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Miller v. Arctic Alaska Fisheries Corp.

August 26, 1996

EDWARD MILLER, APPELLANT,
v.
ARCTIC ALASKA FISHERIES CORPORATION, WESTWARD WIND, INC., RESPONDENT.



Superior Court County: King. Superior Court Cause No: 93-2-07209-1.SEA. Date filed in Superior Court: December 6, 1994. Superior Court Judge Signing: Hon. Charles Mertel.

Petition for Review Granted February 6, 1997,

Written by: Hon. Anne L. Ellington. Concurred by: Hon. C. Kenneth Grosse; Hon. Susan R. Agid

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- Appellant Edward Miller sued his former employers Arctic Alaska Fisheries Corp. and Westward Wind, Inc. *fn1 for injury-related damages. Among other issues on appeal, Miller claims that the court erred in excluding two letters that he offered as ER 904 documents. We find the exclusion error because Arctic's objection was untimely, and reverse because exclusion of the documents prevented Miller from fully presenting his negligence case.

I. Facts

The Westward Wind is a crab catcher and processor which fishes Alaska waters. On January 2, 1993, Miller began working on the Westward Wind as a cook and a "factory worker/deckhand." Miller left the vessel on January 22, 1993, complaining of knee, back, and buttock injuries. More specifically, Miller was allegedly injured when a door closed on his knee, when hoist operators twice struck his back with a crab cage, and when boiling water splashed on his buttocks. Miller subsequently brought suit, alleging, inter alia, that Arctic was negligent.

On September 15, 1994, Miller notified Arctic that he intended to use two letters under ER 904. One of these letters was from Dr. Michael Mycoskie, Miller's orthopedic surgeon in Texas, where Miller lives. Mycoskie's letter stated that Miller had a previous knee injury that was "aggravated" on January 26, 1993. The other letter was from another of Miller's treating physicians in Texas, Dr. Michael Williams. Williams' letter stated that Miller's burns healed without complications, but that Miller continued to have a significant amount of thoracic pain from the back injury.

Arctic did not object to these documents until October 4, then claiming they were "not within the list of documents identified in ER 904." (On appeal, Arctic concedes that this objection was incorrect, and that the documents "fall squarely within the description of documents articulated in ER 904.") Arctic again objected on October 12, this time claiming the documents were hearsay. The trial court excluded the letters as hearsay on October 18. Opening statements began that day. The jury returned a verdict for Miller on the negligence claim.

II. ER 904

Miller contends that admission of the letters was mandatory because Arctic failed to object within the 14-day deadline prescribed by the rule. See ER 904(b). *fn2 Arctic argues the letters were properly refused because the deadline applies only to authenticity objections, and Arctic's hearsay objection was therefore timely. We hold that the rule is not limited to authenticity objections, and that to prevent the introduction of hearsay, an opposing party must ordinarily object within the rule's time frame. Here, Arctic's untimely objection was not excusable. We therefore hold that admission was mandatory, and reverse.

Court rules are interpreted using normal principles of statutory construction. State v. Carson, 128 Wash. 2d 805, 812, 912 P.2d 1016 (1996). When interpreting a statute, courts give predominate weight to the statute's language and only resort to legislative history to resolve ambiguities. State v. McCraw, 127 Wash. 2d 281, 288-89, 898 P.2d 838 (1995). Courts do not consider the wisdom of the enactment. *fn3 See State v. CSG Job Center, 117 Wash. 2d 493, 505-06, 816 P.2d 725 (1991).

We first note the titles of the rule and its first section ("Admissibility of Documents," "Certain Documents Admissible"), which make clear the rule relates to admission and not just to authenticity. Further, the rule's plain language anticipates the admission of hearsay documents; in fact, the majority of documents enumerated in the rule ordinarily constitute or include objectionable hearsay (for example, police reports, doctor reports, property damage estimates). In addition, the rule's catch-all provision uses a hearsay concept ("circumstantial guaranties of trustworthiness") as a basis to admit documents not elsewhere identified in the rule. ER 904(6); see, e.g., State v. Florczak, 76 Wash. App. 55, 67, 882 P.2d 199 (1994), review denied, 126 Wash. 2d 1010, 892 P.2d 1089 (1995). 76 Wash. App. 55, 67, 882 P.2d 199 (1994), review denied, 126 Wash. 2d 1010, 892 P.2d 1089 (1995).

The comments by the Washington State Bar Association, which drafted and proposed the rule, state that the rule was limited to civil proceedings to avoid offending a defendant's confrontation rights in criminal cases. 5B Karl Tegland, Washington Practice (3rd ed. 1989 and Supp. 1996 at 135). Obviously, the drafters contemplated admission of hearsay. Indeed, their stated intent was to "expedite the authentication and admission into evidence of certain documents." Tegland, (supra) (quoting Washington State Bar Association comment) (emphasis added). The conjunctive "and" is instructive. Authentication is foundational only. Regardless of authenticity, many documents expressly included in the rule would remain subject to fatal objections such as hearsay, and unless the rule contemplates waiver of substantive as well as foundational objections, the rule will not accomplish its purpose of expediting admission of such documents. Indeed, when the drafters did intend the rule to be limited to authentication they explicitly said so, as they did when addressing the admission of documentary evidence. See ER 904(a)(5). Further, the rule provides that documents objected to "shall be admitted only in accordance with the other rules of evidence" -- not just in accordance with the rules relating to authentication and identification, but "the other" rules of evidence.

The rule is patterned on the rule for evidence in arbitration proceedings. MAR 5.3(d) sets forth documents "presumed admissible at an arbitration hearing" if proper notice is given. The lists are substantially the same. While the drafters of ER 904 did not use the "presumed admissible" language, they also did not use distinguishing language, and the similarities between the rules and their purposes are unmistakable. Indeed, the chief commentator on the rule states, "Rule 904 was adopted in 1992 at the suggestion of the Washington State Bar Association. The rule ...


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