## Facts

- Michael Kemp, a Missouri state prisoner, had grand mal epilepsy known to prison medical staff at the Central Missouri Correctional Center.
- Prison medical staff dispensed anti-epileptic medication weekly, and Kemp was allowed to keep the medication in his cell.
- Kemp alleged that correctional officer Antonio Balboa repeatedly confiscated his epilepsy medication and flushed it, despite pleas to return it.
- Kemp asserted that the deprivation increased the frequency of his seizures and caused physical injuries during seizures, including biting his tongue, head impacts on concrete, and bleeding.
- Kemp sued Balboa under 42 U.S.C. § 1983, alleging deliberate indifference to serious medical needs in violation of the Eighth Amendment.
- At trial, a jury found Balboa liable but awarded Kemp $1 in nominal damages and $1 in punitive damages.
- A prison nurse testified that Kemp had failed to pick up his medication on multiple occasions, but she admitted she was not working on the relevant days and relied only on medical chart entries she did not make.
- Kemp moved to strike the nurse’s testimony for lack of personal knowledge under Federal Rule of Evidence 602; the district court denied the motion and denied a new trial on damages.
- Balboa cross-appealed from an attorney’s fee award entered against him.

## Issues

1. Whether the district court improperly admitted the nurse’s nonexpert testimony about Kemp’s alleged failure to pick up medication when she lacked personal knowledge, in violation of Federal Rule of Evidence 602.
2. Whether any evidentiary error required a new trial, and if so, whether the new trial should be limited to damages or extend to liability.
3. Whether the attorney’s fee award could stand given the disposition of the damages award.

## Decision

- The Eighth Circuit held the district court erred by admitting the nurse’s testimony because she lacked personal knowledge under Rule 602.
- The court found the error prejudicial to the damages verdict, given the nominal and token punitive awards and the likelihood the testimony led the jury to attribute responsibility to Kemp.
- The court remanded for a new trial limited to damages, leaving the liability finding intact.
- The court vacated the attorney’s fee award and remanded for reconsideration after the new damages determination.

## Legal Principles

- Under Federal Rule of Evidence 602, a nonexpert witness may testify only to matters within the witness’s personal knowledge.
- A witness who did not observe the events and relies solely on records the witness did not create lacks the foundation required by Rule 602 to testify to the truth of the recorded matters.
- An evidentiary error warrants a new trial when it is likely to have affected the verdict; prejudice may be inferred where the improper evidence bears directly on causation or responsibility and the award appears inconsistent with the liability finding.
- A partial new trial limited to damages is proper when the error affects damages but the liability verdict is supported by independent, properly admitted evidence.
- When a damages award is vacated and remanded for retrial, an attorney’s fee award tied to the degree of success must be vacated and reconsidered after the final outcome.

## Conclusion

The Eighth Circuit ordered a new trial on damages because a nurse’s testimony based only on medical chart entries she did not make violated Rule 602 and likely skewed the jury’s damages assessment; it preserved the liability verdict and vacated the attorney’s fee award for reconsideration after retrial.


Kemp v. Balboa, 23 F.3d 211 (8th Cir. 1994)