Lira v. Albert Einstein Medical Center
384 Pa.Super. 503, 559 A.2d 550 (1989)

  • Lira was in the hospital and was injured due to the actions of a doctor at Albert Einstein Medical Center (AEMC).
  • Lira and her husband went to another doctor (Silberman) who examined Lira, and (according to her husband) exclaimed, “Who’s the butcher who did this!”
  • At trial, Lira’s husband was called to the stand and testified that Silberman made the statement.
    • AEMC objected on the grounds that the out-of-court statement was hearsay.
    • Lira argued that the statement was not hearsay, because it met an exception for being a present sense exception (See FRE 803(1)).
      • A present sense impression is a statement describing or explaining an event of condition made while the declarant was perceiving the event or condition.
    • Lira further argued that it also met the exception as an excited utterance (see FRE 803(2)).
      • An excited utterance is a statement related to a startling event or condition made while the declarant was under the stress of excitement caused by the event of condition.
  • The Trial Judge agreed that the testimony was not admissible and gave the jury an instruction to ignore it.
    • However, the Trial Judge did not order a mistrial.
  • The Trial Court found for Lira.
  • The Trial Judge admitted that he made a mistake in not ordering a mistrial and threw out the verdict and ordered a new trial.  Lira appealed.
  • The Appellate Court agreed that there should be a new trial.
    • The Appellate Court found that Silberman’s statement was clearly hearsay.
      • It was an out-of-court statement offered to prove the truth of the matter asserted.
    • The Appellate Court found that Silberman’s statement was not an excited utterance because, while he may have been concerned, he wasn’t “overcome by emotion.”
    • The Appellate Court found that Silberman’s statement was not a present sense impression because in order to qualify, a statement must be “instinctive, not deliberate.”
      • Aka, the reflex product of immediate sensual impressions, unaided by retrospective mental action.
  • There is a catch-22 in this case.  In order to qualify as a present sense impression or an excited utterance, the statement has to be made without really thinking about it too hard.  But the doctor was an expert witness, which requires that he thinks about things and gives an informed opinion.