In personal injury action, an occupational therapist report was inadmissible under FRE 106 where the adverse party failed to meet its burden to “specify the portion of the testimony that is relevant to the issue at trial and that qualifies or explains portions already admitted,” in McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737 (8th Cir. Jan. 26, 2010) (No. 08-2818)
The rule of completeness, embodied in FRE 106, is grounded in “fairness.” The rule applies to writings or recorded statements that are introduced. An adverse party may seek the admission “of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” The Eighth Circuit recently considered the obligations of an adverse party to admit the writing or recording.
In the case, the plaintiffs brought a personal injury action against a manufacturer alleging that the husband’s injuries were proximately caused by a defective tank which he tried to repair. His foot was burned after being exposed to caustic soda which leaked from the tank. At trial, during cross-examination of an occupational therapist that had treated the plaintiff, plaintiffs’ counsel “repeatedly read from and referred to specific portions of the report.” Defense counsel objected, “Your Honor, if counsel’s going to read part of the report, I request that he reads all of the report.” McCoy, 593 F.3d at 747. The trial court denied the request of the manufacturer’s counsel to admit the entire report. The jury returned a verdict for the plaintiffs. On appeal, the manufacturer claimed the trial court erred in excluding the written report.
The Eighth Circuit affirmed the exclusion of the report under FRE 106. The manufacturer failed to meet its burden under the rule. The circuit identified some reasons in which a writing or recording may be admitted under the rule:
“Additional parts of the recording can be admitted if they are necessary to ‘(1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.’”
McCoy, 593 F.3d at 746-47 (quoting United States v. Flentge, 151 F. App’x 490, 491–92 (unpublished per curiam) (quoting United States v. Sweiss, 814 F.2d 1208, 1211–12 (7th Cir. 1987)). In order to invoke the rule, however, the circuit noted the obligation on the proponent of the writing or recording:
“To sustain a Rule 106 objection, ‘the party urging admission of an excluded conversation must specify the portion of the testimony that is relevant to the issue at trial and that qualifies or explains portions already admitted.’”
McCoy, 593 F.3d at 747 (quoting Flentge, 151 F. App’x at 492 (quoting United States v. King, 351 F.3d 859, 866 )). The mere request to read “all of the report” was insufficient to introduce the report. As the circuit noted, “At no time did Augusta’s counsel specify why the district court should admit the entire report or … which portions of the report would be relevant to the trial. As in Flentge, without further explanation, Augusta did not meet its burden under Rule 106.” McCoy, 593 F.3d at 747.
The McCoy case highlights the specific obligations the proponent of a writing or recording must meet before obtaining the benefits of FRE 106. The failure to identify relevant portions is inadequate.
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