For the First Time, Massachusetts Deems Memory Loss a Proper Ground For Declarant Unavailability
Massachusetts evidence law is weird. The state has a Guide to Evidence that is updated annually but that is not binding upon the courts. That said, those courts can adopt portions of the Guide to Evidence, which is what the Supreme Judicial Court of Massachusetts did in its recent opinion in Hedberg v. Wakamatsu, 2019 WL 3023528 (Mass. 2019). But that opinion is odd for a few reasons.
In Hedberg, a patient
underwent a vaginal hysterectomy performed by the defendant. The defendant was assisted by a third-year resident and a third-year medical student…The surgery required that [the patient] be in the dorsal lithotomy position, lying on her back with her legs in stirrups, her hips and knees flexed, and her thighs apart. The surgery lasted approximately three hours and forty-five minutes, and afterward [the patient] almost immediately complained of pain, numbness, and tingling in her left leg and foot. After a neurology consultation, her symptoms were deemed the likely result of injury to her sciatic nerve “either [by] stretching (positional) or possibly due to surgical stitching.”
Thereafter, the patient
submitted an affidavit that relayed a conversation she had with [the medical student] on May 17, 2012, the day after the surgery. She averred: “After I told him that I had a horrible night in the hospital with the leg pain, he said ‘I am awfully sorry, we had a hard time positioning that leg.’ He said he was holding retractors and may have been leaning against my leg. He then said, ‘I am so sorry…, I am so sorry.’ ” Testifying at trial as an offer of proof, [she] reiterated these statements and added that, as he was leaving, [the medical student] said to her, “I’ll pray for you.”
The patient thereafter brought a medical malpractice action against the doctor. The medical student then
testified by deposition in 2017 that he did not remember the surgery or…postsurgery care other than a vague memory of discussing whether she required a neurology consultation with the resident who participated in the surgery. He further noted that he did not recall any discussion with [the patient] regarding the positioning of her leg or whether he had leaned on it during surgery.
The trial court, however, precluded the patient from testifying about the medical student’s statements, concluding that they were inadmissible hearsay, leading to a judgment in favor of the doctor.
The Supreme Court of Massachusetts thereafter noted that Rule 804(a)(3) of its Guide to Evidence states that a declarant is unavailable if (s)he
testifies to not remembering the subject matter [this criterion not recognized]
As the bracketed language makes clear, the Massachusetts courts had not previously recognized this Rule. That all changed in Hedberg, with the court adopting Rule 804(a)(3), at least in civil cases, noting that
In doing so, we follow an overwhelming majority of other States in recognizing a declarant’s lack of memory as a means to establish unavailability.
In an unavailability analysis, “[t]he crucial factor [should] not [be] the unavailability of the witness but rather the unavailability of his testimony.”…The exceptions to the rule against hearsay are all grounded in “a circumstantial probability of trustworthiness, and a necessity for the evidence.”…That trustworthiness serves to mitigate the lack of cross-examination: “under certain circumstances the probability of accuracy and trustworthiness of a statement is practically sufficient, if not quite equivalent to that of statements tested in the conventional manner.”…With that in mind, we hold that, in civil cases, where a declarant testifies to a lack of memory of the subject matter in question and the judge, as a preliminary question of fact upon which admissibility depends, credits the declarant’s lack of memory, the declarant is unavailable for the purposes of the recognized exceptions to the rule against hearsay under Mass. G. Evid. § 804(b).
Obviously, the case before the court was a civil case, but I still wonder why the court limited its adoption to civil cases because I can’t imagine a reason not to also adopt this Rule in criminal cases.
The second part of the court’s opinion is a bit more questionable. It’s not enough to simply prove that a hearsay declarant us unavailable. Instead, the proponent must also prove that the declarant made a statement that meets an 804 hearsay exception. In this case, the court identified Rule 804(b)(3) of its Guide to Evidence, which provides a hearsay exception for
A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else, or to expose the declarant to civil or criminal liability.
It’s not obvious that this hearsay exception covers the medical student’s statements, but the court held that the statements were statements by
a third-year medical student with a burgeoning career and an unshaped reputation in the medical profession. His admission to having mistakenly leaned on a patient’s leg during a surgery in such a manner that may have left her with a permanent injury is against his pecuniary interest, as it reflects negatively on his ability and judgment as a physician. A statement that leaves a negative impact on one’s professional reputation and competence, we conclude, is sufficiently against one’s pecuniary interest as to allow the statement to be admitted.
That seems like a bit of a stretch to me because, for instance, I can’t imagine a similar mistake by a law student negatively impacting his/her future career.