Monday, March 17, 2008

Notice and Hearsay

In Thomas v. Dootson, the central issue of the case was whether Dr. Dootson had notice that a surgical drill overheated prior to the injury to the patient. Testimony was offered that an assistant had told Dootson that the drill had malfunctioned on prior occasions. This testimony was objected to as hearsay. The Court held that it was not hearsay because it was not offered for the truth of the matter, but notice.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), SCRE. Conversely, statements offered not for the truth of the matter asserted, but rather as evidence of notice, do not constitute hearsay. Player v. Thompson, 259 S.C. 600, 610, 193 S.E.2d 531, 535 (1972).

From an evidentiary standpoint, the facts and analysis in Player mirror those in this case. In Player, the court held testimony a filling station attendant told the defendant she had slick tires prior to the accident did not constitute hearsay. Id. The testimony was not offered to prove the tires were slick, but only to establish the defendant had notice of her tires’ condition prior to the accident. Id. Other evidence established the slickness of the tires. Id.

Similarly in this case, Thomas attempted to offer additional testimony from Rivers that Dr. Dootson had been warned the drill was hot prior to the injury. The trial court improperly ruled the statement was hearsay. The testimony, just as in Player, was not offered for the truth of the matter asserted, but rather as evidence of notice. The argument for admissibility is at least equally strong here as in Player, for here we are presented with a concession concerning the defective condition of the surgical drill. It was error to exclude this testimony.

But doesn't having notice depend on the statements being truthful?

1 comment:

Klerk said...


It strikes me that notice is different from the truth of the matter. Regardless of whether the drill was actually hot or had malfunctioned on prior occasions (truth of the matter), someone having said this would have put the doctor on notice that it was possible.

Then again, this may be why hearsay reformation was a good idea :P.

Happy Easter