Impeach a Plaintiff with an Unverified Complaint
“A pleader cannot blow hot and cold as to the facts positively stated.”[1] A plaintiff cannot plead certain specific facts within her personal knowledge and then change her tune when it suits her. Even if the complaint is unverified, the factual allegations it contains about factual matters within a plaintiff’s personal knowledge are admissible against her. Decisions examining this issue can be divided in two groups. The first allows examination on specific factual assertions within the pleader’s personal knowledge. A second allows examination on any factual assertion in the complaint.
Factual assertions within personal knowledge are admissible.
In Staples v. Hoefke, Hoefke filed an unverified cross-claim against Miller alleging Miller “operated ‘drop hammer type equipment’” that led to the lawsuit.[2] The cross-claim was dismissed only six weeks later. At trial, Plaintiff was barred from examining Hoefke about the cross-claim, but this was error. “To the extent the court relied on the unverified nature of the cross-complaint as a basis for exclusion, the ruling was in error. It is presumed that even an unverified pleading is filed with the consent of the client and should be regarded as an admission.”[3] The fact that the cross-complaint had been dismissed did not change the result. “However, where a pleading is superseded, the original pleading is not admissible as direct evidence to establish a fact but may be offered for impeachment. Pursuant to this rule, the cross-complaint would have been admissible to impeach defendant Hoefke, although it had been dismissed.”[4] But for other evidence on the same point, “exclusion of the cross-complaint would have been significant error.”[5]
In Pankow v. Mitchell a mechanic repaired a car’s radiator, it subsequently exploded when a second mechanic attempted further repair, and the explosion injured the owner and his son. Owner and son sued mechanic 1 and separately sued mechanic 2.[6] Mechanic 1 argued owner and son “were contributorily negligent because they were standing underneath the car when the radiator hose burst. [Owner and son denied and] insisted that they were not standing underneath the car at the time of the accident.”[7] However, owner and son pled in their complaint against mechanic 2 that they “were all underneath the automobile when suddenly a hose on the automobile burst, and scalding water fell on both Plaintiffs, injuring them severely.”[8] The trial court barred mechanic 1 from cross examining owner and son on that allegation.
That order was reversed on appeal. “An agent’s declaration may be attributable to the principal if the agency relationship existed before the declaration was made and if the agent was acting within the scope of his authority.”[9] “An attorney is the agent of his client for the management of the legal affairs he has been retained to handle. Thus, an attorney’s factual statements made on a client’s behalf in a letter or during pretrial proceedings or the trial itself have been found to be admissions.”[10] “Pleadings prepared and filed by counsel hired by a party are prima facie regarded as being authorized by the party. Thus, factual statements contained in pleadings filed on behalf of a party may be considered as admissions.”
Pankow also discussed the binding nature of the admissions. “Factual statements in pleadings are conclusive against the pleader in the proceedings in which they were filed until they have been amended or withdrawn.”[11] Amending the pleading does not eliminate the statements from trial. “While they lose their conclusive character once they have been amended or withdrawn, they continue to be evidentiary admissions which may be refuted or explained by the party against whom they are used.”[12]
In context, mechanic 1 wanted to impeach owner and son based upon the separately filed complaint against mechanic 2. The fact that two different lawsuits were filed was immaterial. “Statements contained in pleadings filed in prior actions remain admissible even though the action in which they were filed has been withdrawn or dismissed.”[13] This is true, “even though the pleading in which they were contained was not verified.”[14] Ultimately, at trial, “[t]he party who made the admission may give evidence that the pleading was filed on incorrect information or without his actual knowledge. However, this evidence goes only to the weight, not the admissibility, of the pleading.”[15]
Pankow then noted the factual allegations were not hearsay.
They were prepared by counsel retained to represent [owner] and his son. They are ostensibly based on facts that only [owner] and his son could have provided. They are also inconsistent with their testimony at trial that they were not standing underneath the car when the radiator hose burst. The position of [owner] and his son at the time of the accident is material to [mechanic 1]’s contributory negligence defense.[16]
The trial court committed reversible error by excluding the factual allegations in the second complaint.
In Schwartz v. Triff the plaintiff had two car accidents and filed suits in both. The first settled before trial, the second was tried. At trial, the plaintiff denied she had any back injury from her first accident. The defendant was permitted to impeach her with the factual statements in her lawsuit arising from the first accident, despite the fact she did not sign or verify it.[17] This was proper impeachment.[18] Hanik v. Wilczynski reached the same conclusion where the trial court permitted the defense to use “an unsigned and unverified complaint filed in a previous personal injury action for the purpose of impeaching [plaintiff]’s statement that he had never before suffered any back, neck, or spine injuries.”[19]
Lack of personal knowledge was the key reason Kelly v. Ellefson excluded factual allegations in the complaint. A woman was killed in a traffic accident. Her heirs sued Lido’s, the bar where she had been, for overserving Ellefson, her driver. She also sued the operator of the commercial vehicle that Ellefson struck. The “amended complaint alleged that Lido’s had served alcoholic beverages to Ellefson when Ellefson was obviously intoxicated.”[20] Her heirs who filed the complaint had not been at the bar and lacked personal knowledge of what happened. Minnesota had previously ruled “allegations of fact in pleadings may be introduced against the pleading party as admissions when the party proceeded inconsistently thereafter….”[21] However, because the heirs who filed the complaint lacked personal knowledge of the facts alleged, the allegations in the complaint were inadmissible against them.
This logic is persuasive. Facts pled in a pleading that are within the personal knowledge of the pleading party may be admissible later as impeachment evidence. NRCP 7(a) defines pleadings to include complaints.
All factual assertions within the complaint are admissible.
Some courts have permitted cross-examination apparently about all facts alleged in a complaint, even if beyond the plaintiff’s personal knowledge.[22] This seems inconsistent with Nevada’s evidentiary requirements as it would strike an improper balance. Parties may not possess every single fact necessary to prove all elements of every cause of action against every anticipated defendant when a complaint is filed. Plaintiffs are permitted some leeway to plead facts beyond their personal knowledge that they believe in good faith may exist and will support their causes of action. Defendants are provided similar leeway with answers and affirmative defenses. Eliminating that leeway would inequitably increase the pleading burden.
[1] Myers v. Trendwest Resorts, Inc., 100 Cal. Rptr. 3d 658, 667 (Ct. App. 2009).
[2] 235 Cal. Rptr. 165, 175 (Ct. App. 1987).
[3] Id.
[4] Id.
[5] Id.
[6] 737 S.W.2d 293 (Tenn. App. 1987).
[7] Id. at 295.
[8] Id.
[9] Id. at 296.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. at 297.
[15] Id.
[16] Id. at 297.
[17] 139 N.W.2d 907, 909 (Mich. App. 1966).
[18] Id. at 910.
[19] 189 N.W.2d 815 (Mich. App. 1971).
[20] 712 N.W.2d 759, 768 (Minn. 2006).
[21] Id. at 767.
[22] Henry v. HealthPartners of S. Ariz., 55 P.3d 87 (Ariz. App. 2002); Danko v. Redway Enters., Inc., 757 A.2d 1064 (Conn. 2000); Lytle v. Stearns, 830 P.2d 1197, 1205-06 (Kan. 1992) (The cases in other jurisdictions generally hold that allegations of fact contained in pleadings are admissible in evidence as an admission by the pleader. The factual matter contained in a pleading made by a party’s attorney is admissible as an admission of the party.”)(emphasis in original).