Betty Jordan v. Kelly Binns

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2134

B ETTY M. JORDAN and

T HEODORE R. JORDAN,

Plaintiffs-Appellants,

v.

K ELLY D. B INNS and

U.S. X PRESS, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:09-cv-01160-WTL-MJD—William T. Lawrence, Judge.

A RGUED O CTOBER 12, 2012—D ECIDED A PRIL 4, 2013

Before K ANNE, T INDER, and H AMILTON, Circuit Judges.

T INDER, Circuit Judge. This diversity action arises out

of a tragic accident in which Betty Jordan ultimately

lost both of her legs at the knees after the motorcycle

she was operating on an interstate highway collided

with a semi tractor-trailer operated by Kelly Binns.

Betty and her husband, Ted Jordan (collectively, the

Jordans or the plaintiffs), sued Binns and his employer,

2 No. 11-2134

U.S. Xpress, Inc. (collectively, the defendants), for negli-

gence and loss of consortium under Indiana law. A jury

trial resulted in a defense verdict. The Jordans seek a

new trial on grounds that several of the district court’s

evidentiary rulings ran afoul of the rule against

hearsay, Fed. R. Evid. 802. We affirm.

On the morning of August 22, 2008, Kelly Binns was

driving eastbound on I-70 through downtown Indiana-

polis, Indiana, in a semi tractor-trailer; he had just

picked up a load of auto parts and was transporting it to

a business in Ohio on behalf of U.S. Xpress. Binns

was traveling in the center lane through a right-hand

curve when he heard a “banging noise”; he looked at

his passenger-side mirror and saw a motorcycle sliding

down the right lane. After pulling over to the shoulder,

Binns ran back to find Betty Jordan lying on the pave-

ment, moaning and screaming. According to Binns,

when he arrived at Betty’s side, Betty repeatedly said,

“Tell the trucker it’s not his fault. It’s my fault.” (Betty

has no recollection of making these statements and

does not recall seeing Binns at the scene.) Binns relayed

Betty’s statements to U.S. Xpress claims manager Keri

Bukovitz, Indiana State Trooper Russell Litt, and in-

surance adjuster Kevin Niles (who had been hired by

U.S. Xpress), and each of these witnesses testified to

that effect at trial. Additionally, Trooper Litt recorded

Binns’s statement as to what Binns claimed Betty had

said on his Indiana Officer’s Standard Crash Report

(“Crash Report”).

At some point, Ted Jordan, who had been notified of

his wife’s accident and had arrived on the scene shortly

No. 11-2134 3

thereafter, introduced himself to Binns as Betty’s hus-

band. Binns testified that Ted “mentioned that he was an

old truck driver and that [Betty had] mentioned it

wasn’t [Binns’s] fault.” Trooper Litt similarly testified

that Ted told him that Betty had said that the accident

had been her fault, not the trucker’s fault. As he did

with Binns’s statement, in the Crash Report Trooper Litt

recorded Ted’s recitation of Betty’s statement. Similarly,

Niles testified that, when he went to interview Ted at

the hospital, Ted told him that Betty had said the

accident had been her fault. In his report (“Adjuster’s

Report”), Niles noted Ted’s statement and, citing the

Crash Report, also indicated that Ted similarly had

told Trooper Litt that Betty had said the accident had

been her fault. For his part, Ted denied that Betty had

made any statements concerning fault, and he also

denied that he had made any statements conveying

such to Binns, Trooper Litt, or Niles.

On April 18, 2011, a five-day jury trial commenced.

Prior to opening statements, the Jordans objected to the

defendants’ anticipated use of the Crash Report as a

demonstrative aid during opening statements, on the

basis that the court had not yet made a final determina-

tion as to whether it would be admissible. The district

court overruled the objection, explaining that opening

statements provide a roadmap for the jury and are not

evidence. During trial, in addition to the testimonial

and documentary evidence concerning Betty’s on-scene

statements, the jury heard Binns testify that he was an

experienced truck driver who had driven through

the particular curve on I-70 almost every working day

for ten years and that he was confident his truck had

4 No. 11-2134

not veered into Betty’s lane. For her part, Betty testified

that she remained in the left-hand portion of her lane

the entire time and that Binns’s trailer had migrated

toward her and caused the accident. But Binns’s expert

witness testified that, based on a forensic reconstruc-

tion, the accident could not have occurred as Betty

claimed; according to the expert, Betty’s tires had been

on the white lines dividing the lanes at the time of

impact, meaning that Betty’s motorcycle had been en-

croaching about 18 inches into Binns’s lane. Another

expert called by Binns testified that Betty had not exer-

cised reasonable care in operating her motorcycle.

On appeal,1 the Jordans challenge the admissibility

of several pieces of evidence, all of which the defense

offered to show that Betty admitted fault at the scene.

They contend that each piece of evidence consists of

multiple layers of hearsay and should have been ex-

cluded under the hearsay rule, see Fed. R. Evid. 802,

805. (Although the Federal Rules of Evidence were

amended after the trial in this case, effective December 1,

2011, those amendments were merely stylistic, so we

will cite the current version unless otherwise noted.) We

review a district court’s evidentiary rulings for an abuse

of discretion, and, if we find an abuse, we then deter-

1

Oral argument in this case was held at the Indiana University

Maurer School of Law in Bloomington, Indiana. We thank

the law school’s students, staff, and faculty for their generous

hospitality. We also thank the parties for their patience and

counsel for their vigorous advocacy.

No. 11-2134 5

mine whether the error was harmless. United States v.

Earls, 704 F.3d 466, 470 (7th Cir. 2012).

“Hearsay,” in its simplest terms, is an out-of-court

statement offered for the truth of the matter asserted.

See Fed. R. Evid. 801(c) (“’Hearsay’ means a statement

that: (1) the declarant does not make while testifying at

the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in

the statement.”). As a general rule, hearsay is not admis-

sible. Fed. R. Evid. 802. But the Federal Rules of Evidence

(FRE) contain numerous exceptions to the rule against

hearsay. See Fed. R. Evid. 803, 804. Additionally, FRE

801(d) exempts or excludes from the definition of “hear-

say” certain statements that otherwise would be hear-

say. And “statements . . . that comprise multiple levels

of potential hearsay are admissible if each part is admis-

sible.” United States v. Green, 258 F.3d 683, 690 (7th

Cir. 2001) (citations omitted); see Fed. R. Evid. 805.

The Jordans argue that the following six pieces of

testimonial and documentary evidence should have

been excluded: (1) the statement in the Crash Report

reciting that Ted had told Trooper Litt that Betty had

told Ted that the accident had been her fault; (2) the

statement in the Crash Report reciting that Binns had

told Trooper Litt that Betty had told Binns that the

accident had been her fault; (3) Trooper Litt’s trial testi-

mony that Ted told him that Betty had told Ted that

the accident had been her fault; (4) Trooper Litt’s trial

testimony that Binns told him that Betty had told

Binns that the accident had been her fault; (5) the state-

6 No. 11-2134

ment in the Adjuster’s Report reciting the Crash

Report statement reciting that Ted had told Trooper

Litt that Betty had told Ted that the accident had been

her fault; and (6) Niles’s trial testimony that Binns had

told him that Ted had told Binns that Betty had told

Ted that the accident was her fault. And because, in

their view, the Crash Report contains inadmissible

hearsay, the Jordans also assert that the district court

erred in allowing defense counsel to employ the Crash

Report as a demonstrative aid during opening statements.

It is easy to get lost in the “he said, he said, she said”

of these pieces of evidence, but close examination

reveals that only three chains of communication are

at issue (multiple links in two of those chains are chal-

lenged). The following diagram 2 is helpful:

2

The asterisks identify the eight links in these three chains of

communication admitted into evidence. The Jordans chal-

lenge only six of those links; they do not challenge Binns’s

trial testimony.

No. 11-2134 7

Betty ö Ted ö Trooper Litt* ö Crash Report* ö Adjuster’s

Report*

Betty ö Binns* ö Trooper Litt* ö Crash Report*

Betty ö Ted ö Binns* ö Niles*

The first or inner-most layer of potential hearsay in

each piece of evidence is a statement from Betty that

the accident was her fault, not the trucker’s. The Jordans

wisely concede that Betty’s statements are nonhearsay

statements (also called “admissions”) by a party-opponent

under FRE 801(d)(2)(A), see, e.g., United States v. Spiller,

261 F.3d 683, 690 (7th Cir. 2001), and they do not seek

to have Betty’s statements deemed inadmissible on alter-

native grounds, cf. Mister v. Ne. Ill. Commuter R.R. Corp.,

571 F.3d 696, 699 (7th Cir. 2009) (applying FRE 403

to exclude nonhearsay party admission). So the first

layer of potential hearsay in each of the challenged pieces

of evidence is not hearsay.

Binns’s statements about what Betty said constitute

the second layer of potential hearsay in two of the six

challenged pieces of evidence (and the third layer in Niles’s

trial testimony). Although Binns is a party to this action,

the evidence including his statements was offered by

8 No. 11-2134

him, not against him, so his statements do not qualify as

admissions by a party-opponent under FRE 801(d)(2)(A).

See United States v. McDaniel, 398 F.3d 540, 545 (6th Cir.

2005); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir.

1996). For the most part, the defendants make no attempt

to show that Binns’s statements fall into another defini-

tional exclusion or hearsay exception. Indeed, they

concede that it was error to allow Niles to testify as to

what Binns said that Ted said that Betty said, but they

argue that it was harmless, which we discuss later.

The second layer of potential hearsay in the remaining

pieces of evidence consists of Ted’s statements to others

that Betty said the accident was her fault. Ted, of course, is

a party to this action by way of his loss-of-consortium

claim, which is derivative of Betty’s claim for negligence,

see Durham ex rel. Estate of Wade v. U-Haul Int’l, 745

N.E.2d 755, 764 (Ind. 2001), and his statements were

offered by the defendants. Yet the plaintiffs urge that

Ted’s statements are not party admissions under FRE

801(d)(2)(A) because they were not his own statements

in that he merely repeated Betty’s statements. They cite

no authority to support their position. The defendants,

relying solely on a prior district court decision, In re

Greenwood Air Crash, 924 F. Supp. 1511, 1515 (S.D. Ind. 1995)

(air-crash accident victims’ statements were party ad-

missions, and victims’ wives’ statements repeating what

victims had told them were also party admissions

because wives were plaintiffs as well), say that Ted’s

statements are party admissions. It is true, as the Jordans

point out, that Greenwood Air Crash is not binding, but

our analysis of the issue leads us to the same conclu-

No. 11-2134 9

sion, namely, that Ted’s statements are admissible as

nonhearsay statements by a party-opponent.

Rule 801(d)(2)(A) provides that a statement is not hear-

say if it “is offered against an opposing party and . . . was

made by the party in an individual or representative

capacity.” The definitional exemption for individual

admissions is extraordinarily broad. See Fed. R. Evid.

801(d)(2) advisory committee’s note (calling “for gen-

erous treatment of this avenue to admissibility”); C.B.

Mueller, L.C. Kirkpatrick & C.H. Rose III, Evidence

Practice Under the Rules § 8.27, at 909 (4th ed. 2012) (ex-

emption for individual admissions “has almost infinite

breadth”). Treating party admissions as nonhearsay is

rooted in the nature of the adversarial system, and trust-

worthiness is not a requirement for admission. Fed. R. Evid.

801(d)(2) advisory committee’s note; United States

v. McKeon, 738 F.2d 26, 32 (2d Cir. 1984). There is less

concern about trustworthiness, especially in civil cases,

because the party against whom the statements are

offered generally can take the stand and explain, deny, or

rebut the statements. See Jones v. Nat’l Am. Univ., 608 F.3d

1039, 1045 (8th Cir. 2010); 2 McCormick on Evidence § 245,

at 125 (6th ed. 2006). Because trustworthiness is not

the touchstone for admissibility of party admissions, they

are not subject to the personal-knowledge requirement

of FRE 602, e.g., Aliotta v. Nat’l R.R. Passenger Corp., 315

F.3d 756, 761, 763 (7th Cir. 2002); cf. United States v.

Lindemann, 85 F.3d 1232, 1237-38 (7th Cir. 1996), or the

restrictions of the opinion rule of FRE 701, Russell v.

United Parcel Serv., Inc., 666 F.2d 1188, 1190-91 (8th Cir.

1981). See also Fed. R. Evid. 801(d)(2) advisory committee’s

10 No. 11-2134

note. Moreover, party admissions need not be incul-

patory or against interests. United States v. Reed, 227

F.3d 763, 770 (7th Cir. 2000); United States v. McGee, 189 F.3d

626, 631-32 (7th Cir. 1999). There are only two require-

ments for admissibility under FRE 801(d)(2)(A): a statement

was made by a party, and the statement was offered

against that party. See United States v. Matlock, 415 U.S. 164,

172 & n.8 (1974); United States v. Penaloza, 648 F.3d 539,

547 (7th Cir. 2011).

The Jordans contend, in essence, that a party makes

his or her own statement only when he or she asserts an

original thought and that an assertion of another’s

original thought is outside the scope of FRE 801(d)(2)(A).

They derive this “original thought” requirement from

the text of the prior version of FRE 801(d)(2)(A), which

provided that “[a] statement is not hearsay if . . . [it] is

offered against a party and is . . . the party’s own statement,

in either an individual or a representative capacity,” 2

McCormick on Evidence, supra, app. A, at 682. The first

problem with the Jordans’ argument is that the current

version of FRE 801(d)(2)(A) does not employ the term

“own,” and although the prior version applied to the

Jordans’ trial, the 2011 amendments were not intended to

alter substance, so the word “own” cannot have the effect

the Jordans claim it does. Fed. R. Evid. 801 advisory com-

mittee’s note. The second problem is that the Jordans’

argument flows from the faulty premise that Ted’s state-

ments are the same as Betty’s. They are not. The truth

of the matter asserted by Betty is that the accident was

her fault, but the truth of the matter asserted by Ted is

that Betty said the accident was her fault. (Had Ted said

the accident was Betty’s fault, the statement would

No. 11-2134 11

still be an admission even though Ted had no personal

knowledge.) It is difficult to see how Ted’s statement is

not his own when its substance differs from Betty’s state-

ments. (The parties do not suggest that this case in-

volves adoptive admissions under FRE 801(d)(2)(B).)

Our independent research has turned up only one

case that arguably supports the Jordans’ position. In

Mahlandt v. Wild Canid Survival & Research Center, Inc.,

588 F.2d 626, 629 (8th Cir. 1978), one of the defendants

taped a note to his boss’s office door indicating that one

of the canid center’s wolves had bitten a child. The

Eighth Circuit held that the note was not hearsay

and was admissible against the defendant under Rule

801(d)(2)(A), remarking that “[i]t was his own state-

ment, and as such was clearly different from the reported

statement of another. Example, ‘I was told that . . . .’ ” Id.

at 630 (emphasis added) (ellipsis in original). While at

first blush this case appears helpful to the Jordans,

closer analysis reveals otherwise. Mahlandt cited Cedeck v.

Hamiltonian Federal Savings & Loan Ass’n, 551 F.2d

1136, 1138 (8th Cir. 1977), in which the court applied

FRE 805 to hold that the part of the party’s “statement

which contains a reiteration of what someone told him

is not admissible as an admission by a party-opponent

since the author of the statement is unknown.” Several

other courts have followed Cedek and have applied

FRE 805 to party admissions to hold that an admission

repeating another’s statement is admissible only if the other

person’s statement is itself an admission or falls within an

exception to the hearsay rule. See, e.g., Vazquez v. Lopez-

Rosario, 134 F.3d 28, 34 (1st Cir. 1998) (“unattributed

12 No. 11-2134

statements repeated by party-opponents cannot

be admissible”); Carden v. Westinghouse Electric Corp.,

850 F.2d 996, 1002 (3d Cir. 1988) (excluding unattributed

hearsay repeated by party-opponent). Here, however, the

author of the reported statement (Betty) is known and

her statement is itself a party admission. Thus, assuming

without deciding that these cases properly applied

FRE 805 (notwithstanding the fact that personal knowl-

edge is not required for admissions), they do not

furnish support for the Jordans because the statements

reported by Ted (i.e., Betty’s statements) are not barred

by the hearsay rule; in point of fact, these cases actually

support the district court’s decision to admit

Ted’s statements.

It is true that there is not an overwhelming body of

case law supporting the defendants’ position, but there are

some cases. See, e.g., Yohay v. City of Alexandria Emps. Credit

Union, Inc., 827 F.2d 967, 970 (4th Cir. 1987) (“that [A]

testified that [B] had told [A] what [C] had said provides no

basis for exclusion,” where both the statement from C to B

and the statement from B to A constituted admis-

sions under FRE 801(d)(2)(D)). Indeed, it appears that

this court already rejected the basic premise of the

Jordans’ argument in United States v. Hubbard, 22 F.3d

1410 (7th Cir. 1994). In that case, the government sub-

mitted into evidence taped recordings of Anderson’s

phone conversations with Hubbard, which had occurred

after Anderson had been arrested and was in police

custody. The court found that Anderson’s statements

were voluntary and that they were nonhearsay admis-

sions of a party-opponent under FRE 801(d)(2)(A). Id.

No. 11-2134 13

at 1417. Anderson contended that FRE 801(d)(2)(A)

was inapplicable because it applies only to a party’s “own

statement,” and his statements had been “made at the

bequest of the police and were, therefore, not his own,” but

the court rejected this argument, explaining that it was

simply another attempt to challenge the voluntariness

of his statements. Id. at 1417 n.2.

The Sixth Circuit has also rejected an argument similar

to that pressed by the Jordans. In Jewell v. CSX Transporta-

tion, Inc., 135 F.3d 361, 362-63 (6th Cir. 1998), a husband,

a wife, and their six-year-old daughter Brittney were in

a pickup truck that collided with a train; the mother

and Brittney sued CSX for negligence (the husband

was killed in the accident). At trial, CSX introduced

testimony from multiple witnesses indicating that Brittney

had told them that her parents had been arguing immedi-

ately before the collision and that, when she told them

a train was coming, they told her to be quiet. Plaintiffs

offered evidence that Brittney had suffered brain damage,

had no memory of the accident, and likely had overheard

conversations among family members speculating that

the accident had been the result of the parents’ arguing.

On appeal, plaintiffs contended that Brittney’s statements

should not have been admitted on the ground that

they were not made in her “individual” capacity because

she had no “independent” recollection of the accident,

on account of her brain injuries. The court rejected this

argument, reasoning that plaintiffs “have confused the

terms ‘independent’ and ‘individual.’ ‘Independent’ and

‘individual’ are not synonymous. Brittney was the source

of the statements. She made the statements in her indi-

14 No. 11-2134

vidual capacity, whether or not she had an independent

recollection of the matters she spoke about.” Id. at 365.

Similarly, in this case, Ted’s statements were made in

his individual capacity.

Ted’s statements qualify as statements by a party-oppo-

nent under FRE 801(d)(2)(A). (Given our resolution

of that issue, we do not address the defendants’ alterna-

tive theory that Ted’s statements qualify as excited utter-

ances under FRE 803(2).) It is undisputed that Ted is a

party and that his alleged statements were offered

against him. It is also clear that Ted “made” the state-

ments—i.e., they were spoken by him. Ted had the op-

portunity at trial to deny that he made those statements,

an opportunity of which he availed himself, and it

was within the jury’s province to determine whether

Ted did or did not make them.

So now we have enough information to address the

Jordans’ challenges to Trooper Litt’s trial testimony, in

which the following exchange between defense counsel

and Trooper Litt occurred:

Q: What did [Ted] say?

A: He stated that while she was on scene, he asked

what happened; and she stated, “I’m sorry. I’m

sorry. It’s not the trucker’s fault. It was mine.”

....

Q: Did [Binns] tell you anything relative to what

[Betty] had said?

A: He actually gave me the exact same state-

ment almost verbatim. It was the same thing.

No. 11-2134 15

“I’m sorry, I’m sorry. It wasn’t the trucker’s

fault. It was mine.”

The defendants contend that the Jordans forfeited any

claims of error regarding Trooper Litt’s testimony by

failing to assert a contemporaneous objection, e.g., Griffin

v. Foley, 542 F.3d 209, 218-19 (7th Cir. 2008), and they

argue that this is not an exceptional case warranting

relief under the doctrine of plain error, see Jackson v.

Parker, 627 F.3d 634, 640 (7th Cir. 2010). The Jordans

respond that they did not need to object because they

had done so earlier that day and their objections had

been definitively overruled. See Fed. R. Evid. 103(b);

Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) (en banc).

Although we doubt that the Jordans properly preserved

these claims of error, we will proceed as if they did be-

cause it is inconsequential to the outcome of this appeal.

The trial court did not abuse its discretion in

allowing Trooper Litt to testify about what Ted said

that Betty had said. Neither Betty’s statement nor Ted’s

statement reporting Betty’s statement constitutes hear-

say, and the Jordans do not claim that the testimony

should have been excluded on other grounds. But the

trial court abused its discretion in allowing Trooper Litt

to testify about what Binns said that Betty had said be-

cause, while Betty’s statement was not hearsay, Binns’s

statement was inadmissible hearsay (the defendants

do not argue otherwise).

This brings us to the Crash Report. In that report,

Trooper Litt recorded the general “who, what, when,

16 No. 11-2134

where” observations customary for such reports. He also

provided a narrative in which he documented state-

ments from both Binns and Ted (he was unable to

interview Betty, who had already been rushed to the

hospital) and offered an opinion, based on what he had

observed and heard, as to the cause of the accident. Prior

to trial, the district court granted the Jordans’ motion

to exclude as untrustworthy Trooper Litt’s opinions as

to the cause of the accident; it reasoned that, although

the investigation was timely and unbiased, Trooper Litt

had been investigating accidents for only one year and

had not conducted an accident reconstruction at the

scene. See Fed. R. Evid. 803(8); Beech Aircraft Corp. v.

Rainey, 488 U.S. 153, 167 & n.11 (1988). Accordingly, the

defendants redacted the portion of the Crash Report’s

narrative containing Trooper Litt’s opinion and retained

the remainder of the narrative, including the following

two statements:

• D2 [Binns] stated that when he got to D1

[Betty] she had injuries to both her legs and

D1 was stating, “I am sorry, I am sorry, it

was not the trucker’s fault, it was mine.”

• D1’s husband [Ted] also stated that D1 said,

“I am sorry, I am sorry, it was not the

trucker’s fault, it was mine.”

The district court subsequently rejected the Jordans’

contention that the defendants had violated the

previous order by not redacting the entire narrative.

These statements, of course, are essentially the same

statements elicited from Trooper Litt during his trial

No. 11-2134 17

testimony, but because they were written into the

Crash Report, they are out-of-court statements representing

a third level of potential hearsay. The Jordans maintain

that the statements, like Trooper Litt’s opinion as to the

cause of the accident, should have been excluded. The

defendants, on the other hand, contend that they were

properly admitted under FRE 803(8), which removes the

hearsay bar for certain records and statements of public

offices, e.g., United States v. Blackburn, 992 F.2d 666, 671 (7th

Cir. 1993).

The public-records exception is justified on the assump-

tion that public officials will perform their duties

properly and without bias. See Fed. R. Evid. 803(8)

advisory committee’s note; United States v. De La Cruz,

469 F.3d 1064, 1069 (7th Cir. 2006). Three categories of

public records are covered by the exception, Fed. R. Evid.

803(8)(A)(i)-(iii) (formerly FRE 803(8)(A)–(C), respectively),

and though there are important differences among

the three, many public records fall into more than one

category. See Mueller et al., Evidence Practice Under the Rules,

supra, § 8.49, at 1008. The first category consists of records

that set out a public office’s activities. Fed. R. Evid.

803(8)(A)(i); see, e.g., Chesapeake & Delaware Canal Co. v.

United States, 250 U.S. 123, 128-29 (1919) (Treasury records);

United States v. Lechuga, 975 F.2d 397, 399 (7th Cir. 1992)

(court records). The second category encompasses rec-

ords that set out “a matter observed while under a

legal duty to report,” though there is an exception to

the exception in the context of criminal cases for

matters observed by law-enforcement personnel. Fed.

R. Evid. 803(8)(A)(ii); see, e.g., United States v. Meyer,

18 No. 11-2134

113 F.2d 387, 397-98 (7th Cir. 1940) (map prepared by

government engineer based on data compiled from

workers under his supervision). The third category is

comprised of records setting forth “factual findings from

a legally authorized investigation” (though in criminal

cases they may be used only against the government),

Fed. R. Evid. 803(8)(A)(iii), which includes evaluative

reports containing opinions and conclusions. See Beech

Aircraft Corp., 488 U.S. at 166-70; Young v. James Green

Mgmt., Inc., 327 F.3d 616, 624 (7th Cir. 2003) (administra-

tive findings concerning discrimination claims). Records

falling into one of these categories are presumptively

admissible but may be excluded, in the court’s discretion,

if the party opposing admission establishes that the cir-

cumstances indicate a lack of trustworthiness. Fed. R.

Evid. 803(8)(B); see also United States v. Romo, 914 F.2d

889, 896 (7th Cir. 1990).

As explained above, the defendants have failed to

identify a hearsay exception applicable to Binns’s state-

ment to Trooper Litt (and Binns’s statement to Niles)

and have essentially conceded that admission of

Trooper Litt’s testimony regarding that statement (as

well as Niles’s testimony concerning what Binns said)

was error. One might expect them to concede similarly

that Binns’s statement as recorded in the Crash Report

should have been excluded because, under FRE 805,

each layer of hearsay must be admissible on an independ-

ent basis. But they do not. Rather, relying on In re Oil

Spill by the Amoco Cadiz, 954 F.2d 1279, 1304-08 (7th

Cir. 1992) (per curiam), which held that expense reports

of French communes were admissible as public records,

No. 11-2134 19

the defendants contend that FRE 803(8) is a multi-

level exception that covers all hearsay contained in a

public record and that the report can be excluded only

if the party opposing admission sufficiently establishes

that the report is untrustworthy. The defendants

misread that decision.

Amoco Cadiz merely acknowledges the reality that in-

formation may be passed among multiple public

officials before being recorded in a document offered

at trial, and it holds that the record will not be ex-

cluded merely because its author does not have first-

hand knowledge of the reported matters. Id. at 1308;

Mueller et al., Evidence Practice Under the Rules, supra, § 8.49,

at 1008; cf. Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300,

1309-10 (5th Cir. 1991) (“[M]any government reports, as

with many expert witnesses, have to rely in part on

hearsay evidence, and the reports are not gen-

erally excluded for this reason.”). It does not suggest

that FRE 803(8) removes the hearsay bar for a statement

from a nongovernmental third-party contained in a

police report. On the contrary, “[p]olice reports have

generally been excluded except to the extent to which

they incorporate firsthand observations of the officer.”

Fed. R. Evid. 803(8) advisory committee’s note. This is

because the presumption of reliability that serves as the

premise for the public-records exception does not attach

to third parties who themselves have no public duty to

report. See 4 C.B. Mueller & L.C. Kirkpatrick, Federal

Evidence, §§ 8.86, 8.88, at 770-71, 783-84 (3d ed. 2007).

Accordingly, third-party statements contained in a

police report do not become admissible for their truth

20 No. 11-2134

by virtue of their presence in a public record and instead

must have an independent basis for admissibility.

See United States v. Wyatt, 437 F.2d 1168, 1170 (7th Cir.

1971); see also, e.g., United States v. Taylor, 462 F.3d 1023,

1026 (8th Cir. 2006); United States v. Mackey, 117 F.3d 24, 28-

29 (1st Cir. 1997); Miller v. Field, 35 F.3d 1088, 1091-92 (6th

Cir. 1994); Parsons v. Honeywell, Inc., 929 F.2d 901, 907

(2d Cir. 1991); United States v. Snyder, 787 F.2d 1429, 1434

(10th Cir. 1986); United States v. De Peri, 778 F.2d 963, 976-

77 (3d Cir. 1985); United States v. Pazsint, 703 F.2d 420, 424-

25 (9th Cir. 1983); United States v. Smith, 521 F.2d 957, 964-65

(D.C. Cir. 1975). So, irrespective of whether the Crash

Report is a public record, Binns’s statement contained

therein should have been excluded.

Much of the Jordans’ argument that Ted’s state-

ment should have been excluded is premised on their

incorrect view that Ted’s statement does not qualify as a

statement by a party-opponent. Yet they also contend

that the Crash Report, as admitted into evidence, does

not qualify as a public record under FRE 803(A)(iii) be-

cause it does not contain “factual findings” and is not

trustworthy. The unredacted Crash Report authored

by Trooper Litt undoubtedly constituted an evaluative

report entitled to the presumption of trustworthiness.

See, e.g., Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 45-46

(1st Cir. 1991). The district court found that the Jordans

had satisfied their burden of showing that Trooper Litt’s

opinions and conclusions regarding the accident’s cause

were untrustworthy, and the defendants have not chal-

lenged that ruling. Accordingly, the court redacted

those portions of the Crash Report and allowed the re-

No. 11-2134 21

mainder into evidence, which is permitted, see, e.g.,

De La Cruz, 469 F.3d at 1069.

The Jordans essentially contend that redaction of those

conclusions took the Crash Report outside the scope of

the public-records exception for evaluative reports. We

disagree. It is true that “the requirement that reports

contain factual findings bars the admission of statements

not based on factual investigation.” Beech Aircraft Corp.,

488 U.S. at 169. And it has been held that a transcript of

a third party’s statement generally does not constitute a

“factual finding.” See United States v. Ortiz, 125 F.3d 630,

632 (8th Cir. 1997); United States v. D’Anjou, 16 F.3d 604,

610 (4th Cir. 1994). But those cases involved third-

party statements that met the definition of hearsay and

did not fall into any of the exceptions to the hearsay

rule, and the “reports” in several of the cases were

merely transcripts of interviews with third parties. In

contrast, the Crash Report was not merely a transcript;

along with Ted’s and Binns’s isolated statements, it con-

tained Trooper Litt’s on-scene observations and the conclu-

sions that he reached based on all of the evidence

he had collected. We do not think the exclusion of

Trooper Litt’s opinions and conclusions removes the

Crash Report from the scope of the exception for evalua-

tive reports. Even if the redacted Crash Report is not an

evaluative report, it is a record of matters observed by

Trooper Litt under a legal duty to report. Fed. R. Evid.

803(8)(A)(ii); Dortch v. Fowler, 588 F.3d 396, 403 (6th Cir.

2009); De Peri, 778 F.2d at 977. Either way, the Crash

Report is a public record entitled to the presumption

of trustworthiness.

22 No. 11-2134

The Jordans argue that the Crash Report was untrust-

worthy seemingly for two reasons, namely, that Ted’s

statement is hearsay and that Ted denies having made

the statement. Again, Ted’s statement is a party admis-

sion and therefore is not hearsay. That the exclusion

of party admissions from the definition of hearsay is

based on the nature of our adversarial system, rather

than any indicia of reliability, is no reason to find the

Crash Report or Ted’s statement therein to be untrust-

worthy. Cf. Murrey v. United States, 73 F.3d 1448,

1455 (7th Cir. 1996) (“The fact of admission is a badge

of reliability sufficient to overcome the hearsay objection

to out-of-court statements offered for their truth.

People usually don’t make damaging admissions

unless they are true.”). There is absolutely no indication

that Trooper Litt was biased—indeed, the district court

found otherwise. Furthermore, Ted’s denial of having

made the statement goes to the credibility of the evidence,

not its admissibility. See Moss, 933 F.2d at 1306-08. The

Jordans have not met their burden of showing that

Trooper Litt used untrustworthy methods in authoring

the unredacted portions of the Crash Report. Thus, the

district court did not abuse its discretion in admitting

the portion of the Crash Report recording Ted’s statement

reciting what Betty had said: neither Betty’s nor Ted’s

statements are hearsay, and the Crash Report itself is

an admissible public record. See Clark v. Clabaugh, 20

F.3d 1290, 1294-95 (3d Cir. 1994) (no error in admitting

state police report containing party admissions); Baker

v. Elcona Homes Corp., 588 F.2d 551, 559 (6th Cir. 1978)

(no error in admitting police report containing witness’s

No. 11-2134 23

nonhearsay prior consistent statements under FRE

801(d)(1)(B)); cf. Onujiogu v. United States, 817 F.2d 3, 6

(1st Cir. 1987) (no error in admitting medical record

containing party admissions).

The Jordans also claim that the district court erred in

allowing defense counsel to use the Crash Report as

a demonstrative aid during opening statements. This

argument is woefully underdeveloped, consisting mostly of

conclusory statements and lacking pertinent legal author-

ity, so it is waived. See, e.g., Clarett v. Roberts, 657 F.3d 664,

674 (7th Cir. 2011) (“We have repeatedly held that undevel-

oped arguments are considered waived.” (citations omit-

ted)). Waiver aside, we find no reversible error. In re-

sponding to the Jordans’ objection, the district court

explained that defense counsel “is not to argue. He

simply is going to say what his evidence will prove; and

if it doesn’t, then he does that at his peril.” This was a

correct statement of the law. E.g., Testa v. Vill. of Mundelein,

Ill., 89 F.3d 443, 446 (7th Cir. 1996). Additionally, the jury

was instructed that “the lawyers’ opening statements

and closing arguments to you are not evidence.” Providing

a curative instruction protects against any prejudice

resulting from a lawyer’s reference during opening state-

ments to evidence that ultimately is not admitted during

trial. Id.; cf. United States v. Catalfo, 64 F.3d 1070, 1081

(7th Cir. 1995). And the Jordans have offered no reason

for us to conclude that the jury did not follow its instruc-

tions.

The final piece of evidence at issue in this appeal is

the Adjuster’s Report. In preparing that report, Niles

24 No. 11-2134

consulted the Crash Report and included the following

statement in the Adjuster’s Report: “The officer noted

on the report that the claimant’s husband arrived at the

scene prior to the claimant driver being trans-

ported. Mr. Jordan told the officer his wife told him

the accident was her fault and not the truck driver’s.”

The Jordans maintain that the district court abused its

discretion in admitting the Adjuster’s Report as a busi-

ness record under FRE 803(6).

The business-records exception removes the hearsay

bar for records kept in the course of a regularly

conducted business activity if making the records is

a regular practice of that business activity, so long as

“neither the source of information nor the method

or circumstances of preparation indicate a lack of trust-

worthiness.” Fed. R. Evid. 803(6); see Coates v. Johnson &

Johnson, 756 F.2d 524, 549 (7th Cir. 1985); United States v.

Chappell, 698 F.2d 308, 311 (7th Cir. 1983). Such records

are presumed reliable because businesses depend on

them to conduct their own affairs, so there is little if any

incentive to be deceitful, and because the regularity

of creating such records leads to habits of accuracy. See

United States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993);

Fed. R. Evid. 803(6) advisory committee’s note; see also

Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004) (“Because

a business depends on the accuracy of its recordkeeping,

its records, although not sworn, are likely to be at least

reasonably accurate, or at least not contrived for the

purpose of making the business look better if it is sued.”).

It is well established, though, that documents prepared

in anticipation of litigation are not admissible under

No. 11-2134 25

FRE 803(6). See Palmer v. Hoffman, 318 U.S. 109, 113-14

(1943); see also Melendez-Diaz v. Massachusetts, 557 U.S.

305, 321 (2009); Lust, 383 F.3d at 588; Blackburn, 992 F.2d at

670; Bracey v. Herringa, 466 F.2d 702, 704-05 (7th Cir.

1972); United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957);

Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d

1068, 1091 (10th Cir. 2001); Scheerer v. Hardee’s Food Sys.,

Inc., 92 F.3d 702, 706-07 (8th Cir. 1996). Litigation generally

is not a regularly conducted business activity. AMPAT/

Midwest, Inc. v. Ill. Tool Works Inc., 896 F.2d 1035, 1045

(7th Cir. 1990); see Palmer, 318 U.S. at 114 (accident report

created by railroad employee after an accident was not a

business record because its “primary utility [was] in

litigating, not in railroading”); Timberlake Constr. Co. v. U.S.

Fid. & Guar. Co., 71 F.3d 335, 342 (10th Cir. 1995) (“It is

well-established that one who prepares a document in

anticipation of litigation is not acting in the regular course

of business.”). And documents prepared with an eye

toward litigation raise serious trustworthiness concerns

because there is a strong incentive to deceive (namely,

avoiding liability). See Hoffman v. Palmer, 129 F.2d 976, 991

(2d Cir. 1942) (Frank, J.) (documents prepared for litiga-

tion are “dripping with motivations to misrepresent”),

aff’d, 318 U.S. 109; Lust, 383 F.3d at 588; AMPAT/Midwest,

Inc., 896 F.2d at 1045; Bracey, 466 F.2d at 704-05; see also

Fed. R. Evid. 803(6) advisory committee’s note (“Absence

of routineness raises lack of motivation to be accurate.”); cf.

Leon v. Penn Cent. Co., 428 F.2d 528, 530 (7th Cir. 1970)

(accident report prepared in anticipation of litigation at de-

fendant’s behest was admissible where it was offered

26 No. 11-2134

by plaintiff); Sana v. Hawaiian Cruises, Ltd., 181 F.3d

1041, 1046 (9th Cir. 1999) (same).

Here, U.S. Xpress hired Niles to prepare the

Adjuster’s Report and then offered that report into evi-

dence at trial. It is difficult to see what purpose, other

than preparing for litigation, is served by an insurance

adjuster’s report created after an accident investiga-

tion. Had Binns or another employee of U.S. Xpress

created the report, then it would clearly not be a

business record under Palmer and its progeny because

U.S. Xpress’s business is trucking, not litigation. This

case, however, presents an added wrinkle because

Niles was not an employee of U.S. Xpress. Yet this is a

distinction without a difference. See Certain Underwriters

at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th

Cir. 2000) (“Litigants cannot evade the trustworthiness

requirement of Rule 803(6) by simply hiring an outside

party to investigate an accident and then arguing that

the report is a business record because the investigator

regularly prepares such reports as part of his business.

If that were the case, parties that face litigious situa-

tions could always hire such nonaffiliated firms and

investigators to prepare a report and then seek to admit

the document over hearsay objection.”); see also Paddack v.

Dave Christensen, Inc., 745 F.2d 1254, 1258-59 (9th Cir. 1984)

(audit performed by third-party accounting firm was

not a business record because it was commissioned

only after accounting problems were suspected). The

primary motive for commissioning reports such as the

Adjuster’s Report “is a better indicator of trustworthiness

than the form of the investigation or the identity of

No. 11-2134 27

the investigator,” Sinkovich, 232 F.3d at 205. Moreover, a

nonaffiliated investigator may have pecuniary motives

to skew a report in favor of the client that hired him, for

a damaging report may result in the client looking else-

where next time around.

We conclude that the district court abused its discre-

tion in admitting the Adjuster’s Report into evidence.

The Jordans carried their burden of showing that the

Adjuster’s Report was an untrustworthy document pre-

pared in anticipation of litigation. See Shelton v. Consumer

Prods. Safety Comm’n, 277 F.3d 998, 1010 (8th Cir. 2002)

(opponent of business record bears burden of demon-

strating untrustworthiness); Graef v. Chem. Leaman Corp.,

106 F.3d 112, 118 (5th Cir. 1997) (same).

To recap, the district court did not abuse its discretion

in admitting either Trooper Litt’s testimony regarding

what Ted told him that Betty had said or the statement

in the Crash Report reflecting the same; each layer

of potential hearsay either is not hearsay or qualifies

under an exception to the hearsay rule. (Also, the Jordans

have failed to show error in the district court’s allowing

defense counsel to use the Crash Report as a demonstra-

tive aid during opening statements.) In contrast, the

evidence (from Trooper Litt and Niles) regarding what

Binns said Betty or Ted had said should not have been

admitted because Binns’s out-of-court statements are

hearsay and the defendants have failed to identify

an applicable exception. Additionally, the Adjuster’s

Report should not have been admitted because it was

28 No. 11-2134

an untrustworthy litigation document. Our diagram 3

therefore looks like this:

Betty ö Ted ö Trooper Litt* ö Crash Report* ö Adjuster’s

Report*

801(d)(2)(A) 801(d)(2)(A) 803(8) X

Betty ö Binns* ö Trooper Litt* ö Crash Report*

801(d)(2)(A) X 803(8)

Betty ö Ted ö Binns* ö Niles*

801(d)(2)(A) 801(d)(2)(A) X

So the Jordans have established that the district court

made a few evidentiary errors, but they are not entitled

to a do-over if those errors were harmless, Whitehead

v. Bond, 680 F.3d 919, 930 (7th Cir. 2012). Rather, to

3

The asterisks identify the links in the chains of communica-

tion admitted into evidence. The “Xs” indicate inadmissible

hearsay. The asterisked links that are struck through represent

the pieces of evidence that should have been excluded, while

the asterisked links that are italicized represent the properly

admitted pieces of evidence.

No. 11-2134 29

obtain a new trial they must demonstrate that there is

a significant chance that at least one of the errors

affected their substantial rights, that is, that an error

likely had a substantial effect on the jury’s verdict and

the result was inconsistent with substantial justice. See

Fed. R. Civ. P. 61; Fed. R. Evid. 103(a); Whitehead, 680

F.3d at 930; Farfaras v. Citizens Bank & Trust of Chi., 433

F.3d 558, 564-65 (7th Cir. 2006). Harmless-error analysis

is case-specific and requires an examination of the er-

ror(s) in light of the entire record. See Kotteakos v.

United States, 328 U.S. 750, 762-65 (1946). While there is

no magic formula for determining if an error was harm-

less, useful considerations include (but are not limited

to) whether the erroneously admitted evidence went to

a central issue, whether it was cumulative of other properly

admitted evidence, and the strength of the properly

admitted evidence. See Lemons v. Skidmore, 985 F.2d 354,

359 (7th Cir. 1993); Lubanski, 929 F.2d at 46; cf. Jones v.

Basinger, 635 F.3d 1030, 1052 (7th Cir. 2011). Where there

are several errors, each of which is harmless in its own

right, a new trial may still be granted if the cumulative

effect of those otherwise harmless errors deprives a

litigant of a fair trial. See Christmas v. City of Chicago,

682 F.3d 632, 643 (7th Cir. 2012).

All six pieces of evidence at issue in this appeal were

offered to establish that Betty had claimed fault for

the accident. But this was not the only evidence con-

cerning Betty’s statements. At trial, Binns, who was

called to testify during the Jordans’ case-in-chief, testified

on examination by both plaintiffs’ counsel and defense

counsel that he had heard Betty say the accident was

30 No. 11-2134

her fault and that Ted had told him that Betty had told

Ted the accident was her fault. U.S. Xpress claims

manager Keri Bukovitz also testified, without objection,

that Binns had told her that Betty had said the accident

was her fault. And although the Jordans successfully

challenged one statement from Niles’s trial testimony,

they do not challenge Niles’s testimony that “[Ted] indi-

cated to me that, ‘Your truck driver did nothing wrong

and that my wife said that your truck driver—your driver

did nothing wrong.’” Therefore, our comprehensive

diagram 4 looks like this:

4

Again, the asterisks identify the links in the chains of commu-

nication admitted into evidence. The asterisked links that are

struck through represent the pieces of evidence that should

have been excluded, while the asterisked links that are

italicized represent the properly admitted (or unchallenged)

pieces of evidence.

No. 11-2134 31

Betty ö Ted ö Trooper Litt* ö Crash Report* ö Adjuster’s

Report*

Betty ö Binns* ö Trooper Litt* ö Crash Report*

Betty ö Ted ö Binns* ö Niles*

Betty ö Binns* ö Bukovitz*

Betty ö Ted ö Niles*

As a general rule, errors in admitting evidence that is

merely cumulative of properly admitted evidence are

harmless. Holmes v. Elgin, Joliet & Eastern Ry. Co., 18 F.3d

1393, 1397 (7th Cir. 1994); see, e.g., United States v. Kane,

944 F.2d 1406, 1412 n.2 (7th Cir. 1991) (erroneous admis-

sion of report harmless where report merely reiterated

agent’s testimony); Pincus v. Pabst Brewing Co., 893 F.2d

1544, 1554 (7th Cir. 1990) (even if admission of attorney’s

notes were error it was harmless because notes were

“so thoroughly cumulative of” other evidence “that

the error was not prejudicial”); cf. Mason v. S. Ill. Univ. at

Carbondale, 233 F.3d 1036, 1047-48 (7th Cir. 2000) (er-

roneous exclusion of cumulative evidence was harmless).

32 No. 11-2134

The Jordans argue, without citing any authority, that

the fact that the evidence was cumulative increases the

likelihood that the errors were prejudicial. Their argu-

ment sounds more like an argument that the evi-

dence should have been excluded as unduly cumulative

under FRE 403. Cf. United States v. McKibbins, 656 F.3d

707, 712-13 (7th Cir. 2011). The problem, however, is

that they did not seek to have the evidence excluded

on this ground in the trial court and, if they did, they

do not couch their arguments on appeal in terms of

FRE 403. They also point out that the district judge ac-

knowledged that some of the challenged evidence

was prejudicial, and they contend that this demon-

strates the errors were not harmless. But even under

FRE 403, the fact that evidence is even highly prejudicial

is not sufficient to warrant exclusion; the evidence

must be unfairly prejudicial in that it may induce the

jury to reach a verdict on an improper ground, such as

emotion, instead of the evidence presented. See, e.g.,

United States v. Zahursky, 580 F.3d 515, 525 (7th Cir. 2009).

Not only was the improperly admitted evidence cu-

mulative, but the other evidence presented at trial

strongly favored the defendants’ position. 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. Betty, on the other hand, had not

obtained her motorcycle operator’s license until 2005;

No. 11-2134 33

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. There was also expert

testimony demonstrating that Binns could not have

been at fault based on principles of inertia, as well as

expert testimony that Betty had not been operating

her motorcycle in a reasonable manner. (The Jordans

also had an expert but they failed to include that evidence

in the record, so for purposes of appeal the defendants’

experts’ testimony is undisputed. Cf. Albrechtsen v. Bd.

of Regents of Univ. of Wis. Sys., 309 F.3d 433, 435-36 (7th

Cir. 2002).) Thus, even though the central issue at trial

was fault, the cumulative nature of the improperly ad-

mitted evidence coupled with this additional evidence

leads us to conclude that the improper evidence did

not have a substantial effect on the jury’s verdict.

The judgment is A FFIRMED.

4-4-13