Commercial Litigation and Arbitration

Statement of Employee Not Admission of Employer within Rule 801

The plaintiff in McAdams v. United States, 2008 U.S. App. LEXIS 24631 (3d Cir. Oct 28, 2008), slipped on the floor of a VA Medical Center (VMAC) and attempted unsuccessfully to introduce the testimony of an x-ray technician employed by the VMAC that the floor was as slippery as a skating rink:

McAdams argues that the statement of the VAMC employee, that the first floor was like a skating rink, was admissible as the statement of a party opponent under Rule 801(d)(2)(D) of the Federal Rules of Evidence....

[Footnote 1 Rule 801 (d)(2)(D) provides that a statement is not hearsay if it is offered against the party and was made "by the party's agent or servant concerning a matter within the scope of the agency or employment . . . during the existence of the relationship." ]

***For Rule 801(d)(2)(D) to apply, the statement must concern a matter within the scope of the declarant's agency or employment. See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 97 (3d Cir. 1999). McAdams presented no evidence that the x-ray technician was responsible for the condition or maintenance of the hospital floors. Nor did McAdams provide any other basis for concluding that the state of the floors was a matter within the scope of an x-ray technician's employment. From the perspective of Rule 801(d)(2)(D), there is no difference between the x-ray technician who says that the lobby floor is like a skating rink and another patient in the hospital who voices the same opinion — both statements would constitute inadmissible hearsay.

McAdams also argues in a footnote that the statement is admissible under Rule 801(d)(2)(C) because the VAMC's fall reduction program authorizes all employees to investigate and report falls that occur in the hospital.

[Footnote 4 Rule 801(d)(2)(C) provides that a statement is not hearsay if the statement is offered against a party and was made "by a person authorized by the party to make a statement concerning the subject."]

The x-ray technician's statement, however, was not made in the context of an investigation of McAdams's fall, and no other basis for the x-ray technician's authorization to speak on the condition of the floors was provided.

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