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There’s a Paxil birth defect trial going on in Philadelphia right now. Neither of our firms are involved in it – but that doesn’t mean we’re not interested. According to a Bloomberg report from last Friday, a plaintiff witness who once worked for the defendant was permitted to testify that some unknown person had made a “note in the company’s files” that a different birth defect incident (not part of this suit) was “likely linked” to the drug. This phantom declarant testimony was allowed even though the witness giving it admitted that what happened might have been a “mistake” and that the phantom could have “checked the box wrong.”

That evidentiary ruling, assuming Bloomberg accurately reported it, leaves us scratching our heads. It’s blatant hearsay, and since the regularity of the statement by the phantom declarant (and the requisite authority) was obviously unproven, it can’t plausibly be considered a business record.

That would leave “admission of a party opponent” as the only other ground for letting that in.

But in Pennsylvania, the law is pretty clear that phantom declarant admissions aren’t admissible. In Harris v. Toys “R” Us-Penn, Inc., 880 A.2d 1270 (Pa. Super. 2005), a unanimous panel held that the purported “admission” of a phantom employee that he hadn’t “put up right” a carton that later fell off a shelf and hit the plaintiff was inadmissible. To establish an admission, the proponent of the evidence must show “that the declarant was an employee of the principal at the time the statement was made, and the statement concerned a matter within the scope of employment.” Id. at 1277. “[I]ncomplete and confusing” testimony that fails to establish the scope of an unknown person’s employment doesn’t allow admission. Id. Otherwise, opponents could, frankly, make people (or the scope of their employment) up:

In the instant case, the trial court did not accept Appellant’s argument in favor of the admissibility of the statement, in part because of doubts as to the credibility of the testimony. . . . This decision was a proper exercise of the gatekeeping function of the judge. Without this safeguard, parties could present to the jury any statements that they assert are admissions by their opponents, effectively gutting the hearsay rule.

Id. at 1278.

That seems like the same problem in the Paxil case. Some box got checked by somebody. Nobody knows who. Nobody can say that the phantom declarant had any right to enter data either in either that document or more generally in the computer system. Admittedly, the information could be wrong. The mystery person might even have been a hacker (although we hope not), for all we know – which is nothing.

Admitting hearsay “admissions” by unknown, unidentified persons has no guarantee of genuineness and implicates all the jurisprudential policies that brought about the creation of the hearsay rule in the first place. This phantom also goes by another name – “reversible error.”