Kemp v. Balboa
23 F.3d 211 (1994)
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Rule of Law:
Under Federal Rule of Evidence 602, a lay witness may not testify about matters of which the witness does not have personal knowledge; testimony based solely on reviewing records prepared by others is inadmissible.
Facts:
- From 1987 to 1990, Kemp was a prisoner at the Central Missouri Correctional Center.
- Kemp suffered from grand mal epilepsy and was prescribed medication by the prison's medical staff, which he was permitted to keep in his cell.
- Balboa, a correctional officer, repeatedly confiscated Kemp's epilepsy medication and flushed it down the toilet.
- Balboa ignored pleas from Kemp and another inmate to return the medication.
- As a result of being deprived of his medication, Kemp’s epileptic seizures increased in frequency, causing him to involuntarily bite his tongue, bleed, and hit his head on the concrete floor.
Procedural Posture:
- Kemp filed a suit under 42 U.S.C. § 1983 against Balboa in the United States District Court for the Western District of Missouri, alleging an Eighth Amendment violation.
- Prior to trial, the defendants offered Kemp a settlement of $150.00, which he refused.
- During the trial, the district court admitted the testimony of Nurse Vicki Maness over Kemp's objections.
- The district court denied Kemp's motion to strike Maness's testimony after cross-examination revealed her lack of personal knowledge.
- The jury found for Kemp but awarded only $1.00 in nominal damages and $1.00 in punitive damages.
- Kemp filed a motion for a new trial on the issue of damages, which the district court denied.
- The district court awarded Kemp attorney fees and costs totaling $32,181.40.
- Kemp appealed the nominal damages award to the U.S. Court of Appeals, and Balboa cross-appealed the award of attorney fees.
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Issue:
Does Federal Rule of Evidence 602 permit a lay witness to testify about events they did not personally observe, but only learned about by reviewing records prepared by others?
Opinions:
Majority - Friedman, Senior Circuit Judge
No. Federal Rule of Evidence 602 prohibits a lay witness from testifying about matters that are not within their personal knowledge. The witness, Nurse Maness, admitted on cross-examination that she was not on duty during the times she claimed Kemp failed to pick up his medication and that her knowledge was based solely on reading medical records prepared by others. Since she had no personal knowledge of the events, she had no recollection to be refreshed, and her testimony was inadmissible. The erroneous admission of this testimony was not harmless because it could have improperly influenced the jury to award only nominal damages by suggesting Kemp himself was responsible for his increased seizures.
Analysis:
This decision strongly reaffirms the foundational evidentiary principle of personal knowledge required for lay witness testimony under FRE 602. It clarifies that using documents to 'refresh recollection' is impermissible for a witness who never had a firsthand recollection of the events in the first place. The case underscores for future litigants that an objection for lack of personal knowledge is timely even if made after cross-examination reveals the deficiency. This precedent solidifies the barrier against admitting hearsay-like testimony from a live witness who is merely a conduit for out-of-court records they did not create or observe.
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