Sabel v. Mead Johnson & Co.
737 F.Supp. 135 (1990)

  • Sabel was taking a drug called Desyrel that was made by Mead and had some side effects.  He sued Mead.
  • At trial, Sabel introduced a tape made at a meeting between Mead and some medical experts.  At the meeting people discussed the side effects and what to do about them.
    • Mead objected to the evidence on the grounds that it was hearsay.
    • Sabel argued that under FRE 801(d)(2), admissions made by persons operating as employees (aka agents) are admissible against the employer (aka agency), as agent admissions.
  • The Trial Judge excluded most of the tape.
    • The Trial Judge found that the meeting was run by Mead, but most of the participants were outside experts.
    • Mead made no attempt to limit areas of the discussion, nor stop anyone from speaking their mind.  There was also no evidence that the experts were empowered to speak on Mead’s behalf.
    • Therefore, even though Mead called the meeting, the outside experts were not acting as agents of Mead and any statements made by them were not admissible as admissions by Mead.
    • However, statements made by Mead employees at the meeting are admissible as admissions.
  • Basically, there are three essential characteristics to an agent admission:
    • The power of the agent to alter the legal relationship between the principle and third parties and the principle and himself.
    • The existence of a fiduciary relationship.
    • The right of the principle to control the agent’s conduct with respect to matters within the scope of the agency.