In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2234

GARY MISTER,

Plaintiff-Appellant,

v.

NORTHEAST ILLINOIS COMMUTER RAILROAD

CORPORATION, doing business as

Metra Metropolitan Rail,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:06-cv-00407—Geraldine Soat Brown, Magistrate Judge.

ARGUED FEBRUARY 11, 2009—DECIDED JULY 9, 2009

Before BAUER, RIPPLE and WOOD, Circuit Judges.

BAUER, Circuit Judge. After a long work day, Gary Mister

walked toward his car, slipped, fell, and sued his employer, the Northeast Illinois Commuter Railroad Corporation (Metra), under the Federal Employers Liability Act.

45 U.S.C. § 51 et seq. At the hospital, Mister could not

discuss the incident with Metra Safety Officer Kirk Kroner

because he was in pain. But Kroner discussed the fall
2 No. 08-2234

with Mister’s supervisors, who were present at the

hospital but did not witness the fall. Kroner handwrote

a report of his findings, which included a statement

that another employee had fallen the previous week at

the same spot. The district court found the report inadmissible; it determined that the report was inherently

unreliable since Kroner had no personal knowledge of

the events described. On appeal, Mister argues that the

report should have been admitted as an admission by a

party opponent pursuant to Federal Rule of Evidence

801(d)(2)(D). For the following reasons, we affirm.

I. BACKGROUND

On January 25, 2005, Mister arrived at work, parked in

an unpaved lot (where parking was prohibited) approximately 15 feet from the train on which he would work

that day, then worked his “run” (which is a full-day shift),

and returned to the station. On the short walk back to

his car, Mister slipped on snow or ice and fell.

Mister’s wife was at the station and took him to

the hospital. Pursuant to Metra policy, Mister informed

his on-duty supervisor, Bob Tague, about his accident.

Tague reported the fall to district superintendent

Hersey Steptoe. Once informed, Tague and Steptoe

made their way to the hospital to make sure Mister was

safe and to investigate the event.

Metra’s Safety Officer, Kroner, joined the other Metra

officers at the hospital. Kroner’s job required that he

ensure that all safety rules were complied with and, in
No. 08-2234 3

case of an employee injury, to investigate the accident and

summarize his findings in a report. At the hospital,

Kroner was not able to discuss the accident with Mister

due to Mister’s pain. Instead, Kroner simply discussed

the event with Tague and Steptoe and recorded his

finding on a single sheet of loose-leaf paper.

According to the report, “[Metra] had a similar

incident less then [sic] a week earlier in the same spot.”

This statement referred to a slip and fall reported by

another Metra employee, Wally Wyman. Apparently,

Wyman parked in the same unpaved lot and also

slipped on ice. No one knew the details of Wyman’s fall.

More importantly, despite stating that it was in the

same spot, Kroner did not know where either Mister’s

or Wyman’s fall had taken place.

At trial, Mister attempted to introduce the report as a

party admission under Fed. R. Evid. 801(d)(2)(D) and have

the Metra officers testify about the report’s contents—

mainly, Wyman’s accident. The district court found the

report inadmissible and did not allow testimony

regarding it; she found the report inherently unreliable

and stated, “[t]he agent has to have a basis for making

the statement. [Kroner] has no personal knowledge on

which to make that statement, and [Mister has not] established a foundation for it.” Ultimately, the court barred

the report and its accompanying testimony. The district

court further denied the report under Fed. R. Evid. 403.

It stated that “even under Rule 403, the document

should not be admitted. [Kroner’s] testimony is contrary.

It undermines his ability to draw the conclusion that
4 No. 08-2234

is stated in that letter that [Metra] had an accident at

the . . . same spot . . . because [Kroner] testified that he

didn’t know where Gary Mister fell.”

The jury returned a verdict in favor of Metra and

Mister timely appealed.

II. DISCUSSION

Mister argues that the district court erred when it

refused to admit Kroner’s report under Fed. R. Evid.

801(d)(2)(D), and allow Metra officers to testify about

said report. We review the court’s evidentiary rulings

for an abuse of discretion. Aliotta v. National Railroad

Passenger Corp., 315 F.3d 756, 759 (7th Cir. 2003). Under this

standard, “we will not find error unless the court’s decision is based on an erroneous conclusion of law or

the record contains no evidence on which the court rationally could have based its decision or the supposed facts

which the court found are clearly erroneous.” Young v.

James Green Mgmt., Inc., 327 F.3d 616, 621 (7th Cir. 2003).

Kroner’s report, and its reference to Wyman’s fall,

are certainly hearsay in the usual sense of that term.

Kroner wrote the statement based on information provided to him by Tague, who had learned it from Mister,

who was presumably told by Wyman that he had fallen

a week earlier. But nevertheless, “Rule 801(d)(2), on its

face, merely defines as non-hearsay certain hearsaylike evidence.” Aliotta, 315 F.3d at 761. Under Rule

801(d)(2)(D), “[a] statement is not hearsay if . . . [t]he

statement is offered against a party and is . . . a statement
No. 08-2234 5

by the party’s agent or servant concerning a matter

within the scope of the agency or employment, made

during the existence of the relationship . . . .” United

States v. Swan, 486 F.3d 260, 264-65 (7th Cir. 2007) (citing

Fed. R. Evid. 801(d)). This Rule “simply requires that

the statement be made by an individual who is an agent,

that the statement be made during the period of the

agency, and that the matter be within the subject matter

of the agency.” Young, 327 F.3d at 622.

The district court refused to admit this statement on the

ground that it was inherently unreliable since it lacked

foundation and was based on various levels of hearsay.

Metra argues that the requirement of first-hand knowledge is imbedded within the Rule and Kroner simply

had no first-hand knowledge of the matters about which

he wrote. Neither Kroner, Tague, nor Steptoe were

present during Mister’s or Wyman’s fall or knew the

location of Wyman’s fall. Mister did not discuss his

fall with the report’s author, Kroner, and Kroner did not

know where Mister had fallen when he wrote the statement. Kroner’s investigation only included what Tague

and Steptoe may have been told about the previous

incident. Thus, Metra claims that the document lacks

the proper foundation to be admitted as a party admission.

Metra’s position is this: a district court must exclude

statements made in a corporate officer’s report, who was

hired to investigate incidents by discussing the event

with other corporate employees and to summarize

their accounts of the event in a report, if the officer

lacked first-hand knowledge of the incident.
6 No. 08-2234

We disagree with that position. Metra would have us

exclude a great chunk of corporate testimony from employees because they rely on information that other

people have told them in the course of the job.

Briefly, Kroner’s report meets all of the Rule’s criteria to

be classified as non-hearsay. Undisputably, the report

that was offered by Mister against his employer Metra,

was prepared in the usual course of business, by Metra’s

Safety Officer (the agent) investigating Mister’s work

accident. Rule 801(d)(2)(D) does not require anything

else along the lines of internal verification of the

report’s contents. See Koszola v. Bd. of Educ., 385 F.3d 1104,

1110 (7th Cir. 2004) (statement admissible under

801(d)(2)(D) even though district court refused to

consider it because it lacked proper evidentiary foundation). Accordingly, we believe that the district court

erred in this finding and that Kroner’s report does

fall within the confines of Rule 801(d)(2)(D).

But this does not automatically require that the report be

admitted into evidence. After statements are classified as

non-hearsay under Rule 801(d)(2)(D), “[t]he question

remains whether there are other objections.” Aliotta, 315

F.3d at 763. Mister maintains that, as a Rule 801(d)(2)

admission, the testimony is admissible regardless of other

considerations. At oral argument, Mister argued that

anything asserted by an investigative official, if found in a

report created within the scope of his employment, even if

extremely ridiculous like “the cow jumped over the moon,”

should come into evidence. Although there are rules

that call for the generous treatment of party-opponent
No. 08-2234 7

admissions (the 1972 advisory committee notes to Rule 801

suggest that admissions are sometimes free from the

personal knowledge requirement of Rule 602), they “still

do not stand for the proposition that Rule 801(d)(2)

trumps all other Federal Rules of Evidence.” Id.

(emphasis in original).

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 fell 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.

III. CONCLUSION

The district court erred when it did not classify the

report as an admission by a party opponent under

Rule 801(d)(2)(D); however, the court did not abuse its
8 No. 08-2234

discretion when it found the record inadmissible

under Rule 403, and therefore, we AFFIRM.

7-9-09