## Facts

- Ray Orrill, Jr. was injured when his vehicle was rear-ended by a truck owned by Ram Rod Trucking & Storage, Inc. and driven by its employee, Richard Harton.
- When police arrived at the scene, they found a nickel-plated handgun in Harton’s truck.
- Harton was charged criminally (assault) arising out of the post-collision incident.
- At Harton’s criminal trial, a police officer and a tow-truck driver testified about the accident and events at the scene, and Harton had an opportunity to cross-examine both witnesses.
- Orrill and his wife later filed a civil suit against Harton and Ram Rod seeking damages for Orrill’s injuries (and derivative damages for his wife).
- In the civil trial, Orrill testified that immediately after the collision Harton pulled a nickel-plated handgun from the truck’s cab and threatened him.
- Harton denied threatening Orrill and testified instead that Orrill threatened Harton with a brick.
- Orrill offered into evidence transcripts of the police officer’s and tow-truck driver’s testimony from the criminal trial because neither witness appeared at the civil trial; Orrill testified that nobody could locate the tow-truck driver.
- Over the defendants’ hearsay objection, the trial court admitted the criminal-trial testimony transcripts.
- The trial court found Harton not credible, found Harton at fault for the rear-end collision, and awarded Orrill \$47,417.84 in damages against Harton and Ram Rod.
- Harton and Ram Rod appealed, challenging admission of the transcripts as inadmissible hearsay and seeking reversal of the liability and damages judgment.

## Issues

1. Whether the trial court erred by admitting transcripts of a police officer’s and tow-truck driver’s testimony from Harton’s prior criminal trial when those witnesses did not appear at the civil trial, and the defendants objected on hearsay grounds.
2. Whether, given the evidentiary ruling and the record as a whole, the trial court’s findings of fault and the damages award should be reversed.

## Decision

- The Louisiana Court of Appeal, Fourth Circuit affirmed the judgment.
- The court held that the criminal-trial testimony transcripts were admissible under the former-testimony exception to the hearsay rule because the witnesses were unavailable at the civil trial and Harton previously had an opportunity to cross-examine them.
- The court declined to disturb the trial court’s credibility determinations, fault allocation against Harton, or the \$47,417.84 damages award against Harton and Ram Rod.

## Legal Principles

- Prior testimony may be admitted in a later proceeding, despite the hearsay rule, when the witness is unavailable and the party against whom the testimony is offered previously had an opportunity (and a sufficiently similar reason) to cross-examine the witness.
- A witness can be treated as unavailable when the proponent shows that the witness cannot be found or produced for trial despite reasonable efforts.
- Admission of former testimony is an evidentiary determination reviewed with deference to the trial court’s assessment of the foundation for unavailability and the adequacy of the earlier cross-examination opportunity.
- Appellate review of factual findings and credibility determinations is limited; absent clear error, the trial court’s findings on who was believable, who was at fault, and the amount of damages will stand.

## Conclusion

Orrill v. Ram Rod Trucking affirmed a civil judgment arising from a rear-end collision and a related handgun allegation, holding that transcripts of two witnesses’ testimony from the driver’s earlier criminal trial were properly admitted in the civil case under the former-testimony hearsay exception because the witnesses were unavailable and the driver had already been able to cross-examine them; the appellate court therefore left intact the trial court’s credibility findings, fault determination, and \$47,417.84 damages award.


Orrill v. Ram Rod Trucking, 557 So. 2d 384 (1990)