31 F3d 1467 ; United States v Iaconetti, 406 F Supp 554 ; United States v McPartlin, 595 F2d 1321 ; United States v Leslie, 542 F2d 285 .) V. Tammy Jo Higgins cannot be impeached with her alleged prior inconsistent statement where her trial testimony was not injurious to plaintiffs’ case and was not in fact inconsistent with her alleged prior inconsistent statement. (United States v Cunningham, 446 F2d 194 ; People v Fitzpatrick, 40 NY2d 44 ; People v Mercado, 162 AD2d 722 ; People v Johnson, 108 AD2d 1059 ; Brown v Western Union Tel. Co., 26 AD2d 316 .) VI. Tammy Jo was not qualified to give the purported opinion testimony at issue on this appeal, and even assuming, arguendo, that she had been so qualified, her alleged statement was legally insufficient as it was conclusory; that is, it was unsupported by stated facts. (Grey v United Leasing, 91 AD2d 932 ; Gray v Brooklyn Hgts. R. R. Co., 175 NY 448 ; McKenna v Snare & Triest Co., 147 App Div 855 ; Van Scooter v 450 Trabold Rd., 206 AD2d 865 ; People v Kenny, 36 AD2d 477 , 30 NY2d 154 ; Matott v Ward, 48 NY2d 455 ; Huffv White Motor Corp., 609 F2d 286 ; People v Montanez, 177 Misc 2d 506 ; Johnson v Westfield Mem. Hosp., 184 Misc 2d 792 ;
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Kaplan v Hamilton Med. Assocs., 262 AD2d 609 .) VII. Regardless of the rule this Court adopts regarding prior inconsistent statements, the purported statement at issue in this case was not crucial to plaintiffs’ case, and regardless of whether it was admitted or excluded, the result would have been the same. Accordingly, judgment should be entered on the verdict in favor of defendant Dr. Proper. (People v Vasquez, 88 NY2d 561 ; People v Regina, 19 NY2d 65 ; Khan v Galvin, 206 AD2d 776 ; People v Coleman, 207 AD2d 724 ; Loschiavo v PortAuth., 58 NY2d 1040 ; Vivitorian Corp. v Brooklyn Union Gas Co., 250 AD2d 762 ; Nicastro v Park, 113 AD2d 129 ; Wylie v Consolidated Rail Corp., 261 AD2d 955 , 93 NY2d 816 ; Grier v Macy & Co., 173 AD2d 238 .)
Harris Beach, L. L. P., Rochester (Edward H. Fox and Sue S. Tebor of counsel), for Rochester General Hospital, respondent.
I. New York should not expand the exception to the hearsay rule nor adopt a residual rule to allow for the admission of unsworn prior inconsistent oral statements as evidence in chief. (Matter of Roge v Valentine, 280 NY 268 ; Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518 ; Vincent v Thompson, 50 AD2d 211 ; Noskewicz v City of New York, 155 AD2d 646 ; Donohue v Losito, 141 AD2d 691 , 72 NY2d 810 ; Egleston v Kalamarides, 89 AD2d 777 , 58 NY2d 682 ; Matter of Millington v New York City Tr. Auth., 44 AD2d 542 , 54 AD2d 649 ; Sobol v Porter, 225 AD2d 918 ; Campbell v City of Elmira, 198 AD2d 736 , 84 NY2d 505 ; Matter of Grace V., 206 AD2d 608 .) II. The trial court erred in setting aside a jury verdict for defendants on the ground that the prior inconsistent oral statement ruled inadmissible as hearsay at trial, though lacking sufficient indicia of reliability, was necessary to plaintiffs’ case. (Egleston v Kalamarides, 89 AD2d 777 , 58 NY2d 682 ; People v Buie, 89 NY2d 501 ; Vincent v Thompson, 50 AD2d 211 ; Huff v White Motor Corp., 609 F2d 286 .) III. The proffered testimony was conclusory in nature and inadmissible. (People v Russell, 165 AD2d 327 , 79 NY2d 1024 .) IV. Even if the trial court erred in precluding the proffered hearsay statement, such error was harmless. (Khan v Galvin, 206 AD2d 776 ; McClain v Lockport Mem. Hosp., 236 AD2d 864 .)

OPINION OF THE COURT

This medical malpractice action focuses on the alleged failure of a surgical anesthesiologist, defendant Gilbert Proper, to

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monitor plaintiff Joseph Nucci’s condition following surgery at defendant Rochester General Hospital. At some point before Nucci entered the recovery room, he sustained irreversible brain damage due to oxygen deprivation. The parties dispute the course of events following the surgery leading to this tragic result. Plaintiffs contend that Nucci became hypoxic after developing an airway obstruction following extubation, which went unnoticed for several minutes while Proper and other surgical staff were focused on post-operative procedures and paperwork. Defendants maintain that Nucci’s obstruction was immediately and successfully treated, but not before his heart went into electromechanical disassociation, causing his heart to stop and resulting in oxygen deprivation during resuscitation efforts.

At trial, plaintiffs offered the testimony of anesthesia technician Debra Fader and Tammy Jo Higgins, a 17-year-old high school intern. Both testified that when they entered the operating room (OR) to assist in preparing the room for the next surgical procedure, the usual hustle and bustle of room turnover was already in progress. Higgins testified that she spent about five minutes taking inventory of the anesthesia cart. As she turned to leave, she noticed Nucci’s face was blue. When Higgins returned to the OR two to five minutes later, Nucci was still blue, and OR staff were now engaged in resuscitation measures. Fader testified that she had been working both in and out of the OR for approximately 15 minutes before any indication of an emergency became apparent. At that time, she overheard OR staff begin working on Nucci and testified that when she turned toward the commotion, she noticed the patient was a chalky or dark blue. Proper testified that he monitored Nucci at all times and took immediate emergency measures as soon as Nucci began to have difficulty breathing.

Both sides produced expert witnesses to correlate Nucci’s facial coloration to his loss of oxygen. The experts disagreed as to the possible causes for Nucci’s appearance. Furthermore, because the time notations relevant to the sequence of postoperative events had been altered on the medical charts, neither expert could testify with certainty how long Nucci had been hypoxic.

Plaintiffs also unsuccessfully sought to offer the testimony of Nucci’s cousin, Kathy Bellucco Osborne. During plaintiffs’ offer of proof, Osborne testified that she spoke with Higgins several days after the incident at a family gathering. Osborne noted that Higgins indicated she had been present during Nucci’s

p. 602
surgery; that when Higgins and Fader had entered the OR, “they saw [the patient] was blue;” that “the machine read nothing” and “nobody was paying any attention;” and that Fader finally spoke up and asked “is this supposed to be this way” and if “something [was] wrong here,” after which the “doctors and nurses turned around” and started reintubating Nucci. Plaintiffs’ counsel sought to introduce this evidence to establish that Nucci’s hypoxia was the result of inattention by Proper and the OR staff.

Following a verdict in favor of defendants, Supreme Court granted plaintiffs’ motion to set aside the verdict and ordered a new trial. The court, relying on our decision in Letendre v Hartford Acc. & Indem. Co. ( 21 NY2d 518 ), concluded that it had erroneously excluded Osborne’s testimony because both Osborne and Higgins were available for cross-examination and thus the dangers generally presented by hearsay evidence were nonexistent. The Appellate Division reversed and reinstated the verdict. We granted leave to appeal, and now affirm.

Out-of-court statements offered for the truth of the matters they assert are hearsay and “may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable” (People v Brensic, 70 NY2d 9 , 14 [citing People v Nieves, 67 NY2d 125 , 131]; see also, People v Brown, 80 NY2d 729 , 734-735 [present sense impressions]; People v Brown, 70 NY2d 513 , 518-519 [excited utterances]). In determining reliability, a court must decide “whether the declaration was spoken under circumstances which render [ ] it highly probable that it is truthful” (Brensic, supra, 70 NY2d, at 14-15; see also, Prince, Richardson on Evidence § 8-107, at 504-505 [Farrell 11th ed 1995]).

Plaintiffs contend that Supreme Court correctly viewed Letendre as creating an exception to the hearsay rule premised solely on witness availability. We disagree and reject plaintiffs’ invitation to extend the Letendre holding to the unsworn oral statements at issue in this case.

Letendre involved an employer’s attempt to collect on a fidelity bond he had purchased from an insurer against embezzlement by an employee. At trial, the employee denied embezzling the missing funds. The Court held that the employee’s prior inculpatory statements to the insurer’s agent regarding his role in the theft were properly admitted because the classic dangers posed by hearsay testimony did not exist (Letendre,

p. 603
supra, 21 NY2d, at 524 ). The Court highlighted several indicia of reliability — the statements were against the declarant’s pecuniary and penal interests; they were in writing and recorded by an agent of the party against whom they were offered; and the declarant was present in court, subject to oath and the safeguard of cross-examination. Contrary to plaintiffs’ view, the availability of the declarant was only one component of the Letendre reliability equation.

Reliability is the sum of the circumstances surrounding the making of the statement that render the declarant worthy of belief. Relevant factors include “spontaneity, repetition, the mental state of the declarant, absence of motive to fabricate, * * * unlikelihood of faulty recollection and the degree to which the statement was against the declarant’s * * * interest” (see, People v James, 93 NY2d 620 , 642 [citing Idaho v Wright, 497 US 805 , 821; Dutton v Evans, 400 US 74 , 89]). Courts have also “considered the status or relationship to the declarant of the person to whom the statement was made * * *, whether there was a coercive atmosphere, whether it was made in response to questioning and whether the statements reflect an attempt to shift blame or curry favor” (James, supra, 93 NY2d, at 642-643 [citing United States v Matthews, 20 F3d 538 , 546; United States v Barone, 114 F3d 1284 , 1302 (1st Cir), cert denied 522 US 1021 ; Earnest v Dorsey, 87 F3d 1123 , 1133-1134 (10th Cir), cert denied 519 US 1016 ; United States v York, 933 F2d 1343 , 1362-1363 (7th Cir), cert denied 502 US 916 ]).

In stark contrast to the out-of-court statements at issue in Letendre, there are no indicia of reliability here. The proffered statements were not made in writing or under oath.[1] They were made several days after the incident occurred at a gathering of Nucci relatives and their friends and they were reported by Osborne, who, as Nucci’s first cousin, may have had a strong motive to shade her testimony. Some of the statements involved double hearsay, e.g., what Osborne heard Higgins say concerning Fader’s statements. Furthermore, Higgins was a young, inexperienced high school student with no medical training. Indeed, plaintiffs acknowledge that Higgins was not an agent of the hospital, such that any statement she made could properly be considered a declaration against interest.

1 Significantly, we note that the Legislature has decided that impeachment of one’s own witness by a prior inconsistent statement may only be effected if the statement was made in a writing subscribed by the witness or made under oath (see, CPLR 4514; CPL 60.35 [1]). We see no compelling reason why a statement bearing fewer indicia of reliability should be admitted for substantive purposes.

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In light of these circumstances, a significant probability exists that the statements may implicate the dangers of the declarant’s faulty memory or perception, insincerity, or ambiguity — traditional testimonial infirmities which the hearsay rule is designed to guard against (see, People v James, supra, 93 NY2d, at 634 [citing Williamson v United States, 512 US 594 , 598-599]; see also, Tribe, Triangulating Hearsay, 87 Harv L Rev 957 , 958 [1974]). Furthermore, the statements may have been misunderstood, or incorrectly reported. These infirmities are not cured simply by Higgins’ presence at trial and her availability for cross-examination because Higgins denied making those statements plaintiffs deemed crucial to their case. Thus, we reject plaintiffs’ argument that Osborne’s testimony is admissible under Letendre.[2]

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Rosenblatt and Graffeo concur.

Order affirmed, with costs.

2 We recognize that several States have chosen to adopt the so-called “modem” view — permitting the admission of prior, unsworn oral statements where the declarant is available and subject to cross-examination (see, 3A Wigmore, Evidence § 1018, n 3, at 499-508 [2000-2001 Supp]). In light of our requirement of sufficient indicia of reliability for out-of-court statements offered under exceptions to the hearsay rule, however, we retain our adherence to the traditional approach.

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