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Mizell v. Glover9/3/2002
extrinsic evidence.
We believe extrinsic evidence can be oral or written, as it is the source of the evidence that determines whether it is extrinsic, not whether it is introduced in oral or written form at trial. Rule 608 permits questioning about the underlying event from the actor in the event, not rumors or reports of what others perceived about the event. For example, the Mizells concede Dr. Glover could have asked Dr. Marne, "Did you make misrepresentations to your insurance company regarding a claim?" However, asking whether a jury found he made misrepresentations to his insurance company crosses over into the extrinsic evidence category. Essentially, Rule 608(b) allows specific instances of conduct to be inquired into on cross, but does not allow those instances of conduct to be proved by extrinsic evidence. Reading a jury interrogatory into the record is more than inquiry into past conduct; the purpose of doing so is to prove past conduct. Although Dr. Marne could have been questioned (and was questioned) about the conduct that was the subject of the suit, he should not have been questioned directly regarding what a previous jury allegedly concluded about such conduct.
Although the trial court improperly admitted the evidence of the jury's interrogatory, Dr. Glover argues the error was harmless. We disagree. Although Dr. Glover correctly points out that the Mizells' counsel elicited information from Dr. Marne about the Minnesota Life suit on direct and that he properly impeached Dr. Marne on his professional history and qualifications during cross-examination, he fails to consider the impact of his misstatement of the jury's finding in his closing argument. In closing, Dr. Glover's counsel told the jury Dr. Marne had been found "guilty of fraud by a jury" and admonished the jury "to consider all those things in deciding on the credibility of Dr. Marne." This statement is incorrect and highly prejudicial.
Dr. Marne was the Mizells' only expert witness to testify that Dr. Glover had breached the podiatrists' standard of care. As such, his testimony and credibility were critical to the Mizells' case. Dr. Glover used the alleged jury finding not simply to prove past conduct, but to show what a previous jury had found regarding Dr. Marne. The purpose of introducing this evidence was to argue to this jury that they should be influenced by the actions of a previous jury. Further, Dr. Glover's counsel gave the jury false information when he told them Dr. Marne had been found "guilty of fraud." In light of these circumstances, we do not believe the Mizells received a fair trial.
Moreover, we note the Minnesota Life jury interrogatory was inadmissible on an additional ground as hearsay. We find persuasive the jurisprudence developed by the Fourth Circuit and other federal courts which have recognized that judicial findings of fact from one trial constitute hearsay when offered for admission in the context of another trial. See Nipper v. Snipes, 7 F.3d 415 (4th Cir. 1993); U.S. Steel, LLC v. Teico, Inc., 261 F.3d 1275 (11th Cir. 2001); U.S. v. Jones,29 F.3d 1549 (11th Cir. 1994); Blue Cross and Blue Shield v. Philip Morris, Inc., 141 F.Supp. 2d 320 (E.D.N.Y. 2001). In Nipper, the Fourth Circuit held that judicial findings constitute hearsay and do not fall within any of the exceptions to the hearsay rule, including the exception for pubic records, Rule 803(8), FRE. Nipper. The Fourth Circuit made clear that its holding was firmly rooted in the common law. Id. (Citing 5 John H. Wigmore, Wigmore on Evidence ยง 1671a (James H. Chadbourn rev. 1974) (citations omitted)).
The federal courts addressing this issue point to the great weight and obvious prejudicial effe
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