Text Messages Received Relevant to Recipient’s State of Mind Even If Not Read — Declarations of Intent Admissible against Non-Declarant If Linked to Corroborative Evidence — 3d-Party Facebook Posts = Hearsay

Hopkins v. Nat’l RR Passenger Corp., 2016 U.S. Dist. LEXIS 57236 (E.D.N.Y. Apr. 29, 2016):

In the early morning of July 9, 2006, Plaintiff Brian Hopkins was extremely intoxicated. (Id. at 2, 3.) At approximately 4:00 a.m., Hopkins climbed on top of a train parked at South Station in Boston. (Id. at 2.) Although witnesses saw Hopkins in South Station, no witness saw Hopkins climb on top of the train. (Id. at 3.) Hopkins himself has no memory of the events of the night. (Id.) While on top of the train, Hopkins came into contact with an electrified catenary wire, resulting in a severe shock. (Id.) The train upon which Hopkins was found was not scheduled to leave the station until the early afternoon. (Id. at 4.)

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A. Plaintiffs' Motions

1. Evidence of Hopkins's Alleged Recklessness

Plaintiffs have filed a number of motions seeking to exclude from trial evidence relating to Hopkins's conduct and state of mind on the night of the incident. (See Pls.' Mot. in Lim. to Exclude Evidence of Brian Hopkins's Comparative Negligence ("Comparative Negligence Motion") (Dkt. 83); Pls.' Mot. in Lim. to Exclude Evidence Concerning Brian Hopkins's Knowledge of Electrical Danger ("Electrical Danger Motion") (Dkt. 87); Pls.' Mot. in Lim. to Exclude Evidence of Brian Hopkins's Drinking and Marijuana Use ("Past Alcohol Use Motion") (Dkt. 89); Pls.' Mot. in Lim. to Exclude Text Messages and Phone Records ("Text Messages and Phone Records Motion") (Dkt. 90).) Broadly, Plaintiffs argue in each motion that evidence of Hopkins's conduct and state of mind is not relevant, because Massachusetts law does not provide for a comparative recklessness defense. (See, e.g., Comparative Negligence Motion at 2 ("[T]here is no concept of comparative recklessness under Massachusetts Law.").) Plaintiffs further argue that, under Massachusetts law, Defendants [*7]  are barred from arguing that Hopkins's recklessness was the sole proximate cause of his injuries. (Id. at 3-5.) Accordingly, Plaintiffs contend that evidence concerning Hopkins's actions and thoughts on the night of the accident are simply irrelevant.2

2   Plaintiffs also have a number of more specific objections to certain categories of evidence. The court discusses those objections below.

Defendants disagree. They argue that Hopkins's actions and state of mind on the night of the accident are relevant for three purposes. First, Defendants argue that a plaintiff s recklessness is a bar to recovery under Massachusetts law. (See Defs.' Opp'n to Pls.' Mots. in Lim. ("Defs.' Opp'n") (Dkt. 97) at 4-7.) Second, Defendants argue that Hopkins's evidence of recklessness is relevant to show that Hopkins recklessness was the sole proximate cause of his injuries. (Id. at 7-8.) Third, Defendants argue that Hopkins's state of mind is relevant to show that the overhead wire was an open and obvious danger, and, therefore, no warning was required. (Id. at 8-9.)

The court largely agrees with Defendants. For the reasons explained below, evidence of Hopkins's conduct and state of mind on the night of the incident is relevant to show (1) [*8]  Hopkins's recklessness, (2) Hopkins's role in causing the incident, and (3) the obviousness of the danger of the live catenary wire. (See infra Parts III.A.i.a-c.) However, certain proffered evidence is nonetheless inadmissible because it is unduly prejudicial. (See infra Part III.A.ii.)

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ii. Application

Having concluded that Hopkins's state of mind and conduct on the night of the accident are relevant, the court must examine the specific evidence that Defendants proffer to determine if it is admissible.

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d. Text Messages and Phone Records

Plaintiffs seek to exclude text messages from Peter Arhangelsky to Brian Hopkins and Brian Hopkins's cell phone records from the night before and morning of the accident. (See generally Text Messages and Phone Records Motion.) Specifically, Plaintiffs wish to exclude two text massages. The first text message was sent from Arhangelsky to Hopkins after Hopkins had left Arhangelsky's home to go to the train station; the text message reads "F--k you. S--k you own c--k. I hope your bus goes down. I sat at South Station for two hours." (Id. at 1.) The second text message asks Hopkins to call Arhangelsky so that "I know you're alive." (Id.) There is no evidence that Hopkins read either message. (Id.) Plaintiffs argue that the text messages and other phone records are inadmissible because (1) they are irrelevant because evidence of Hopkins's state of mind and conduct are not relevant, (2) they are inadmissible hearsay, (3) they do not assist [*45]  the jury in understanding why Hopkins was on the train in light of the parties' stipulations, and (4) the text messages are more prejudicial than probative. None of these arguments are compelling.

First, Hopkins's state of mind and conduct on the night of the accident are relevant. (See supra Part III.A.1.i.) Moreover, the text messages and phone records are relevant to show Hopkins's state of mind. Arhangelsky witnessed Hopkins immediately before Hopkins went to the train station. Arhangelsky's text messages therefore offer a window into how Arhangelsky perceived Hopkins's actions and thought processes immediately before the incident occurred. In the text messages, Arhangelsky expresses anger and worry that Hopkins left Arhangelsky's house to go to the bus station. From these messages, the jury could infer that Arhangelsky perceived that Hopkins was acting erratically or dangerously, and from there could infer that Hopkins was actually acting dangerously. These inferences can be drawn regardless of whether Hopkins read the text messages. Indeed, it is uncontroversial that statements can be used against a non-declarant where relevant. See, e.g., United States v. Nersesian, 824 F.2d 1294, 1325 (2d Cir. 1987) (noting that "declarations of intention [*46]  or future plans are admissible against a nondeclarant when they are linked with independent evidence that corroborates the declaration").

Second, the text messages are not hearsay. To be hearsay, a statement must be introduced "to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c)(2). Thus, where "the statement is offered as circumstantial evidence of . . . state of mind, it does not fall within the definition given by Rule 801(c); because it was not offered to prove the truth of the matter asserted." United States v. Detrich, 865 F.2d 17, 21 (2d Cir. 1988). Here, Defendants are not seeking to use the text messages to prove the truth of the matters asserted. For example, the Defendants are indifferent as to whether Arhangelsky actually wanted Hopkins's bus to go down. Instead, Defendants are offering the text messages as circumstantial evidence of Arhangelsky's state of mind. Therefore, the text messages are not hearsay.14

14   Neither party offers a specific hearsay objection to the phone records. If Plaintiffs have a hearsay objection to the phone records, they can make it when Defendants move to have them admitted.

Third, the text messages and phone records may assist the jury in determining why Hopkins climbed aboard the train. The text messages offer [*47]  circumstantial evidence of Hopkins's state of mind based on Arhangelsky's perceptions of Hopkins immediately before Hopkins went to the train station. True, this is not the best possible evidence of Hopkins's thought process, but it is nonetheless helpful.

Finally, the text messages and phone records are not unfairly prejudicial. Plaintiffs do not appear to argue that the phone records are unfairly prejudicial. Rather, all Plaintiffs argue is that the text messages are unfairly prejudicial because they contain foul language. (Id. at 4.) True, the text messages contain harsh language. However, that harsh language does not prejudice the Plaintiffs in any way. The messages were written by Arhangelsky, not Hopkins. Therefore, the court fails to see how the foul language could prejudice the jury against Plaintiffs. In any event, the harshness of the language--if prejudicial at all--does not substantially outweigh the probative value of the messages. Indeed, the harshness of the language in the text message offers strong evidence of Arhangelsky's contemporaneous reaction to Hopkins's actions. That is, the very fact that Arhangelsky used strong language in the text messages is itself probative of how [*48]  Arhangelsky felt at the time.

Thus, the court finds that the text messages and phone records are admissible.

2. Certain Newspaper and Facebook Evidence

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ii. Facebook Posts

Plaintiffs argue that Hopkins's Facebook page printouts likely contain inadmissible hearsay. (Pls.' Mot. in Lim. to Preclude Various Hearsay Items at 2.) Plaintiffs acknowledge that Hopkins's own statements on his Facebook page are admissible as an opposing party statement. (Id.) Nonetheless, Plaintiffs argue that Facebook pages typically contain statements of numerous people, many of which would be hearsay. (Id.) Thus, Plaintiffs argue that any admitted Facebook pages "should be carefully redacted." Defendants appear to agree. (See Defs.' Opp'n at 16.) Accordingly, the court reserves ruling on the admissibility of any Facebook posts. If Defendants seek to use the [*50]  Facebook posts, and redaction has not resolved the hearsay problem, Plaintiffs may raise their hearsay challenge again.

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