WCLA MCLE 10-7-14

1. WCLA MCLE 10-7-14 Evidence Update Jack Cannon Dennis M. Lynch Healy Scanlon Law Firm

2. Illinois Rules of Evidence effective Jan. 1, 2011 • Primarily a codification of existing common law rules of evidence. Some modernization. • Similar to Federal Rules of Evidence in MOST respects. • Rules govern proceedings in the courts of Illinois. (Rule 101 – Scope). • Illinois common law rules of evidence apply to proceedings before Commission, except to the extent they conflict with the Act or Commission Rules. (Comm. Rule 7030.70)

3. Modernization includes: • Rule of Completeness • Habit/Routine Practice • Prior Statements • Statements by Agents

4. Rule of Completeness (106) • Rule 106 Remainder of Related Writings or Recorded Statements (Rule of Completeness) • If part of writing or recorded statement is introduced into evidence, an adverse party may REQUIRE any other part of a writing or recording or any other writing or recording which “ought in fairness” be considered is also admissible.

5. Previously, only another part of SAME writing or recording was admissible. • Applies both to substantive evidence and impeachment evidence. • Mere mention of conversation or statement does not require completion

6. Rule 406 (Habit) • Rule: Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presences of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

7. Previously, some cases required evidence of corroboration. Rule has clearly abolished need for corroboration. • Similarly, some cases forbid habit evidence if there were eyewitnesses to an occurrence. • Now, evidence admissible even if eyewitnesses present. • Individual with personal knowledge must lay foundation that practice was sufficiently “routine.”

8. Rule 613(a) Prior Inconsistent Statement • When examining a witness with a prior statement, the statement need not be shown to the witness. • However, on request shall be shown to opposing counsel.

9. Statements which are NOT Hearsay – Statement by Agent (Rule 801(d)(2)(D) • Statement is NOT hearsay if the statement is: • A statement by the party’s agent OR servant concerning a matter within the scope of the agency or employment. • Statement does NOT need to be against interest of declarant. • Admission of party is substantive evidence (not just for impeachment)

10. Declarant need not hold position of authority in company and need not be authorized to speak on behalf of company. • Statement just has to concern a matter within scope of employment during employment.

11. Other Rules to Keep in Mind

12. 803(b)(4) – Statements for Purpose of Medical Diagnosis or Treatment • Rule: “Statements made for purposes of medical treatment, or medical diagnosis in contemplation of treatment, and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment but, subject to Rule 703, not including statements made to a health care provider consulted solely for purpose of preparing for litigation or obtaining testimony for trial.”

13. Exception does NOT apply to examining physician seen solely for purpose of litigation or testimony at trial. • Statements of causation are only admissible if they are reasonably pertinent to medical diagnosis and treatment.

14. Self-Authenticating Documents • Rule 902 provides that some documents are self-authenticating, including: • Public documents of a government or governmental agency filed under seal • Public documents not under seal if signed by an official in an official capacity.

15. Craig v. Prairie Material Sales, Inc.13 IWCC 1040 • Document was NOT self-authenticating • Respondent attempted to submit PubMed document entitled “Rheumatoid Arthritis” into evidence • Arb. and Commission found it was NOT self-authenticating • Document was not issued by public authority • Also, did not describe activities of agency or matters of which agency had duty to report.

16. Aragon v. Around the Clock Food Store and IWBF, 13 IWCC 0118 • Document WAS self-authenticating. • Petitioner submitted letter from Investigator at IWCC Insurance Compliance Division to demonstrate that Employer was uninsured. • Arbitrator excluded • Commission reversed • Document was self-authenticating because contained Seal of IWCC, an agency of the State

17. Repetitive Trauma • Is evidence of job activities more than three years prior to manifestation date admissible? • PPG Industries v. Workers’ Compensation Commission, 2014 IL App (4th) 130698WC • Employee worked for employer for 38 years prior to claiming repetitive trauma injury. • Commission awarded compensation

18. Circuit Court vacated, directing commission to consider only evidence of activities in three years prior to filing of application • Certified question to App Ct. – does 6(d) bar presentation of evidence more than three years prior to date of accident, or manifestation date, in repetitive trauma cases?

19. App. Ct. holds NO evidentiary limitation • “It stands to reason that a claimant's work history may be necessary and relevant to determining whether she sustained a work-related, gradual injury.” (¶19). • “a claimant’s work history has been routinely considered in repetitive trauma cases, including work history that extended beyond three years prior to an alleged manifestation date.” (Id.)