## Facts

- Katherine Coffey (age 78) underwent coronary bypass surgery at Dartmouth Hitchcock Medical Center (DHMC), was discharged, and was readmitted two days later with shortness of breath.
- During readmission, staff treated hypoglycemia by administering several doses of D-50 through a catheter in Coffey’s left hand over roughly six hours.
- After the final dose, her left hand appeared blue and swollen; staff removed the catheter and placed a new one in her left elbow. Coffey complained of numbness, and personnel suspected infiltration/extravasation.
- Coffey was discharged to a rehabilitation center, but her hand condition worsened; she was later readmitted to DHMC, where necrotic digits were amputated.
- Postoperative wound complications followed, including drainage; Coffey later received a skin graft.
- Coffey developed a serious infection identified as MRSA and died from infection and related complications.
- The estate and widower sued DHMC in a diversity medical negligence and wrongful-death action, alleging negligent D-50 administration and subsequent care caused the hand injury, infection, and death.
- Before trial, DHMC moved in limine to exclude an out-of-court statement Coffey’s son attributed to an unidentified man near a nurse’s station: “it was an injection of D-50 into the tissue of her hand. Someone had made a mistake. He had never seen anything like it.”
- The speaker was never identified; the son recalled little besides the man’s height and assumed he was hospital staff based on location.

## Issues

1. Whether the unidentified corridor statement was admissible against DHMC as non-hearsay under Federal Rule of Evidence 801(d)(2)(D) as an agent/employee statement within the scope of employment made during the relationship.
2. If not admissible under Rule 801(d)(2), whether any other hearsay exclusion or exception permitted admission of the statement.

## Decision

- The court granted DHMC’s motion in limine excluding the corridor statement as inadmissible hearsay.
- The court held plaintiffs failed to establish the foundation required for Rule 801(d)(2)(D), including that the declarant was DHMC’s agent/employee and that the statement concerned a matter within the scope of that relationship.
- The court rejected alternative routes for admission because the declarant was not shown to be DHMC itself and no other hearsay exception was supported by the record.

## Legal Principles

- Under Fed. R. Evid. 801(d)(2)(D), a statement is admissible against a party if made by the party’s agent/employee on a matter within the scope of that relationship and during its existence.
- The proponent of an 801(d)(2)(D) admission bears the burden to prove the foundational facts by a preponderance of the evidence.
- Courts generally require evidence independent of the statement itself to establish the declarant’s agency/employment status and the scope of duties.
- An unidentified speaker and speculative assumptions about the speaker’s job status are insufficient to attribute a statement to an institutional defendant as a party-opponent admission.
- Absent a proven hearsay exclusion or exception, anonymous out-of-court assertions offered for their truth remain inadmissible.

## Conclusion

The court excluded an anonymous hospital-corridor statement purportedly acknowledging a D-50 “mistake” because plaintiffs could not prove the speaker was DHMC staff acting within the scope of employment, and no other hearsay doctrine justified admission.


Aumand v. Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d 78 (D.N.H. 2009)