Motorcyclist Amputee Loses Suit Over Crash

     CHICAGO (CN) – A woman who lost both legs in a motorcycle crash cannot overturn a jury’s verdict that she caused the accident, not the other driver, the 7th Circuit ruled.
     While riding on I-70 near downtown Indianapolis on Aug. 22, 2008, Betty Jordan collided with a trucker-trailer that was hauling auto parts. The accident occurred while Kelly Binns was driving the truck in the center lane through a right-hand curve. Jordan, who had been riding in the right lane, was thrown to the pavement and ultimately lost both of her legs at the knees.
     Binns said he ran up to Jordan after the crash, and that she repeatedly said, in between screams, that the accident was her fault. Jordan allegedly said the same thing to her husband, Theodore “Ted” Jordan, who arrived at the scene quickly and spoke with Indiana State Trooper Russell Litt and Binns.
     Litt quoted both Binns and the husband in his crash report as having said that Betty Jordan took responsibility for the crash. Insurance adjuster Kevin Niles gave a similar report.
     The Jordans later sued Binns and his employer, U.S. Xpress, for negligence and loss of consortium. After a five-day trial in 2011, a jury found in favor of the defendants.
     The Jordans appealed, arguing that six pieces of evidence used at trial were inadmissible hearsay under the Federal Rules of Civil Procedure.
     Specifically, they sought to exclude portions of the Crash Report that documented Binns’s and Ted’s statements about what Betty said, as well as Trooper Litt’s related in-court testimony. The Jordans also challenged references to Betty’s statements in the insurance adjuster’s report, and related in-court testimony, which were based on the crash report and the conversation Niles and Ted later had at the hospital.
     All of the challenged evidence was offered to show that Betty had admitted fault at the scene by repeatedly saying, “I’m sorry, I’m sorry. It wasn’t the trucker’s fault. It was mine.”
     The 7th Circuit affirmed Thursday. Although some evidence should not been admitted, the three-judge panel found that the errors had not had a substantial impact on the outcome.
     “‘Hearsay,’ in its simplest terms, is an out-of-court statement offered for the truth of the matter asserted,” Judge John Tinder wrote for a three-member panel.
     Though federal procedure generally prohibits the admission of hearsay evidence, there are several exceptions that apply to the Jordans’ case, the court found.
     First, Betty’s statement qualified as an “admission” by a party-opponent.
     “Treating party admissions as nonhearsay is rooted in the nature of the adversarial system, and trustworthiness is not a requirement for admission,” Tinder wrote.
     Ted’s statements about what Betty had said were also admissible because Ted is a party to the case.
     The trial also properly included portions of the crash report that documented Ted and Binns’ statements about what Betty, according to the ruling. Because the statements were contained in a police report, they fell into the “public records” exception.
     Binns did, however, make some statements that do not qualify as admissions by a party-opponent because they were offered by him, not against him. Thus, the insurance adjuster should not have been allowed to testify as to what Binns told him Ted had said about what Betty said.
     The trial also should have excluded portions of the insurance adjuster’s report that included the statements of Binns and Ted, according to the ruling.
     Although a “business records exception removes the hearsay bar for records kept in the course of a regularly conducted business activity,” the court found that the insurance adjuster’s report does not fall within the exception because it was created in preparation for litigation, not in the course of regular business activity.
     The 7th Circuit left the jury’s verdict undisturbed despite the errors, noting that “errors in admitting evidence that is merely cumulative of properly admitted evidence are harmless.”
     Because the improperly evidence was cumulative and other evidence presented at trial strongly favored the defendants’ position, the Jordans were not prejudiced.
     “The jury heard that Binns was an experienced truck driver who traveled this stretch of I-70 approximately 3,000 times over the previous ten years; that when driving through a curve he compensates to ensure his trailer takes the same path as the rear tires of his tractor; and that his goal is to ‘hold the line’ and maintain his lane position through the curve,” Tinder wrote.
     “Betty, on the other hand, had not obtained her motorcycle operator’s license until 2005; was riding a very large motorcycle; was traveling in the left-hand portion of the right lane as she traveled through the curve; and would have had to merge into the center lane soon after making it through the curve, had the accident not occurred.”
     The 33-page opinion included three diagrams illustrating the multilevel chains of communication, as well as outlining the legal basis for admitting or blocking testimony at each link.

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