                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2008

McAdams v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1655




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                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-1655


                     ISABELLE MCADAMS, Individually and as
                       Executrix of the Estate of Nate McAdams,

                                                Appellant

                                           v.

                 UNITED STATES OF AMERICA; JOHN DOES 1 - 5
                     (Fictitious Name as Maintenance); I/J/S/A


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. Civil No. 05-cv-06331)
                       Magistrate Judge: Hon. Charles B. Smith


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 21, 2008

                   BEFORE: SMITH and COWEN , Circuit Judges
                        and THOMPSON*, District Judge

                               (Filed: October 28, 2008)


                                      OPINION




*Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
COWEN, Circuit Judge.

       Appellant, Isabella McAdams, individually and as the Executrix of the Estate of

Nace McAdams, her late husband, appeals three evidentiary rulings made during the trial

of her Federal Tort Claims Act claim. She argues that she is entitled to a new trial

because the court committed reversible error in excluding evidence and abused its

discretion in denying her a negative inference. Because we find neither error, nor abuse

of discretion, we will affirm the judgment of the District Court.

I. BACKGROUND

       On December 10, 2003, McAdams fell on the marble floor in the lobby of the

Veteran’s Administration Medical Center (“VAMC”) located at Woodland Avenue in

Philadelphia. The fall broke McAdams hip. At the time, McAdams was 71 years old,

and a physically active individual. The accident occurred while McAdams was

accompanying her husband to a biopsy appointment.

       McAdams crossed the VAMC’s lobby three times on December 10. Upon her

arrival, she walked, without incident, across the lobby, to the bank of elevators. Later,

she returned to the ground floor in an elevator and walked across the lobby to the

hospital’s pharmacy. McAdams slipped as she stepped out of the elevator, and then again

as she crossed the lobby from the elevators to the pharmacy. She did not fall as a result of

either these occurrences. After waiting for a prescription to be filled, McAdams and her

husband left the pharmacy and headed across the lobby. As McAdams was crossing near



                                             2
an information desk, she slipped and fell to the ground.

       McAdams filed a complaint in the District Court for the Eastern District of

Pennsylvania which sought recovery for her injuries from the VAMC under the Federal

Tort Claims Act. On the consent of the parties, the matter was referred to a Magistrate

Judge for trial.

       At trial, McAdams described the events of December 10, 2003, and the medical

care that she received. Her explanation for why she fell when crossing the VAMC’s

lobby was that “the floor was obviously slippery.” (Appellant’s App. Vol. 2 at 27.) She

stated that she did not recall anything unusual about the condition of the floor as she was

more concerned with picking herself up than conducting an investigation. McAdams also

testified that when she was taken for x-rays in the VAMC, an employee said to her that

the first floor was “like a skating rink.” (Appellant’s App. Vol. 2 at 29.) The

Government objected and moved to strike on the grounds that the statement was hearsay.

       At the close of the plaintiff’s case, McAdams’s attorney moved for his remaining

exhibits to be entered into evidence. The Government objected to the admission of a

letter from the Regional Counsel for the Department of Veterans Affairs. The Magistrate

Judge declined to accept it into evidence. McAdams’s attorney also brought to the

Magistrate Judge’s attention that in its answers to McAdams’s discovery requests for

records or information on the maintenance of the floors in the VAMC’s lobby, the

Government had responded that no such documents existed. Counsel argued that the



                                             3
testimony of William Rucker, the chief of the environment care section for the VAMC,

suggested that internal maintenance records are kept, and if located, might identify who

had been assigned to the hospital lobby on December 10, 2003.

       The Magistrate Judge ruled that McAdams had failed to prove that the VAMC had

breached a duty owed to her as a business invitee since there was no evidence of the

existence of a dangerous condition, of which the VAMC either was, or should have been,

aware; nor was there any evidence to show that the VAMC had either actual or

constructive notice of the lobby floor being slippery. The court also declined to grant

McAdams a negative inference for spoliation of evidence.

       The District Court entered judgment for the Government. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

II. ANALYSIS

       We review the decision to admit or exclude evidence, as well as the decision to

grant or deny an evidentiary inference, for abuse of discretion. Marra v. Phila. Hous.

Auth., 497 F.3d 286, 297 (3d Cir. 2007); Hechinger Inv. Co. of Del. v. Universal Forest

Prods., 489 F.3d 568, 574 (3d Cir. 2007). The interpretation of the Federal Rules of

Evidence, however, receives plenary review. Marra, 497 F.3d at 297.

              A. Vicarious Admissions

       McAdams argues that the statement of the VAMC employee, that the first floor

was like a skating rink, was admissible as the statement of a party opponent under Rule



                                             4
801(d)(2)(D) of the Federal Rules of Evidence.1 It is not clear, however, whether the

Magistrate Judge ever ruled on the admissibility of this statement.2 Even if it is assumed

that the Magistrate Judge excluded the statement as hearsay, there was no abuse of

discretion.

       For Rule 801(d)(2)(D) to apply, the statement must concern a matter within the

scope of the declarant’s agency or employment. See Blackburn v. United Parcel Serv.,

Inc., 179 F.3d 81, 97 (3d Cir. 1999). McAdams presented no evidence that the x-ray

technician was responsible for the condition or maintenance of the hospital floors. Nor

did McAdams provide any other basis for concluding that the state of the floors was a

matter within the scope of an x-ray technician’s employment. From the perspective of

Rule 801(d)(2)(D), there is no difference between the x-ray technician who says that the

lobby floor is like a skating rink and another patient in the hospital who voices the same

opinion—both statements would constitute inadmissible hearsay.3

       McAdams also argues in a footnote that the statement is admissible under Rule



       1
         Rule 801(d)(2)(D) provides that a statement is not hearsay if it is offered against
the party and was made “by the party’s agent or servant concerning a matter within the
scope of the agency or employment . . . during the existence of the relationship.”
       2
        At two points during trial, the Government objected on hearsay grounds to the
admission of the statement. Both times, the Magistrate Judge considered the parties’
arguments, but did not rule.
       3
         The Magistrate Judge recognized that the statement was beyond the scope of the
x-ray technician’s employment; he did not, as McAdams maintains, suggest that the
statement was inadmissible under Rule 801(d)(2)(C).

                                             5
801(d)(2)(C) because the VAMC’s fall reduction program authorizes all employees to

investigate and report falls that occur in the hospital.4 The x-ray technician’s statement,

however, was not made in the context of an investigation of McAdams’s fall, and no

other basis for the x-ray technician’s authorization to speak on the condition of the floors

was provided.

       Finally, McAdams argues that even if the x-ray technician’s statement was

inadmissible for its truth, it should nevertheless have been admitted to establish notice to

the VAMC that the lobby floor was slippery. The Magistrate Judge ruled that there was

no way of knowing when the last time the x-ray technician had walked across the hospital

lobby and found it slippery. (Appellant’s App. Vol. 2 at 30, 114.) We find no abuse of

discretion by the Magistrate Judge in excluding the statement.

              B. Relevance

       McAdams argues that the Magistrate Judge erred in excluding a letter that she

received from the Department of Veterans Affairs’ Regional Counsel. The letter stated

that when a third party is found to be liable for an injury, which required the United States

to provide hospitalization or other medical care, the United States is entitled to recover

the cost of that care from the third party. McAdams argues that the letter is evidence of

the VAMC’s belief that a third party was responsible for her injury. At a minimum,


       4
        Rule 801(d)(2)(C) provides that a statement is not hearsay if the statement is
offered against a party and was made “by a person authorized by the party to make a
statement concerning the subject.”

                                              6
McAdams submits that the letter suggests that some internal investigation regarding her

accident had been conducted.

       We find no abuse of discretion in the Magistrate Judge’s decision to exclude the

letter. Following the proffer, the court expressed its opinion that the letter lacked

relevance.5 In explaining that the letter was merely saying that if McAdams did find a

liable third party, then the VAMC expected reimbursement for the services that it

provided, the Magistrate Judge implicitly found that the letter had no bearing on the case.

Consequently, we perceive no error in the decision to exclude the letter.6

              C. Spoliation Inference

       Finally, McAdams argues that the Government’s failure to produce internal

records or reports, which the trial testimony suggested may, or at least should, have been

available, entitled her to an adverse negative inference for spoliation of evidence. An

adverse negative inference is an extreme remedy. Although the court was troubled by the

Government’s failure to maintain or provide records and reports which may have lead to

the discovery of additional witnesses, it concluded that the conduct did not rise to the



       5
         Rule 402 of the Federal Rules of Evidence states that “[e]vidence which is not
relevant is not admissible.” Rule 401 defines relevant evidence as anything that has the
“tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”
       6
        McAdams argues that the letter from the VA’s Regional Counsel was admissible
under Rule 801(d)(2) as the statement of a party opponent. However, the letter’s lack of
relevance ends the admissibility inquiry. That the statements in the letter may be covered
by a hearsay exception has no bearing on the threshold determination of relevance.

                                              7
level of spoliation of evidence. The Magistrate Judge found that blame for the loss of

evidence was shared by McAdams, who could have taken additional steps to obtain the

identity of potential witnesses. We conclude that the court did not abuse its discretion in

declining to grant an adverse negative inference.

III. CONCLUSION

       For the reasons set forth above, the judgment of the District Court will be

affirmed.




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