Alexander v. Greer
| Docket Number: | 2005-CA-01511-COA | |
| Oral Argument: | 03-22-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-26-2007 Opinion Author: GRIFFIS, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Medical evidence - Subsequent remedial measure - M.R.E. 407 - M.R.E. 403 - Prior consistent statement - M.R.E. 801(d)(1)(B) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 04-05-2005 Appealed from: Harrison County Circuit Court Judge: Roger T. Clark Disposition: JURY VERDICT FOR DEFENDANT Case Number: A2401-2003-00048 |
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| Party Name: | Attorney Name: | |||
| Appellant: | ALEXIS ALEXANDER |
AUSTIN R. NIMOCKS |
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| Appellee: | JOSEPH HUGH GREER | MARGARET P. MCARTHUR ROBERT W. ATKINSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Medical evidence - Subsequent remedial measure - M.R.E. 407 - M.R.E. 403 - Prior consistent statement - M.R.E. 801(d)(1)(B) |
| Summary of the Facts: | Alexis Alexander sued Joseph Greer to recover for injuries she sustained when Greer’s vehicle struck her, while she was walking home. The jury verdict found Greer not liable. Alexander appeals. |
| Summary of Opinion Analysis: | Issue 1: Medical evidence Alexander argues that the court erred in excluding evidence from Greer’s eye doctor visit thirty-eight days after the accident. She argues that the court erred in holding that the post-accident doctor visit was a subsequent remedial measure and that if the post-accident doctor visit was a subsequent remedial measure, then it should be allowed in for impeachment. M.R.E. 407 states that the evidence excluded are termed “measures.” Measure is defined as “an action taken as a means to an end.” It allows the exclusion of any action taken which would have made the event less likely to occur. The rule encourages corrective measures to be taken, or at the very least prevents the discouragement of making such correction by preventing their adverse use in litigation. Following the accident, where Greer failed to see a pedestrian for whatever reason, he visited an eye doctor to have his vision examined. Applying the rule to these facts, Greer took a measure (having his vision examined) after the accident or event, and if he would have visited the doctor earlier any problems with his vision might have been corrected. Failure to exclude such evidence could discourage Greer from seeking help with any vision problems, allowing the potential for more accidents to occur subject to his impaired vision, that is if there is any impairment of his vision. These facts, while they involved a post-accident medical visit, follow the definition and principle found in Rule 407. Impeachment is an exception to Rule 407. Without the trial court’s prior ruling that the post-accident medical visit could not be entered into evidence, Alexander could have used Greer’s statement to the eye doctor that he was having trouble focusing to impeach Greer’s assertion that he had no eye problems. While the post-accident medical visit could not come in to prove that Greer was negligent, the trial judge should have, at the very least, allowed Alexander to use it for the sole purpose of impeachment. The evidence would still have to pass the general filter of M.R.E. 403. Greer was the only individual who was able to recall what happened at the time of the accident. His credibility as to what he tells the jury is paramount in such a case. The potential probative value of the statement to the doctor is not outweighed by any unfair prejudice. Thus, the trial judge abused his discretion for failing to allow evidence from the post-accident medical visit to be used solely for impeachment of Greer. Issue 2: Prior consistent statement Alexander argues that the court erred in allowing into evidence a prior consistent statement of Greer made to his insurance company shortly after the accident. Greer told the insurance company that he dimmed his headlights due to oncoming traffic, and shortly after the car passed Greer heard Alexander hit the passenger side of his car. Clearly, under M.R.E. 801(d)(1)(B), once Alexander challenged Greer’s recounting of oncoming traffic as a fabrication, Greer’s statement to his insurance company would be admissible. However, a prior consistent statement introduced to rebut a charge of recent fabrication or improper motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but was inadmissible if made afterwards. Greer made the statement eleven days after the accident happened when he was reporting to his insurance company of a potential liability against him. While suit had not been filed, the potential for a large amount of liability had arisen. While Greer may have been truthful when speaking with his insurance company, the motive to fabricate and potentially avoid the looming liability existed. Therefore, Greer’s prior consistent statement to his insurance company would not be admissible under Rule 801(d)(1)(B). Without a separate permissible exception to the hearsay rule, the statement should have been excluded. Therefore, the trial judge abused his discretion in allowing this statement to be placed into evidence. |
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