Depoy et. al. v. The Trustees of the Gill Odd Fellows’ Home of Vermont, No. 155-3-11 Wrcv (Teachout, J., Nov. 26, 2013).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text
and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                              STATE OF VERMONT

SUPERIOR COURT                                                                          CIVIL DIVISION
Windsor Unit                                                                            Docket No. 155-3-11 Wrcv

TRICIA DEPOY and
NANCY GRATTAN,

         Plaintiffs,

v.

THE TRUSTEES OF THE GILL ODD
FELLOWS’ HOME OF VERMONT,

         Defendant.

                                           DECISION
                     Defendant’s Motion in Limine (Administrative Decision)
                                          (Motion #16)

      This matter is before the court on The Trustees of the Gill Odd Fellows’ Home of
Vermont’s (“Defendant’s”) Motion in Limine to Preclude Plaintiffs from Offering into
Evidence The Administrative Decision In re: Leslie Whittington, filed September 9,
2013.

        On January 6, 2011, Administrative Law Officer George K. Belcher issued
“Findings of Fact, Conclusions of Law, and Order Concerning Charges of Unprofessional
Conduct” (the “Decision”) in the matter of In re: Leslie Anne Whittington. The Decision
upheld some of the charges of unprofessional conduct against Leslie Whittington,
Defendant’s former administrator, but dismissed others. Through a motion in limine,
filed September 9, 2013, Defendant sought to exclude the Decision, claiming that it
constitutes hearsay, is irrelevant, and would be unfairly prejudicial if admitted.

        Tricia Depoy and Nancy Grattan (collectively, “Plaintiffs”) opposed this motion
on September 24, 2013, asserting that Vermont law does not categorically ban other
cases’ judicial findings from being admitted into evidence and that, here, the Decision
should be admitted because it qualifies for the public records exception to the hearsay
rule. Defendant replied on October 1, 2013, countering that the Decision should not be
admitted under any hearsay objection based on the statutory language and the weight of
the relevant case law.

        On October 28, 2013, Defendant filed a supplemental memorandum in support of
its motion in limine, arguing that a recent Supreme Court opinion regarding the Decision
should also be inadmissible because, much like the Decision, it constitutes hearsay.
                                               ANALYSIS

        V.R.E. 803(8) establishes that “records, reports, statements, or data compilations
in any form of a public office or agency setting forth its regularly conducted and
regularly recorded activities, or matters observed pursuant to duty imposed by law and as
to which there was a duty to report, or factual findings resulting from an investigation
made pursuant to authority granted by law” are excluded from the hearsay rule and,
therefore, admissible. V.R.E. 803(8). Plaintiffs argue that the Decision qualifies for this
hearsay exception.1 Defendant counters that the Decision is inadmissible hearsay.

         Defendant has the better argument. “Judicial findings in other cases proffered as
evidence are generally characterized as… hearsay.” Blue Cross and Blue Shield of New
Jersey, Inc. v. Philip Morris, Inc., 141 F. Supp. 2d 320, 323 (E.D.N.Y. 2001); see 2
McCormick on Evid. § 298 (7th Ed.) (noting that historically courts have been “unwilling
to admit judgments in previous cases if neither res judicata nor collateral estoppel applied
under the theory they were hearsay.”). One of the reasons for this general rule relates “to
the danger of undue prejudice” that would result if judicial findings from other
proceedings were admitted. 2 McCormick on Evid. § 298. This specific concern arises
because “juries may have difficulty grasping the distinction between a prior judgment
offered as evidence and one that is conclusive, giving the judgment binding effect even if
this is contrary to substantive law.” Id. The fact that the public records hearsay
exception “may be sufficient to overcome the first level of hearsay involved in a written
government document” does not mean that it overcomes the dangers inherent in
admitting previous judicial decisions. Needham v. Coordinated Apparel Group, Inc., 174
Vt. 263, 274 (Vt. 2002).

        Here, the danger of undue prejudice if the Decision is admitted is particularly
high. The Decision represents the findings and conclusions of an administrative law
officer involving different parties, addressing different facts, and applying different
standards than are relevant to this case. These differences limit the Decision’s connection
to the facts here and increase the possibility that determinations in the Decision are
inapplicable. Accordingly, the Decision is inadmissible.

       For the same reasons, the recent Supreme Court opinion addressing the Decision,
Whittington v. Office of Professional Regulation, No. 2012-058, is also inadmissible.
The same concerns apply to the Supreme Court’s opinion. In fact, because this opinion
was issued by the Supreme Court, a higher authority, it increases the risk that jurors
would find it determinative on the issues here. Because of this risk of confusing the jury,
the Supreme Court’s opinion regarding the Decision must be excluded.




1
  Plaintiffs concede, however, that any portion of the Decision that “directly quotes witness testimony” is
inadmissible. Pls.’ Resp. in Opp., filed Sept. 24, 2013, at p.2, n.2.

                                                      2
                                         ORDER

        Defendant’s Motion in Limine is hereby granted. However, because Defendant
agreed to “stipulate to the existence and date of the Decision and the sanctions it imposes
against Ms. Whittington, to the extent those facts might become relevant,” Def.’s Mot. in
Limine, filed Sept. 9, 2013, at p. 2, those facts will be admissible.

       Dated at Woodstock, Vermont, this ___ day of November, 2013.



                                             Honorable Mary Miles Teachout
                                             Superior Court Judge




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