## Facts

- Patrick G. McAlinney, a physician born in Northern Ireland and licensed in Missouri, was hired in 1986 by Marion Merrell Dow, Inc. as an Associate Medical Director.
- His job involved reviewing and approving advertising and promotional materials; he worked under supervisors including Dr. Gerald Caldwell and later Dr. Michelle Flicker.
- McAlinney received annual performance evaluations (including “G” and “E” ratings) and salary increases, reaching total compensation of about $119,800 in 1989.
- McAlinney believed he was treated unfairly and attributed the treatment to discrimination based on his Irish national origin.
- To support his claims, McAlinney secretly recorded conversations with coworkers and supervisors.
- The cassette recording was difficult to hear, had substantial background noise and blank portions, repeated some conversations, and McAlinney admitted he edited it.
- McAlinney sued under Title VII and the Missouri Human Rights Act; the district court excluded the tape, the jury returned a verdict for the employer, and judgment was entered for the employer.

## Issues

1. Whether the district court abused its discretion by excluding McAlinney’s edited and partially inaudible tape recording offered to show discriminatory motive.

## Decision

- The Eighth Circuit affirmed the judgment for the employer.
- The court held the district court did not abuse its discretion in excluding the tape.
- The tape’s poor audibility, gaps, duplication, and admitted editing supported concerns about reliability and the risk of confusing or misleading the jury.
- Any probative value was further reduced because McAlinney was permitted to testify about the statements he claimed were captured on the recording.
- McAlinney failed to show that excluding the tape likely affected the trial’s outcome.

## Legal Principles

- Appellate review of evidentiary rulings is highly deferential; reversal requires a clear abuse of discretion and a showing of prejudice.
- A trial court may exclude an audio recording when its condition (e.g., inaudibility, omissions, duplication, or editing) raises serious reliability concerns.
- Under Federal Rule of Evidence 403, even relevant evidence may be excluded if its probative value is substantially outweighed by risks such as confusing issues or misleading the jury.
- When the proponent can present the substance of the evidence through testimony, exclusion of a problematic recording is less likely to be reversible error.

## Conclusion

The Eighth Circuit upheld the employer’s verdict, concluding that excluding an edited, hard-to-hear tape recording was within the district court’s evidentiary discretion given reliability problems, Rule 403 concerns, and the availability of substitute proof through the plaintiff’s testimony.


McAlinney v. Marion Merrell Dow, Inc., 992 F.2d 839 (8th Cir. 1993)