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.