The Seventh Circuit Court of Appeals held that even if an accident report is admissible as an admission by a party opponent under F.R.E. 801 (d)(2)(b) it may be excluded under Rule 403. In Mister v. Northeast Illinois Commuter R.R., ___ F.3d ___ (7th Cir., 1999) 2009 WL 1956333 plaintiff, a railroad employee, brought suit under FELA against his employer for injuries received on snow or ice in an unpaved parking lot. A railroad safety office prepared a handwritten report based on his discussion with two other railroad employees. According to the report, Metra had a similar incident a week earlier at the same spot. The trial court excluded the report on admission of a part opponent on the basis that the agent making the report had no personal knowledge on which to make the statement about the prior fall. The court further denied admission of the report under Rule 403 because it was unreliable based on multiple levels of hearsay and lack of precise factual statements.
The Court of Appeals first ruled that the court erred in not admitting the report as an admission of a party opponent because personal knowledge by the person making the report is not required. However, in holding that the Rule 403 exclusion was proper the court said:
“Fed. R. Evid. 403 requires that a district court determine whether the prejudicial effect of admitting such evidence outweighs its probative value and thereby renders it inadmissible. Aliotta, 315 F.3d at 763. What we have here is a non-hearsay report that is derived from multiple levels of hearsay. Although the report stated that a similar fall occurred in the “same spot,” no one knew what spot. No one knew exactly where Wyman had fallen and there is absolutely no basis to conclude that Mister slipped and feel in the same location as Wyman.
Although it would have been proper to admit the report and allow Metra to expose the statement’s unreliability on cross-examination, it was not improper to find the report unreliable based on the multiple levels of hearsay and lack of precise factual statements. We find that the district court did not abuse its discretion when it barred Kroner’s report, and the accompanying testimony about its contents.”