## Facts

- Two minor children suffered severe burns during an incident involving a Coleman gasoline lantern while visiting their grandmother.
- The parties agreed the lantern was in use, but disputed causation.
- Plaintiffs alleged the lantern malfunctioned and “exploded,” showering flames; they offered expert testimony that an incorrect generator was installed.
- Coleman contended the children were injured when their uncle fueled/handled the lantern negligently, causing it to ignite and be thrown, striking them.
- The uncle (the key fact witness) gave a pretrial deposition but could not be located for trial despite both parties’ efforts.
- Over objection, the trial court admitted testimony from three witnesses describing the uncle’s alleged post-accident out-of-court statements shifting fault to his conduct, treating the statements as against interest under Federal Rule of Evidence 804(b)(3).
- The trial court also permitted defense counsel to argue an adverse inference from plaintiffs’ failure to produce the uncle at trial.

## Issues

1. Whether admitting testimony about the uncle’s out-of-court statements under FRE 804(b)(3) was error where the uncle was absent at trial but his deposition was available for use.
2. Whether allowing a “missing witness” adverse inference argument was improper when the witness was equally unavailable to both parties.
3. Whether limiting plaintiffs’ ability to attack the credibility of a hearsay witness (including reputation for untruthfulness) contributed to an unfair trial.

## Decision

- The Eighth Circuit reversed the defense judgment and remanded for a new trial.
- The court held the uncle was not “unavailable” within the meaning of FRE 804(a)(5) for purposes of admitting his out-of-court statements under FRE 804(b)(3) because his deposition could be presented to the jury.
- The court held it was improper to permit an adverse inference argument based on plaintiffs’ failure to call a witness who was equally unavailable to both sides.
- Given the sharply disputed causation question, the evidentiary and argument errors were prejudicial.

## Legal Principles

- FRE 804(b)(3) requires the declarant’s “unavailability” as defined by FRE 804(a); when a deposition is available for use at trial, treating the declarant as “unavailable” to admit hearsay statements against interest is improper.
- Out-of-court statements offered to shift causation in a close case can constitute prejudicial error when admitted without satisfying the foundational requirements of the hearsay exception.
- A “missing witness” adverse inference is improper when the witness is equally unavailable to both parties, and permitting such argument can require a new trial when it may affect the verdict.

## Conclusion

The Eighth Circuit ordered a new trial because the jury heard causation-critical hearsay without a proper showing of unavailability under Rule 804 and was invited to draw an adverse inference from the absence of a witness both parties could not produce, cumulatively depriving plaintiffs of a fair trial.


Campbell ex rel. Campbell v. Coleman Co., 786 F.2d 892 (8th Cir. 1986)