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In his recent decision in the case of Santiago v. Wegmans Food Markets, Inc., No. 16-CV-1529 (C.P. Lacka. Co. Feb. 2, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a property owner’s Motion for Summary Judgment in a slip and fall action.
According to the Opinion, the Plaintiff was an employee of an independent contractor that was retained by the property owner to provide janitorial services. The Plaintiff was allegedly injured in a slip and fall event on the premises.
The Defendant-owner filed a Motion for Summary Judgment on the basis that it allegedly owned no duty of care to the employee of the independent contractor. The landowner Defendant argued that a landowner who retains an independent contractor cannot be vicariously liable for the negligence of an independent contractor or its employees.
However, Judge Nealon denied the Motion for Summary Judgment under the “retained control” exception to that theory of non-liability. Under the exception, a property owner who entrusts work to an independent contractor remains subject to liability if its contract with the independent contractor grants the landowner control over the manner, method, and operative details of the independent contractor’s work.
Judge Nealon found that there were issues of fact in this regard that required the court to deny the Motion for Summary Judgment filed.
In the case of Rutyna v. Schweers, No. 895 WDA 2016 (Pa. Super. Jan. 4, 2018 en banc) (Op. by Lazaurs, J.) (Olson, J., concurring), the Pennsylvania Superior Court reversed the entry of summary judgment and ruled that the trial court abused its discretion in denying the Plaintiff a continuance where, through no fault of the Plaintiffs, the Plaintiff’s expert was suddenly unable to testify less than three (3) weeks before trial.
This case involved a legal malpractice action related to an underlying medical malpractice action.
The court ultimately found that, given the history of the case, the Plaintiffs were left with insufficient time to obtain a new expert.
In its Opinion, the Superior Court emphasized that, while the swift resolution of cases is a "linchpin of judicial economy," is not an end in and of itself. Op. p. 18.
The Rutyna decision can be viewed HERE.
In the case of Arvonio v. PNC Fiinancial Services Group, Inc., No. 11 CV 478 (C.P. Lacka. Co. Feb. 14, 2018 Nealon, J.), the court reviewed a case involving commercial torts including breach of a fiduciary duty in a financial conversion case.
More specifically, the court addressed a motion in limine filed by a defendant seeking a court ruling on the proper measure of damages in an action filed by debtors/mortgagors against their investment management company alleging breach of contract and fiduciary duties for allegedly liquidating the Plaintiff's investment management accounts without the Plaintiff's authorization to do so.
Judge Terrrence R. Nealon of the Lackawanna Court of Common Pleas held that 42 Pa.C.S.A. Section 8335 set forth the proper measure of damages as being the difference between the proceeds of the wrongful conversion of the Plaintiff's investments and the higher value that the property may have reached within a "reasonable time" after the owner received notice of the conversion.
Anyone wishing to read this Opinion online may click this LINK.
Tort Talkers may recall prior posts on the Lebanon County case of Shearer v. Hafer pertaining to whether a Plaintiff is entitle to have a representative present during portions of a neuropsychological IME.
The Tort Talk post on the Superior Court's decision in this case can be viewed HERE. The post on the trial court's decision can be viewed HERE. Concisely, the Superior Court affirmed the trial court's order allowing a representative of the Plaintiff to be present during the preliminary interview phase of the neuropsychological evaluation, but not during the standardized testing portion of the evaluation.
Now comes the Pennsylvania Supreme Court decision recently handed down in this case on January 18, 2018 ruling that the Pennsylvania Superior Court erred in even considering the issue on appeal as the trial court's order was not an appealable order as of right under Pa.R.A.P. 313 where the trial court order only met one of the three prongs of the collateral order doctrine. As such, the Superior Court's decision on the issue was vacated.
The Majority Opinion of the Court in Shearer v. Hafer, No. 93 MAP 2016 (Pa. Jan. 18, 2018), written by Justice Todd, can be viewed HERE.
Justice Mundy's Dissenting Opinion can be viewed HERE.
This Opinion may be a good one to consult if you have a question on whether a trial court order is appealable under the collateral order doctrine under Pa.R.A.P. 313.
The Pennsylvania Supreme Court reaffirmed the rule of law that the collateral order doctrine is to be narrowly construed and that each of the three prongs to allow for an appeal must be clearly present.
(3) the question presented is such that if review is postponed until the final judgment of the case, the claim will be irreparably lost.
In Lackawanna County, Attorneys are still needed to fill the Jury Box for the Finals of the Lackawanna County Mock Trial Competition.
In the case of Gaffin v. Walker, No. 7974-CV-2017 (C.P. Monroe Co. Jan. 30, 2018 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas overruled a trucking Defendant’s Preliminary Objections to a Plaintiff’s Complaint with respect to punitive damages alleged based upon a rear-end motor vehicle accident.
The defense contended that the case involved a simple rear-end collision sounding in ordinary negligence.
In response, the Plaintiff asserted that the subject accident involved a tractor trailer rear-ending the Plaintiff’s flatbed truck. The Plaintiff also alleged that the Defendant violated portions of the Federal Motor Carrier Safety Regulations.
After reviewing the current status of Pennsylvania law pertaining to punitive damages and allegations of recklessness, the court found that the Plaintiff alleged sufficient facts to allow the punitive damages claim to proceed beyond the pleadings stage. The court cited to other cases in which punitive damages claims were allowed to proceed where a Plaintiff alleges violation of state and federal statutes pertaining to commercial vehicle driving.
The court also noted that punitive damages could be awarded under the Plaintiff’s allegations of vicarious liability in addition to the allegations of direct conduct.
I send thanks to Attorney John P. Finnerty, Esquire of the Moosic, Pennsylvania office of Dougherty, Leventhal & Price, LLP for bringing this case to my attention.
In the Schuylkill County Court of Common Pleas case of Rosencrance v. Smith, No. S-1535-2017 (C.P. Schuylkill Co. Jan. 19, 2018 Domalakes, J.), the court denied a Defendant's Preliminary Objections to allegations of recklessness and the request for punitive damages in a rear end trucking accident case.
This matter arose out of a chain reaction accident in a construction area on Interstate 81 during which the Defendant tractor trailer driver allegedly rear-ended a vehicle, causing several additional rear end impacts up ahead, including to the Plaintiff's vehicle.
After reviewing the current status of Pennsylvania law on punitive damages, the court found that the allegations in the Plaintiff's Complaint were sufficient to allow such claims to proceed beyond the pleadings stage.
More specifically, the Plaintiff averred that the Defendant tractor trailer failed to operate his vehicle at a safe and prudent speed in that he was unable to stop his vehicle without rear ending the vehicles ahead, that he failed to apply his brakes in time, failed to stop within the assured clear distance ahead, followed too closely, and violated several provisions of the Motor Vehicle Code.
In the end, the court denied the Defendant's Preliminary Objections to the Plaintiff's Complaint.
I send thanks to Attorney Stephen J. Fendler of Fendler Law Offices in Kingston, PA for bringing this decision to my attention.
In the case of Cagey v. PennDOT, No. 36 WAP 2016 (Pa. Feb. 21, 2018)(Maj. Op. by Donohue, J.), handed down by the Pennsylvania Supreme Court yesterday, the Court expressly overruled Fagan and its progeny and held that PennDOT is only immune when it fails to install a guardrail. The Court held that when PennDOT installs a guardrail, sovereign immunity is waived if the agency’s negligent installation and design creates a dangerous condition that causes or contributes to an accident.
Although there are two Concurring Opinions, it appears that all of the Justices agreed on the ultimate holding of the case set forth above.
I send thanks to Attorney Scott Cooper for bringing this decision to my attention.
In the case of Alley v. MTD Products, Inc., No. 3: 17-CV-3 (W.D. Pa. Dec. 20, 2017 Gibson, J.), the court denied summary judgment filed by the Defendant in this products liability case involving alleged injuries from a snowblower.
This decision is also notable for its Choice of Law analysis in terms of whether Ohio law or Pennsylvania law should be applied. In the end, the court found that Pennsylvania law should be applied under the analysis.
In its decision, the court ruled that, where a product manufactured in another state injures a Pennsylvania resident who bought and used the product in Pennsylvania, the law of Pennsylvania will be applied to the personal injury case. The court found that Pennsylvania’s contacts and interests are stronger than those of the state where the product is merely manufactured.
In the case of Barnard v. The Travelers Home and Marine Ins. Co., No. 17-00290 (E.D. Pa. Feb. 5, 2018 McHugh, J.) (Mem. Op.), the court addressed the issue of whether a carrier was required to obtain an additional written waiver of stacking of UIM benefits where the insured had signed a waiver of stacked benefits when the policy was originally issued but, two (2) years later, sought to purchase a higher level of UIM benefits.
According to the Opinion, the UIM benefits originally purchased were in the amount of $50,000.00 and stacking was rejected on two (2) vehicles. When the insured later secured increased UIM limits, a new rejection of stacking form was never secured.
In his Memorandum Opinion, Judge McHugh held that a new rejection of stacking form was required when the UIM benefits were increased since, under the judge’s review of the applicable statutes, a carrier is required to secure a rejection of stacking from the insured whenever higher UIM policy limits are purchased.
I send thanks to Attorney Scott B. Cooper of the Harrisburg, Pennsylvania law offices of Schmidt Kramer, P.C. for bringing this case to my attention.
Tort Talkers may recall the prior blog post on the case of Selective Insurance of South Carolina v. Koons-Gill, No. 13-CV-6415 (C.P. Lacka. Co. Dec. 14, 2016 Nealon, J.), in which Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a decision in this declaratory judgment action on the issue of whether an employee of ambulance service company, who was injured in a work-related accident while occupying her employer’s ambulance, may stack the underinsured motorists coverage limits for the six (6) ambulance vehicles that were insured under the employer’s commercial business automobile insurance policy.
By way of update, it is noted that this decision was recently affirmed on appeal in a non-precedential Opinion by the Pennsylvania Superior Court issued on February 13, 2018 under Superior Court Docket No. 163 MDA 210. The Superior Court's non-precedential Opinion may be viewed HERE.
The courts of Pennsylvania continue attempt to move forward in the post-Tincher world of products liability cases, including in the actual Tincher case.
On remand from the Pennsylvania Supreme Court, the trial judge in the actual Tincher case denied any relief to the defense.
However, the trial court’s denial of the Defendant’s motion for post-trial relief has been reversed by the Pennsylvania Superior Court in its February 16, 2018 decision in Tincher v. Omega Flex, Inc., No. 1285 EDA 2016, 2018 Pa. Super. 33 (Pa. Super. Feb. 16, 2018 Lazarus, J., Platt, J., Strassburger, J.)(Op. by Lazarus, J.). The Pennsylvania Superior Court particularly found fault with the trial court’s jury instructions with respect to standards for finding a "defect" and a new trial was ordered in light of the extensive changes that the Tincher Supreme Court decision made to Pennsylvania product liability law.
Notably, the Superior Court noted that the trial court’s jury instructions which relied, in part, on the law of the prior case of Azzarello v. Black Brothers, Inc., 391 A.2d 1020 (Pa. 1978), were “incorrect.” Op. at p. 18.
The Superior Court in this Tincher opinion noted that “[t]he charge thus contained all of the product liability law under Azzarello that the Supreme Court has now disapproved, including a definition equating a defective product with one that “leaves the suppliers’ control lacking any element necessary to make it safe for its intended use,” and a declaration that a manufacturer “is really a guarantor of [a product’s] safety” but not “an insurer of [that] safety.” Op. at p. 18.
The Superior Court, in no uncertain terms, emphasized that “[t]he Supreme Court has now overruled Azzarello and determined that this statement of product liability law was incorrect. The trial court’s jury charge, therefore, was erroneous.” Op at p. 18.
The Tincher Superior Court went on to state, “Here, the trial court gave a charge on a determinative issue that failed to conform to the applicable law, as stated in Tincher. We conclude, therefore, that the charge amounted to fundamental error.” Op. at p. 20.
The court also noted, “[T]he trial court gave a charge under law that the Supreme Court has explicitly overruled in this very case. Such a charge would appear to be a paradigm example of fundamental error.” Op. at p. 23. The appellate court emphasized that the provision of an incorrect definition of a "defect" in conflict with the standards on the same set forth in Tincher required the granting of a new trial.
In the end, the Superior Court found that “[t]he trial court had no authority to deny a new trial on the basis of its own speculation about what the jury would do under the Supreme Court’s new formulation of the law.” Op. at p. 27. It further noted that “[t]he trial court’s declaration that the new legal reformulation resulting from the Supreme Court’s thorough and extensive decision … can cause no change to the verdict undervalues the importance of the Supreme Court’s decision.” Op at p. 27.
The appellate court ultimately found that given that the jury instructions were incorrect under the new Tincher analysis, a new trial was required to be ordered.
The Superior Court otherwise confirmed that under the new Tincher analysis enunciated by the Pennsylvania Supreme Court, “only the fact-finder – in this case, the jury – may determine whether a product is defective.” Op. at p. 28.
Commentary: In this new decision, the Superior Court makes clear that the Azzarello analysis and, therefore, any jury charge based upon that case, has been expressly “disapproved” by the Pennsylvania Supreme Court. Accordingly, it appears that the Pennsylvania Standard Suggested Jury Instruction issued after the Supreme Court’s decision in Tincher purporting to restore the Azzarello formulation may be inconsistent with the new standards set down in Tincher.
Tort Talkers may recall that a committee of attorneys affiliated with the Pennsylvania Defense Institute formulated alternative post-Tincher standard jury instructions that are represented to be consistent with the new analysis adopted by the Pennsylvania Supreme Court in Tincher. A Link to these proposed jury instructions can be found HERE.
I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this decision to my attention.
In his recent decision in the case of Grimes v. Velez, No. 2016-CV-4071 (C.P. Lacka. Co. Jan. 22, 2018 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas granted a Plaintiff’s Motion to Coordinate separate motor vehicle accident litigations filed in separate counties. The court granted the motion under Pa. R.C.P. 213.1.
By way of background, the entire case against the tortfeasor Defendant and the Plaintiff’s own UIM carrier initially began under a single Complaint filed in the Lackawanna County Court of Common Pleas. However, the UIM carrier succeeded on Preliminary Objections to the Complaint on the basis that venue was improper in Lackawanna County under a forum selection clause. The UIM portion of the case was therefore carved out and transferred to Monroe County.
Through an error by the Lackawanna County Prothonotary, the entire case was transferred to Monroe County. At that point, the Plaintiff filed a Motion to Consolidate the matters in Monroe County. The Monroe County court denied the Plaintiff’s motion based upon a lack of jurisdiction over Defendant Velez given the mistake by the Lackawanna County Prothonotary in also transferring that part of the case. The Monroe County Court directed that the tort claim against the tortfeasor defendant be transferred back to Lackawanna County.
Thereafter, the Plaintiff filed the subject Motion to Coordinate pursuant to Pa. R.C.P. 213.1 seeking a transfer of the tort claim back to Monroe County.
In his decision, Judge Gibbons noted that the claims against the tortfeasor Defendant and the UIM carrier arose from the same occurrence, i.e., the same motor vehicle accident. The court noted that this factor alone served as a basis for granting the coordination motion. The court additionally noted that common questions of law or fact existed as well.
On the issue of the convenience of parties, the Lackawanna County Court recognized that litigation in Monroe County would involve roughly one (1) hour of travel from Lackawanna County.
The ruling in favor of coordination was also compelled by the notion that only one trial should take place on the questions presented as they all arose out of the same accident. The court additionally noted that it was likely that all of the witnesses and parties called to testify with respect to the tort action would also be called to testify with respect to the UIM action.
Judge Gibbons rejected the tortfeasor’s Defendant’s claims of prejudice and unreasonable delay if he was required to defend the case in Monroe County.
Lastly, the court found that the interest of judicial economy and the prevention of duplicative or inconsistent Orders weighed in favor of coordinating and transferring to Lackawanna County to the Monroe County case.
For these reasons, the court granted the Plaintiff’s Motion for Coordination under Pa. R.C.P. 213.1.
In Lackawanna County, Attorneys are still needed to fill the Jury Boxes at the Lackawanna County Mock Trial Competition.
In the case of Carpenter Technology Corp. v. Weida, 2018 W.L. 398297 (E.D. Pa. Jan. 11, 2018 Stengel, C.J.) (Mem. Op.), the court granted a Defendant’s Motion to Dismiss the Plaintiff’s action for equitable relief to enforce the terms and preserve the assets of an Employee Welfare Benefit Plan under the terms of the Employee Retirement Income Security Act (ERISA).
The court explained that the Plaintiff, Carpenter Technology Corporation Health & Welfare Plan was a self-funded Employee Welfare Benefit Plan. The plan contained a provision to fulfill ERISA’s requirement that such a plan be established and maintained by a written plan document. That document contained an expressed provision indicating that Plan participants must fully reimburse the Plan from payments received from a settlement of personal injury claims against third parties.
By way of further background, the Defendant in this matter was injured in a car accident. The Plan paid medical benefits on the injured party’s behalf. The injured party filed suit against the tortfeasor and settled that action.
The Plan then filed this suit asserting that the injured party was in possession of funds that belonged to the Plan and, through this lawsuit, the Plan was attempting to compel the injured party to reimburse the plan from the settlement proceeds.
The Plan was seeking (1) an Order imposing a constructive trust and/or equitable lien in favor of the Plan against any settlement funds or any property into which the settlement funds had been converted by the injured party; (2) an Order enjoining the injured party from dissipating any of these settlement funds until the Plan’s rights could be adjudicated; (3) an Order enjoining the injured party from transferring or disposing of the settlement funds; and/or reasonable attorney’s fees and costs.
In response, the injured party Defendant/Plan beneficiary filed the subject motion to dismiss which was granted by the court.
In granting the Motion to Dismiss, the court noted that the ERISA Plan waited approximately nine (9) months after receiving notice from the injured party’s personal injury attorney of the pending third party settlement distribution before the Plan ever filed this Complaint for equitable relief.
The Court also noted that, although the language of the Plan entitled the Plaintiff to relief, by the time the Plaintiff had filed this Complaint, the settlement proceeds, which had been deposited into a joint marital account, had already been dissipated. The court additionally noted that, generally speaking, a joint property is protected from creditors for an individual spouse’s debt.
Anyone wishing to review a copy of this decision may click this LINK. The accompanying Order may be viewed HERE.
A recent update was provided on the Lawrence County case of Gallatin v. Gargiulo (C.P. Lawrence Co., 2016 Hodge, J.), in which that trial court allowed a lawsuit to proceed beyond the pleadings stage against a man who had texted a driver who was involved in a fatal accident allegedly at the time she received the text sent.
In the recent update, reference was made to reports that the court had since dismissed the claims asserted against the sender of the text.
Further investigation has confirmed that the case against the sender of the text was dismissed by Stipulation by the Plaintiff shortly before a Motion for Summary Judgment on the issue was to be argued to the court. Defense counsel was prepared to argue that the Plaintiff failed to produce facts that the sender of the text knew that the recipient was driving at the time the text was sent.
Cummins is also available to serve as a Mediator through Cummins Mediation Services (www.cumminsmediationservices.com).
Locally, Attorneys are still needed to fill the Jury Boxes at the Lackawanna County Mock Trial Competition in the state and federal courthouses in Scranton, PA.
In the medical malpractice case of Venosh v. Henzes, No. 11 - CV - 3058 (C.P. Lacka. Co. Jan. 18, 2018 Nealon, J.), the Lackawanna County Court of Common Pleas granted in part and denied in part a Plaintiff's motion to compel relative to requested additional discovery responses from, and a supplemental deposition of, a defendant doctor.
In this case, the Plaintiff attempted to secure the additional deposition of the doctor after the Plaintiff had certified the case for trial under a certification that all discovery had been completed. The Plaintiff wished to depose the doctor on a written statement he had made to a health insurer relative ot an internal quality-of-care review of the treatment provided to the Plaintiff.
The court allowed the deposition but circumscribed the scope of the questioning to a very narrow issue. The court noted that no prejudice was established relative to the additional discovery, particularly since the trial date was still nine months into the future.
On January 30, 2018, the Pennsylvania Supreme Court issued a per curiam Order agreeing to hear the appeal on the case of BouSamra v. Excela Health, No. 318 WAL 2017 (Pa. Jan. 30, 2018), to hear argument on the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm serves to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, to qualify as a privileged person.
Tort Talkers may recall that the Pennsylvania Superior Court previously determined in this case that emails involving an internal investigation that were sent by a hospital’s attorney to a public relations firm were not barred from discovery under the attorney-client privilege or the work-product doctrine. Here is a LINK to the Tort Talk blog post on that decision.
Anyone wishing to review a copy of the Pennsylvania Supreme Court's Order granting the appeal may click this LINK.
Source: “Justices to Eye Discoverability of Emails Between Hospital Counsel and PR Firm” by Max Mitchell of The Legal Intelligencer (Feb. 1, 2018).

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William J. SPEYBROECK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Jeffrey E. Kimmell, South Bend, IN, Attorney for Appellant. Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
1. Whether the State properly authenticated business documents pursuant to Indiana Evidence Rule 902(9).
2. Whether the trial court abused its discretion by admitting documents into evidence under Indiana Evidence Rule 803(6), the business records exception to the hearsay rule.
3. Whether a retrial is appropriate.
We reverse and remand for a new trial.
On February 20, 2002, William purchased a Kawasaki motorcycle from Maple City Cycle (“Maple City”) in Goshen. To finance the purchase, William used a Kawasaki “Good Times Credit Card” (“Kawasaki Card”). Transcript at 44. Ronnie Weatherholt, Maple City's owner, sold William the motorcycle. In doing so, Weatherholt took William's Kawasaki Card but recorded William's name as “Bill P. Speybroeck” on the credit slip. State's Ex. 4. Weatherholt also recorded William's name as “Bill P. Speybroeck” on the bill of sale, State's Ex. 3, and on the “Certificate of Origin,” Transcript at 46. On March 1, William returned to Maple City to purchase service parts for the motorcycle. William again used his Kawasaki Card, and Weatherholt filled out a credit slip recording William's name as “Bill P. Speybroeck.” State's Ex. 9.
In order to obtain a Kawasaki Card, one must fill out an application either online or at the store. The applicant must submit his “name, address, social security number, birth date, place of residence, employment history, [and] ․ current and past history [of] employment.” Transcript at 51. Once an application is submitted, it takes one “week to two weeks” to receive the credit card. Id. at 52. A Kawasaki Card can be used to purchase Kawasaki motorcycles, parts, accessories, and service. When a Kawasaki Card is used in a transaction at Maple City, Maple City receives an electronic confirmation notification. Thereafter, HSBC Bank (“HSBC”) mails Maple City a check for the amount of the transaction.
In May of 2002, William's father, Robert P. Speybroeck (“Robert”), learned that someone had “fraudulently us[ed] [his] identity[ ] and social security number” to open a credit account with HSBC. Id. at 94. Robert also learned that that account had an outstanding balance.1 On May 8, Robert sent a letter to HSBC and informed the bank of an erroneous “listing for a credit card ․ [with] an outstanding balance.” State's Ex. 11. Robert then spoke to an employee from HSBC's fraud department and learned that William's name was on the account. Subsequently, Robert talked to William about William's Kawasaki Card. William informed Robert that William had “found the mistake” and that it was “being taken care of.” Transcript at 105. On June 5, 2002, Robert returned a form to HSBC authorizing the bank to release information to prosecuting authorities and included a copy of his driver's license. Robert had never given William permission to use his name, date of birth, or social security number to obtain the Kawasaki Card.
In 2004, St. Joseph County Police Detective Jerome Ratkiewicz initiated a fraud investigation on William, whose purchases at Maple City remained unpaid. As part of the investigation, Detective Ratkiewicz spoke to Robert to obtain Robert's social security number and date of birth. Detective Ratkiewicz also obtained information from HSBC regarding William's Kawasaki Card. HSBC sent Detective Ratkiewicz a letter that included Robert's social security number.
On October 26, 2004, the State charged William with Count I, fraud on a financial institution, a Class C felony; Count II, identity deception, as a Class D felony; and Counts III and IV, Receiving Stolen Property, each as a Class D felony. The State also alleged that William was an habitual offender. William filed a motion to sever Counts I and II from Counts III and IV, which the trial court granted.
In November of 2006, the court held a jury trial on the fraud on a financial institution and identity deception charges and the habitual offender allegation. Prior to the commencement of trial, William objected to the admissibility of State's Exhibit 11 (“Exhibit 11”). Exhibit 11 consisted of eighty-five pages, including: a notarized affidavit (“Affidavit”), entitled “Certificate of Authentication and Reliability,” signed on October 23, 2006, by Stacy L. Helm, the operations manager at HSBC's fraud department; thirteen pages of computer printouts; fifty-three pages of Kawasaki documents, including the certificate of origin, credit slips, and invoices from purchases made by William using his Kawasaki Card; 2 and nine pages of letters, with attachments, written by both Robert and William and addressed to HSBC.3 See State's Ex. 11; see also Appellant's App. at 15-99.
I hereby certify, after being duly sworn upon my oath under penalty for perjury, that I am a custodian of the attached records consisting of _ page(s), and that I have personal knowledge that these records are records of regularly conducted business activity made at or near the time of the occurrence of the matters set forth therein, or by or from information transmitted by a person with knowledge of the matter set forth therein; and, that these documents are kept in the normal course of the regularly conducted activity of HSBC; and, that these documents are made in the regular course of business activity as a regular practice of HSBC.
Furthermore, these records are authentic duplicate copies of official business records kept in the normal and regular course of HSBC's business, and are kept within the United States of America.
State's Ex. 11 at 1; Appellant's App. at 15.
William argued that the Affidavit was insufficient because it neither specified the number of pages nor identified the documents that the affiant was authenticating. Regarding the thirteen pages of computer printouts, William also argued those documents were not authenticated by the Affidavit because the Affidavit was dated October 23, 2006, whereas the computer printouts were attached to a letter dated October 24, 2006, and sent by Tasha Turay of HSBC's fraud department to the prosecutor.4 William also questioned the reliability of the printouts, asserting that the Affidavit failed to indicate what each record was, how it was compiled, and from where that information was obtained. And in regard to the fifty-three pages of Kawasaki documents, William argued that those documents were not the business records of HSBC because HSBC did not create them. Hence, William further argued that the Affidavit could not authenticate how other businesses, namely, Maple City and Kawasaki, either conducted their businesses or kept their records. Finally, regarding the letters from Robert and William to HSBC, William argued that those documents should not be admitted because HSBC did not create them in the ordinary course of its business.
The prosecutor replied to William's arguments by explaining that HSBC had initially faxed him a copy of the Affidavit and sixty-nine pages of documents-all the documents except the computer printouts-on October 23, 2006. And the following day, HSBC mailed the Affidavit along with all the documents contained in Exhibit 11, including the computer printouts. The prosecutor further argued that the letters and invoices were part of HSBC's business records because HSBC regularly kept such documents in the ordinary course of tracking the credit it provided to its customers. The prosecutor also argued that the letters from Robert and William were admissible as part of the fraud investigation on the bank's credit account, which was part of HSBC's business. After hearing the parties' arguments regarding Exhibit 11, the trial court concluded that the documents within the Exhibit were “properly covered under the [Affidavit] and [were] business records.” Id. at 15. After holding a preliminary hearing, the court overruled William's objection.
During trial, the State moved to admit into evidence Exhibit 11, and William objected.5 The trial court overruled William's objection and admitted Exhibit 11 into evidence. The jury found William guilty of fraud on a financial institution and identity deception as charged and found that he was an habitual offender.
The trial court sentenced William to eight years, with six years suspended, on his conviction for fraud on a financial institution. The court enhanced that sentence by eight years for the habitual offender finding. The court also ordered a concurrent term of three years on William's identity deception conviction. Thus, the trial court sentenced William to an aggregate term of sixteen years with six years suspended.6 This appeal ensued.
William argues that the trial court abused its discretion by admitting into evidence Exhibit 11. Our standard of review of a trial court's findings as to the admissibility of evidence is an abuse of discretion, Ground v. State, 702 N.E.2d 728, 730 (Ind.Ct.App.1998), which occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, Rolland v. State, 851 N.E.2d 1042, 1045 (Ind.Ct.App.2006).
The hearsay exceptions reflect the concern that hearsay evidence be admitted only when the proponent can demonstrate that the evidence bears the necessary indicia of reliability. Absent such a demonstration, the hearsay rule and its underlying principles demand that the evidence be excluded. This is especially true in criminal cases, where the defendant's right to confront witnesses takes on a constitutional dimension.
Ground, 702 N.E.2d at 731-32.
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
The reliability of business records stems from the fact that the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, from the precision engendered by the repetition, and from the fact that the person furnishing the information has a duty to do it correctly.
In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 642-43 (Ind.2004) (citations omitted). As an exception to the hearsay rule, the business record exception must be strictly construed. See, e.g., Ground, 702 N.E.2d at 731-32.
Unless the source of information or the circumstances of preparation indicate a lack of trustworthiness, [extrinsic evidence of authenticity is not required when] the original or a duplicate of a domestic record of regularly conducted activity [is] within the scope of Rule 803(6), which the custodian thereof or another qualified person certifies under oath (i) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by[ ] a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted activity[;] and (iii) was made by the regularly conducted activity as a regular practice.
“If it comports with the requirements of Rule 902(9), it is self-authenticating.” Smith v. State, 839 N.E.2d 780, 786 (Ind.Ct.App.2005). However, self-authentication does not guarantee admissibility; rather, it “merely relieves the proponent from providing foundational testimony.” Reemer v. State, 835 N.E.2d 1005, 1007 n. 4 (Ind.2005).
Once the proponent has satisfied the requirements of Rule 902(9), the burden shifts to the opposing party to prove the unreliability of the records. See Ground, 702 N.E.2d at 732. Thus, even if an affidavit authenticates business documents pursuant to Rule 902(9), the evidence may still be excluded. Specifically, evidence will be excluded if the source of information contained in the record or the circumstances of the record's preparation indicate a lack of trustworthiness. See Evid. R. 902(9); see also 13A Robert Lowell Miller, Jr., Indiana Evidence § 902.109 (3d ed.2007).
William challenges the admission of Exhibit 11 on two grounds. First, he contends that the Affidavit fails to properly authenticate the attached documents. Second, he asserts that, in any event, the Kawasaki documents and the letters do not satisfy the requirements of the business records exception to the hearsay rule. William also asserts that a retrial is inappropriate as the evidence against him was insufficient to support his convictions. We address each argument in turn.
William first argues that the Affidavit fails to authenticate the attached documents. We must agree. The Affidavit neither specifies the number of pages nor identifies the documents it purports to authenticate. Rather, when the text of the Affidavit is compared with its attachments, it is apparent that the Affidavit is merely a boilerplate recitation unconnected to the underlying documents. As such, the Affidavit lacks trustworthiness and therefore does not comply with Rule 902(9). Hence, the nonauthenticated documents attached to Exhibit 11 must be excluded. See Evid. R. 803(6), 902(9); see also In re Paternity of H.R.M., 864 N.E.2d 442, 449 (Ind.Ct.App.2007) (“The purported affidavit in this case ․ does not indicate before whom [the affiant] swore, to what she swore, that she took an oath, or that [the affiant] made these statements under the penalty of perjury.”).
The State's purported authentication of the computer printouts demonstrates the Affidavit's lack of trustworthiness. The Affidavit was signed and dated October 23, 2006, but the computer printouts were not created until October 24, 2006. And when HSBC first submitted the Exhibit 11 documents to the State, HSBC did not include the computer printouts. Thus, because the Affidavit is pre-dated, does not specify the number of pages included, and does not identify the documents it purports to authenticate, the State's contention that there is “a strong implication” that the affiant reviewed the computer printouts is without merit. See Appellee's Brief at 11.7 Accordingly, we hold that the Affidavit is insufficient to authenticate the Exhibit 11 documents under Rule 902(9).
Likewise, here neither the Kawasaki documents nor the letters satisfy Rule 803(6)'s requirements of reliability. Specifically, notwithstanding the Affidavit's recitation that “these documents are made in the regular course of business activity as a regular practice of HSBC,” none of those documents were created by an HSBC employee with personal knowledge of the matters set forth in the documents. See Appellant's App. at 15. Nor were Maple City, Kawasaki, Robert, or William acting in the course of HSBC's regularly conducted business activity when they created those documents. The State does not refute William's contention that HSBC lacked personal knowledge of the alleged transactions between William, Maple City, and Kawasaki. The State also does not dispute William's argument that none of those entities acted in the course of HSBC's regularly conducted business activity. Instead, the State responds that it was only required to show that the documents at issue were “kept in the routine course of business and placed in the record by one authorized to do so, not one who had personal knowledge of the transaction represented at the time of the entry.” Appellee's Brief at 10.
The business records' exception to the hearsay rule does not require that a sponsor of an exhibit must have personally made it, filed it, or have had firsthand knowledge of the transaction represented by it. The record keeper must only show that it is part of the records kept in the routine course of business and placed in the record by one authorized to do so, who had personal knowledge of the transaction represented at the time of the entry.
But the State misapplies Darnell to William's argument. William does not allege that the affiant to Exhibit 11 was required to have personal knowledge. Rather, he argues, correctly, that someone at HSBC was required to have personal knowledge of the information contained in the Kawasaki documents and the letters. See Stahl, 686 N.E.2d at 92; Wilson, 490 N.E.2d at 377. Again, “where a company does not rely upon certain records for the performance of its functions those records are not business records within the meaning of the exception to the hearsay rule.” E.T., 808 N.E.2d at 643. William has met his burden in showing that no one at HSBC had the personal knowledge required for the business records exception to apply. Hence, those documents cannot satisfy Rule 803(6)'s requirements of reliability. See Stahl, 686 N.E.2d at 92; see also Serrano v. State, 808 N.E.2d 724, 727 (Ind.Ct.App.2004) (holding that an arrest record was inadmissible where there was no evidence that the officer who prepared the arrest report had personal knowledge of the information contained therein), disapproved of on other grounds by Jaramillo v. State, 823 N.E.2d 1187 (Ind.2005), cert. denied, 546 U.S. 1030, 126 S.Ct. 730, 163 L.Ed.2d 568 (2005); D.W.S. v. L.D.S., 654 N.E.2d 1170, 1173 (Ind.Ct.App.1995) (holding that a report of an event recorded must have been within the personal knowledge of someone acting in the course of regularly conducted business activity).
Although the trial court erred in the admission of Exhibit 11, we will affirm William's convictions if that error was harmless. The improper admission of evidence is harmless only when the conviction is supported by substantial independent evidence of guilt that satisfies the reviewing court that there is no substantial likelihood that challenged evidence contributed to the conviction. Ground, 702 N.E.2d at 732. Reversal may be compelled if the record as a whole discloses that the erroneously admitted evidence was likely to have had a prejudicial impact on the fact finder, thereby contributing to the judgment. Id. In Ground, we reversed the defendant's convictions when the State repeatedly referred to erroneously admitted evidence that likely had a prejudicial impact on the fact-finder. Id. And in James v. State, 622 N.E.2d 1303, 1309-10 (Ind.Ct.App.1993), we held that the erroneous admission of propensity evidence was not harmless due to State's “steady drumbeat” of references to the evidence.
Here, the admission of Exhibit 11 was not harmless error. The State repeatedly referred to and relied upon the contents of Exhibit 11 throughout the trial. In the prosecutor's closing argument, he repeatedly referred the jury to the documents in Exhibit 11 as evidence that satisfied the elements of the charges of fraud on a financial institution and identity deception. Again, Exhibit 11 shows William's actual social security number and middle initial as well as the social security number, date of birth, and middle initial that William apparently used to open the Kawasaki Card. Exhibit 11 also reveals William's multiple uses of the Kawasaki Card and shows his signature on each purchase. Based on the State's repeated use of Exhibit 11, we must conclude that Exhibit 11 impacted the judgment. Thus, William's convictions must be reversed.
Principles of double jeopardy generally do not bar a retrial on the same crimes when reversal is required due to trial error in the admission of evidence. Ground, 702 N.E.2d at 732. If all the evidence, even that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial on the same charge. Stahl, 686 N.E.2d at 94; see also Jaramillo, 823 N.E.2d at 1190 n. 5. Evidence is sufficient if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Ground, 702 N.E.2d at 732. In this review, we do not reweigh the evidence or assess the credibility of the witnesses. Id.
The State presented evidence to support the inference that William used Robert's identifying information, without Robert's consent, to obtain the Kawasaki Card from HSBC and then purchase a motorcycle and accessories. Considering all the evidence presented at trial, including the improperly admitted Exhibit 11, we conclude that there was sufficient evidence from which the jury could have concluded that William committed fraud on a financial institution and identity deception. Accordingly, we remand this case for a new trial.
In sum, the circumstances associated with the preparation of the Affidavit and Exhibit 11 indicate a lack of trustworthiness. As such, the Affidavit fails to satisfy Rule 902(9)'s requirements for self-authentication, and the underlying documents must be excluded. In addition, the Kawasaki documents and the letters cannot satisfy Rule 803(6)'s requirements of reliability. No one at HSBC had personal knowledge of the creation of those documents, and HSBC made none of those documents in its regular course of business. Thus, we hold that the trial court abused its discretion when it admitted Exhibit 11 into evidence. But because all the evidence presented at William's trial, even that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial on the same charges.
Reversed and remanded for a new trial.
1. Robert had previously had two accounts with HSBC, but, as of 2002, he only had one account open. That account had a zero balance.
2. Two of the Kawasaki credit slips and the certificate of origin are also contained in State's Exhibits 3 through 6 and 9.
3. Exhibit 11, as contained in the Exhibit Folder, also contained three letters written by HSBC's fraud department and addressed to the prosecutor. The State removed those three letters from Exhibit 11 and neither offered them into evidence nor showed them to the jury. However, William's attorney requested that the three letters be included in the trial court's copy of the Exhibit for purposes of the record. Six other pages of documents also were attached to Exhibit 11, including computer printout information and pre-printed forms with handwriting on them, but those pages are not at issue on appeal.
4. Specifically, that letter provided: “Please find attached, a copy of our screen print outs [sic] showing what was entered into our system upon receipt of the Kawasaki Internet application.” State's Ex. 11 at 4; Appellant's App. at 18. Again, this letter was removed from Exhibit 11 and was neither admitted into evidence nor shown to the jury. However, the computer printouts were admitted into evidence.
5. The transcript does not reflect William's specific objection to the admission of Exhibit 11 because it was made during a “[b]ench conference” and was “[i]naudible.” Transcript at 58. Following the bench conference, the trial court stated: “For the reasons discussed earlier today, the objections [sic] overruled.” Id.
6. The trial court also ordered that William's sentence be served consecutive to a federal sentence that he was serving at the time.
7. Insofar as the State argues that the October 24 letter it received with the computer printouts “served the same function as a supporting affidavit,” we note that that letter was not signed under penalty of perjury. See Appellee's Brief at 11; State's Ex. 11 at 4. It therefore cannot be the functional equivalent of an authenticating affidavit. See Evid. R. 902(9); Jordan v. Deery, 609 N.E.2d 1104, 1110 (Ind.1993) ( “The chief test of the sufficiency of an affidavit is its ability to serve as a predicate for a perjury prosecution.”).
8. Although we hold that each of the Exhibit 11 documents is inadmissible under Rule 902(9), we also address the admissibility of the Kawasaki documents and the letters under Rule 803(6) because that issue is likely to recur on remand. Again, the Kawasaki documents and the letters were included in HSBC's first submission of the Exhibit 11 documents to the State. William does not challenge the admission of the computer printouts under Rule 803(6).
9. Although Wilson was decided under the common law of hearsay, our Supreme Court has recognized that, “[w]ith few exceptions, Evidence Rule 803(6) is generally consistent with longstanding Indiana precedent on the admissibility of business records.” E.T., 808 N.E.2d at 642.
MATHIAS, J., and BRADFORD, J., concur.


text:
Opposition No. 67,714 to application Serial No. 328,693 filed September 18, 1981.
HJM Melaro for MarCon, Ltd.
S. Michael Bender and Deborah Kramm, Albert Robin, Herbert Blecker and Howard B. Barnaby and Gary Gittelson for Avon Products, Inc.
MarCon, Ltd., a Virginia corporation, has opposed the application of Avon Products, Inc. to register the mark AVON SILKEN SOAP for liquid body soap. [FN1] As grounds for opposition, opposer asserts essentially that applicant's mark, when applied to its goods, so resembles opposer's mark SILK, previously used and registered for a variety of cosmetic and beauty care products including bubble bath, hair shampoo and face and body creams and lotions, [FN2] as to be likely to cause confusion. Opposer has also asserted that applicant has abandoned its mark since, on information and belief, there is no product presently on the market bearing the mark sought to be registered.
Applicant has denied the allegations of opposer and has asserted as affirmative defenses that opposer is barred by the doctrines of collateral estoppel and stare decisis from alleging that there is a likelihood of confusion between the parties' marks; that opposer is precluded from bringing this opposition by the terms of its agreement with applicant relating to use of trademarks including the word SILK on cosmetic and beauty aid products; that applicant has used the word 'silk' in the advertising and promotion of certain of its products fairly and in good faith to describe its products, their characteristics or features; and that the word SILK and designations which include that word have become commonly used in the cosmetic and toiletries industries.
The record of this case consists of opposer's pleaded registration, applicant's answers to opposer's interrogatories and a dictionary definition, made of record by opposer's notice of reliance; certain pages of a discovery deposition given by the former attorney for applicant, S. Michael Bender, provided by applicant in response to one of opposer's interrogatories; [FN3] certain official records of this Office relied upon by opposer in rebuttal; [FN4] testimony (and exhibits) taken by applicant; and the application file.
While opposer pleaded that applicant has abandoned its mark, not only did opposer fail to raise this issue in its brief but also the interrogatory answers demonstrate that applicant had substantial sales of its goods in 1982 and 1983, the latter year being the year in which opposer filed its notice of opposition charging abandonment. Also, because opposer has relied upon its valid registration of the mark SILK, priority is not an issue. The only issues for decision are, therefore, likelihood of confusion and the estoppel effect, if any, of the settlement agreement between the parties.
*2 With respect to the issue of likelihood of confusion, opposer has offered no probative evidence in support of this claim other than its registration of the mark for various cosmetics and toiletries. Since opposer's registration issued for closely related goods such as body lotions, bubble bath and hair shampoo, the question before us is whether applicant's mark AVON SILKEN SOAP so resembles opposer's SILK mark for these highly related products as to be likely to cause confusion. We find that confusion is unlikely.
First, despite opposer's attempt in its brief to dissect applicant's marks and to compare only its mark SILK and the SILKEN portion of applicant's mark, it is well settled that a mark should not be dissected but rather must be considered as a whole in determining likelihood of confusion. Franklin Mint Corp. v. Master Manufacturing Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981). Even discounting the generic word SOAP, which applicant has disclaimed, applicant's mark has obvious differences in sound, appearance and meaning from opposer's mark SILK. Applicant's arguments that the word SILKEN in its mark is a highly suggestive adjective modifying the word SOAP and that AVON is therefore the dominant feature are well taken. Accordingly, and in view of the suggestive nature of the mark SILK when used in connection with opposer's hair and skin care products (Melaro v. Pfizer Inc., 214 USPQ 645, 649 (TTAB 1982) and MarCon, Ltd. v. Tova Corporation, 222 USPQ 829, 830 (TTAB 1984)), the addition of applicant's housemark to the specifically different and suggestive term SILKEN is sufficient to distinguish between the marks and to avoid confusion. [FN5] See Central Soya Co., Inc. v. North American Plant Breeders, 212 USPQ 37, 48 (TTAB 1981) and Plus Products v. Redken Laboratories, Inc., 199 USPQ 111, 116-117 (TTAB 1978).
However, even if we had some doubt about the question of likelihood of confusion, we would dismiss this opposition because of opposer's agreement in 1980 not to interfere with applicant's use or registration of a mark containing the word SILK. As the testimony reveals, applicant's former attorney, Mr. Bender, was contacted by opposer when opposer objected to applicant's use of the trademark SMOOTH AS SILK. Opposer eventually filed suit against applicant in a state court in Virginia claiming trademark infringement, and applicant removed the action to the United States District Court for the Eastern District of Virginia. This litigation was eventually settled by an agreement dated December 5, 1980, which agreement was intended to resolve all disputes between the parties involving trademarks containing the word SILK. [FN6] Portions of the agreement are quoted below.
*3 2. The Melaros agree not to adopt, use or register any trademark which is likely to cause confusion with any Avon trademark.
3. Rose Eilean Melaro hereby grants to Avon an irrevocable license to use the trademark SILK for cosmetic and beauty aid products, and Constance L. Melaro and Marie Antoinette Melaro and Marcon Ltd. hereby confirm their agreement to such license.
(c) there is a final judgment from which no appeal is or can be taken on or after the date of execution of this agreement by a court or by the United States Patent and Trademark Office that there is no likelihood of confusion between the trademark SILK of the Melaros and a trademark or trademarks of another which includes the word SILK . . .
7. Avon agrees that whenever it shall introduce a new product line on which Avon shall use the trademark SILK, it will submit a sample of such product to the Melaros; and Avon further agrees that products bearing the trademark SILK shall be of good quality.
*4 In addition to permitting Avon to use the mark SILK alone under license pursuant to certain royalty and quality control provisions (Para. 3 et seq.), opposer has in effect conceded that certain other marks such as SMOOTH AS SILK and SPUNSILK are not likely to cause confusion with its SILK trademark, because of its permission for applicant to use and register those trademarks. Opposer, having sued applicant for infringement and obviously being aware of any potential for confusion, must have believed that SILK-composite marks were distinguishable from its SILK mark when it gave Avon permission to use and register those trademarks.
We do not believe that Mr. Bender's comments were a repudiation of the agreement. First, Mr. Bender was truthfully expressing applicant's reason for never using the mark SILK alone, under subpoena of a third party during a deposition under which counsel was, of course, under oath. The cases involving the principle of licensee estoppel, that is, estoppel of a licensee from challenging by litigation the ownership or validity of a licensed trademark which the licensee had previously acknowledged, are inapposite. Here, applicant is not so challenging opposer's mark. Applicant has never filed any action or proceeding challenging the validity of opposer's mark. Indeed, in subsequent correspondence applicant has rejected opposer's claim of repudiation, and stated that it continues to follow the letter and spirit of the agreement. Applicant has expressed its desire to maintain the agreement to avoid future conflicts with opposer. Moreover, as applicant has pointed out, the Shaklee court expressly ruled that its decision was not influenced by the continued existence of MarCon's agreement with applicant. [FN11] Therefore, it is not seen how the Bender discovery deposition had any bearing on the outcome of that litigation or so impaired opposer's rights in the SILK mark that we should consider the agreement to have been repudiated.
With respect to opposer's claim that applicant failed to comply with the quality control requirements of the agreement, because those provisions refer only to use of the trademark SILK, and since applicant has never made or sold products bearing that trademark alone under the license, it has never been obliged to submit appropriate specimens to opposer for review.
*5 Opposer has made much of certain correspondence in which Mr. Bender allegedly agreed to submit samples of products which bear composite SILK marks for opposer's inspection. Suffice it to say that we find Mr. Bender's testimony persuasive that he wrote his responses without reviewing the quality control provisions of the agreement and had forgotten that the provisions applied only to use of the mark SILK alone. Subsequent letters demonstrate this fact. See applicant's exhibit 12, letter dated September 9, 1982. While his earlier language was mistaken, we do not believe that it served to alter or modify the quality control terms of the settlement agreement.
To permit Avon to register MarCon's already registered and incontestable trademark SILK by adding the linguistic particle/formative 'en' to it and then compounding the hoax by adding a generic term plus its housemark to it is to make a mockery not only of the entire trademark examining system, but the very existence of this Board and the Lanham Act as well . . .
FN1. Serial No. 328,693, filed September 18, 1981, claiming use since August 20, 1981. Applicant has disclaimed the word 'SOAP'.
FN2. Registration No. 1,056,339, issued January 11, 1977, Section 8 affidavit accepted. This registration has been made of record in this proceeding in accordance with the provisions of former Trademark Rule 2.122(b), now Trademark Rule 2.122(d)(1).
FN3. On June 19, 1986, the Board granted in part applicant's motion to strike opposer's notice of reliance and struck those pages of the Bender deposition, sought to be relied upon by opposer, because it was a discovery deposition given in another proceeding to which applicant was not a party. See Trademark Rule 2.122(f). The Board adhered to its decision on reconsideration. However, as opposer has pointed out in a subsequent paper (opposer's memorandum in support of its motion for partial reconsideration filed December 2, 1986), the Bender discovery deposition given in a federal civil action between Shaklee Corporation and opposer (Shaklee Corp. v. Marcon, Ltd., No. 81-1423 (N.D. Cal. Aug. 31, 1982)) had been furnished by applicant in response to one of opposer's interrogatories. Had this fact been brought to the Board's attention during the course of this proceeding, the Board would have permitted opposer's reliance on this matter. In view thereof, we hereby set aside that part of the Board's June 19, 1986 ruling which excluded from the record the pages of the Bender discovery deposition on which opposer relies in its first notice of reliance submitted Nov. 15, 1985.
FN4. The Board, through its interlocutory staff attorney G. D. Hohein, had deferred ruling upon applicant's motion to strike certain documents which opposer had attempted to rely upon as rebuttal evidence. We hereby deny applicant's motion but note that those official records have very limited probative value on the issue of likelihood of confusion.
FN9. The fact that opposer in hindsight in its reply brief, 9, calls the inclusion of this paragraph 'imprudent' does not alter our interpretation of the agreement as both a consent by opposer to applicant's use and registration of marks including the word SILK and a license of the mark SILK.
Q. Maybe I can get to the information I'm looking for with this question: Were you aware of any desire on the part of Avon prior to this litigation to obtain rights to the trademark, 'silk,' standing alone, just s-i-l-k?
A. Avon, to my knowledge and thinking only of my experience at Avon, was not interested in the word, 'silk' standing alone as a trademark, because Avon always held the view, and still does, that the word, 'silk,' is nondistinctive and incapable of functioning as a trademark.
We did, however, have interest from time to time in so-called silk compound brands or trademarks, and we still do have interest in silk compound brands.
I think you will find that interest is reflected by virtually every other company in the cosmetic industry.
Marcon has purportedly licensed its mark to various entities, most notably Avon and Revlon. There has been much discussion regarding the nature of these 'licenses' and to what extent, if at all, acts of Marcon's 'licensees' benefit Marcon. It is undisputed that none of the asserted licensees sell any product under the name SILK, although they do market products which names contain the word silk. The court does not find it necessary to determine the effect of the licenses, as they are not relevant to whether there is any likelihood of confusion between SILK and RAINSILK.

matches: v. v. v. v. v. v.


Curtis SCOTT, Claimant-Appellant v. Robert A. McDONALD, Secretary of Veterans Affairs, Respondent-Appellee.
Robert A. McDONALD, Secretary of Veterans Affairs, Respondent-Appellee.
United States Court of Appeals, Federal Circuit.June 18, 2015.1376*1376 Jennifer Librach Nall, Baker Botts, LLP, Austin, TX, argued for claimant-appellant. Also represented by Christopher Granaghan, David B. Weaver, Jeffrey S. Gritton, Vinson & Elkins LLP, Austin, TX.
William James Grimaldi, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Joyce R. Branda, Robert E. Kirschman, Jr., Claudia Burke; Y. Ken Lee, Amanda R. Blackmon, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before DYK, MAYER, and REYNA, Circuit Judges.
Curtis Scott appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying his claim for service connection for hepatitis C. We affirm.
Scott served on active duty for training in the United States Marine Corps Reserve from January to July 1972. On November 18, 1999, Scott tested positive for hepatitis C. He applied for disability benefits on February 4, 2005, alleging that he contracted hepatitis C in service. His primary theory was that he was infected with hepatitis C when he received air-gun inoculations during his military service. The Department of Veterans Affairs (“VA”) regional office (“RO”) denied Scott’sclaim for service connection on September 20, 2005.
[/ezcol_1half] [ezcol_1half_end]This case is significant as it relieves the Board from searching the record to address procedural arguments not raised by the Appellant.
In this case, the incarcerated Appellant requested a Board hearing and noted that his next potential opportunity for parole was over a year later. The RO scheduled the hearing in the interim and the Appellant did not attend. The Appellant requested a rescheduled hearing, but the Board denied the Appellant’s request and denied the appeal on the merits. The claim was appealed to the CAVC, where the Appellant was represented by counsel. The hearing issue was not raised to the CAVC, but the case was remanded on other grounds. The Board then remanded the case to the RO for additional development while noting that the Appellant “has not renewed his request” for a hearing. The Board eventually denied the claim again. During the second appeal to the CAVC, the Appellant argued that the Board erred by denying him his right to a hearing. The CAVC refused to consider the argument because it had not been raised either in the prior CAVC appeal or to the Board during the intervening proceedings.The Federal Circuit affirmed the CAVC. In doing so, it acknowledged that the doctrine of issue exhaustion was appropriate both before the Board and the CAVC in certain circumstances. However, the Federal Circuit also noted that the Board has a special obligation to read filings liberally, whether submitted by counsel or pro se appellant.
The Federal Circuit then analyzed what constituted a liberal construction for these purposes, stating: “There is a significant difference between considering closely-related theories and evidence that could support [an Appellant’s] claim for disability benefits and considering procedural issues that are collateral to the merits.” The Federal Circuit stated that, for procedural issues, an Appellant’s interest “may be better served by resolution of his claims” rather than by a remand that may not change the final outcome. As a result, the Federal Circuit stated: “Having initially failed to raise the procedural issue, the [Appellant] should not be able to resurrect it months or even years later when, based on new circumstances, the [Appellant] decides that raising the issue is now advantageous.” Accordingly, the Federal Circuit held: “[t]he Board’s obligation to read filings in a liberal manner does not require the Board or the [CAVC] to search the record and address procedural arguments when the [Appellant] fails to raise them before the Board.
”This case is significant as it relieves the Board from searching the record to address procedural arguments not raised by the Appellant.
[/ezcol_1half_end]On April 24, 2006, Scott appealed to the Board of Veterans’ Appeals (“Board”) and requested an evidentiary hearing before the Board. See 38 C.F.R. § 20.700(a) (right to a hearing). Scott was incarcerated at the time of his appeal to the Board. On December 6, 2007, the RO sent a letter to Scott, “acknowledg[ing] [his] request for a Video Conference hearing before the Board,” and “request[ing] that [Scott] provide us with the date [Scott is] expected to be released from [his] incarceration so we may schedule [his] video conference hearing accordingly.” J.A. 575. Scott responded to the RO on December 13, 2007, reiterating his request for a hearing and informing the Board that his “minimum expiration parole date for release is January 1377*1377 13, 2017,” and his “next parole review date is scheduled for March of 2009.” J.A. 573. On January 14, 2008, the RO notified Scott that his hearing had been scheduled for March 14, 2008, in Houston, Texas.Scott, who was still incarcerated on the scheduled hearing date, failed to appear for the hearing.
On March 23, 2008, Scott requested a rescheduled hearing because he “could not appear for [his] hearing because of [his] incarceration.” J.A. 826. The Board denied Scott’s request, finding that Scott had “not shown good cause for failing to appear for [his] hearing,” but made no mention of Scott’s incarceration. J.A. 683. The Board subsequently denied Scott’s claim for service connection, noting thatScott “failed to report for his scheduled hearing in March 2008” and that the Board denied his request to reschedule it. J.A. 677.
On appeal to the Veterans Court, Scott, who by this time was represented by counsel, did not raise the hearing issue. The Veterans Court vacated and remanded to the Board due to an inadequate medical examination, without mentioning the hearing issue. In remanding to the RO, the Board noted the hearing issue but that Scott “has not renewed his request” for a hearing. J.A. 221. On November 18, 2011, the RO continued the service connection denial without mentioning the hearing issue. Scott again appealed to the Board via a re-certification of appeal form which checked “YES” in answer to “WAS HEARING REQUESTED?”, but Scott did not raise the hearing issue with the Board. J.A. 183. The Board affirmed, again noting that Scott “has not renewed his request” for a hearing. J.A. 16.
On appeal to the Veterans Court, on July 26, 2013, Scott raised the hearing issue for the first time since his March 23, 2008, request for a rescheduled hearing. The Veterans Court affirmed, holding that Scott “did not raise this [hearing] issue in either proceeding,” referring to Scott’s prior appeal to the Veterans Court and his current appeal before the Board. J.A. 1-2. The Veterans Court held that raising the hearing issue at this late stage “amounts to an effort to engage in undesirable piecemeal litigation, and [Scott] provides no compelling basis to permit it.” J.A. 2.Scott appeals. We have jurisdiction pursuant to 38 U.S.C. § 7292(a). We review legal determinations of the Veterans Court de novo. Moffitt v. McDonald, 776 F.3d1359, 1364 (Fed.Cir.2015).
The Supreme Court has recognized the importance of issue exhaustion with respect to administrative tribunals. In United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952), the Court held that “orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while [the agency] has opportunity for correction in order to raise issues reviewable by the courts,” such that “as a general rule … courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” Id. at 37, 73 S.Ct. 67. But Scott argues that the Supreme Court’s decision in Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), precludes 1378*1378 application of the issue exhaustion doctrine in the context of veterans benefits because proceedings before the VA are non-adversarial in nature.
We addressed this issue even before the Supreme Court’s decision in Sims, inMaggitt v. West, 202 F.3d 1370 (Fed.Cir.2000). We articulated a case-by-case balancing test for issue exhaustion in the VA system: “The test is whether the interests of the individual weigh heavily against the institutional interests the doctrine exists to serve.” Id. at 1377 (citing McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). We remanded to the Veterans Court to determine, inter alia, “whether invocation of the exhaustion doctrine [was] appropriate” with respect to the veteran’s request to reopen his claim for service connection based on constitutional and statutory arguments that he had not raised before the Board. Id. at 1378-79.
Thereafter, in Sims, the Supreme Court addressed issue exhaustion in the context of Social Security Administration (“SSA”) benefits. The Court noted that “SSA regulations do not require issue exhaustion.” 530 U.S. at 108, 120 S.Ct. 2080. When that is so, “the desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.” Id. at 109, 120 S.Ct. 2080. A plurality of the Court concluded that “[t]he differences between courts and agencies are nowhere more pronounced than in Social Security proceedings,” such that “a judicially created issue-exhaustion requirement is inappropriate.” Id. at 110, 112, 120 S.Ct. 2080. But the majority also recognized that “it is common for an agency’s regulations to require issue exhaustion in administrative appeals. And when regulations do so, courts reviewing agency action regularly ensure against the bypassing of that requirement by refusing to consider unexhausted issues.” Id.at 108, 120 S.Ct. 2080 (citations omitted). Justice O’Connor’s concurrence also made clear that Sims does not apply, and exhaustion is required, where applicable statutes or regulations impose an exhaustion requirement. See id. at 113, 120 S.Ct. 2080 (O’Connor, J., concurring). Thus, in light of Sims, we must determine the extent to which statutes or agency regulations require issue exhaustion in the veterans benefits context.
In previous veterans’ cases we have considered issue exhaustion in three specific contexts and have held that the statutes and regulations require issue exhaustion in appropriate circumstances. First, in an appeal from the RO to the Board, 38 C.F.R. § 20.202 specifically requires that the errors by the RO be identified either by stating that all issues in the statements of the case are being appealed or by specifically identifying the issues being appealed.See Robinson v. Shinseki,557 F.3d 1355, 1361 (Fed.Cir.2009) (“We … do not suggest that under the regulations 1379*1379 the veteran is entirely relieved of his or her obligation to raise issues in the first instance before the VA where the record is being made. The regulations quite clearly impose such an obligation even in direct appeals….” (citing 38 C.F.R. § 20.202)).
Second, where the alleged error was made by the Board, we have held that the statute, 38 U.S.C. § 7252(a), requires issue exhaustion before the Board in appropriate circumstances.See Ledford v. West, 136 F.3d 776, 779-80 (Fed.Cir.1998) (Under § 7252, “the [Veterans C]ourt’s jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed,” and “while the doctrine of exhaustion of administrative remedies is not jurisdictional,” exhaustion is normally required.). Thereafter, in Maggitt, we held that exhaustion was not required in all cases, distinguished Ledford, and concluded that “[n]othing in the statutory scheme providing benefits for veterans mandates a jurisdictional requirement of exhaustion of remedies which would require the Veterans Court to disregard every legal argument not previously made before the Board.” See202F.3d at 1376-77. As noted above, “the test is whether the interests of the individual weigh heavily against the institutional interests the doctrine exists to serve.” Id. at 1377 (citing McCarthy, 503 U.S. at 146, 112 S.Ct. 1081).
In Bernklau v. Principi, 291 F.3d 795 (Fed.Cir.2002), decided after Sims, we upheld the Veterans Court’s application of issue exhaustion to arguments that the veteran had failed to raise before the Board, holding that Maggitt did not require an explicit balancing of interests in the individual case. See id. at 799, 801-02. We held that new arguments for an earlier effective date based on past events allegedly supporting an informal claim for individual unemployability “TDIU” were properly rejected as not raised before the Board. See id. at 800-02.
Third, in an appeal from the Veterans Court to this court we have held that 38 U.S.C. § 7292(a) requires issue exhaustion at the Veterans Court level. InBelcher v. 1380*1380 West, 214 F.3d 1335 (Fed.Cir.2000), we explained that “38 U.S.C. § 7292(a) speaks directly to the requirement of issue exhaustion.” Id. at 1337 (citing Sims, 530 U.S. at 106-09, 120 S.Ct. 2080). In Belcher, the veteran raised an argument for the first time on appeal to this court that the Veterans Court failed to follow a VA regulation relating to service connection. Id. at 1336. We declined to consider the argument, holding that we lacked jurisdiction to hear it because it was not addressed by or presented to the Veterans Court. Id. at 1337.
The statutes and regulations thus impose a requirement of issue exhaustion in appropriate circumstances. While the requirement of exhaustion is relatively strict in proceedings before the Veterans Court, we have concluded that the non-adversarial nature of proceedings before the VA mandates a less strict requirement, as we now discuss.
In view of the non-adversarial nature of proceedings before the Board, it is appropriate in the first and second situations listed above that the Board and the Veterans Court give a liberal construction to arguments made by the veteran before the Board, as is specifically required by § 20.202 of the regulations in the case of appeals from the RO to the Board. “In various decisions we have made clear that the Board has a special obligation to read pro se filings liberally.”Robinson, 557 F.3d at 1358-59. In Robinson, we held that this obligation extends to cases in which the veteran is represented by counsel. See 557 F.3d at 1359-60. This obligation extends to all proceedings before the Board. It follows from the test articulated in Maggitt. See 202 F.3d at 1377.
Our prior cases have illuminated what is required by a liberal construction. In Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001), the Veterans Court affirmed the Board’s service-connection denial because the veteran had failed to allege TDIU. Id. at 1382. We held, in the context of clear and unmistakable error (“CUE”) claims, that the VA must “fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” Id. at 1384 (quoting Hodge v. West, 155F.3d 1356, 1362 (Fed.Cir.1998)). Thus, “[o]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the `identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.” Id.
In Comer v. Peake, 552 F.3d 1362 (Fed. Cir.2009), we held that where the veteran made a claim for service connection and record evidence supported total disability based on TDIU benefits, the Board was required to consider that evidence as a TDIU claim even though the veteran had not specifically raised a TDIU claim. See id. at 1366-69. Comer held that the requirement to liberally construe a veteran’s arguments extended to arguments that were “not explicitly raised” before the Board. Id. at 1366.
Similarly, in Robinson, we held that where the veteran made a claim for service connection and record evidence supported secondary service connection, the Board was required to consider that evidence as a claim for secondary service connection even though the veteran had not specifically raised secondary service connection. 1381*1381 See Robinson, 557 F.3d at 1361-62; see also Rivera v. Shinseki, 654 F.3d 1377, 1382 (Fed.Cir.2011) (“In light of the Board’s obligations to read veterans’ submissions liberally and to consider the full context within which those submissions are made, we conclude that section 7105(d)(3) does not impose such a[n explicit statement] requirement, at least in the context of a case involving the single factual question of the sufficiency of the veteran’s evidence to reopen a claim.”).
Roberson, Robinson, and Comer thus require the Veterans Court to look at all of the evidence in the record to determine whether it supports related claims for service-connected disability even though the specific claim was not raised by the veteran. They also require that veterans’ procedural arguments be construed liberally, but those cases do not go so far as to require the Veterans Court to consider procedural objections that were not raised, even under a liberal construction of the pleadings.
There is a significant difference between considering closely-related theories and evidence that could support a veteran’s claim for disability benefits and considering procedural issues that are collateral to the merits. As to the former, the veteran’s interest is always served by examining the record for evidence that would support closely related claims that were not specifically raised. As to procedural issues, that is not always the case. A veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution. Under such circumstances, the failure to raise an issue may as easily reflect a deliberate decision to forgo the issue as an oversight. Having initially failed to raise the procedural issue, the veteran should not be able to resurrect it months or even years later when, based on new circumstances, the veteran decides that raising the issue is now advantageous. For this reason, absent extraordinary circumstances not apparent here, we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran, though at the same time giving the veteran’s pleadings a liberal construction.
In short, we hold that the Board’s obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the veteran fails to raise them before the Board. Under the balancing test articulated in Maggitt, the VA’s institutional interests in addressing the hearing issue early in the case outweigh Scott’s interests in the Veterans Court’s adjudication of the issue.
A review of Scott’s pleadings to the Board confirms that Scott did not raise the hearing issue in his current appeal to the Board. The regulations do not require that the Board or the Veterans Court address the veteran’s argument that the Board erred in not providing him with a hearing.
See also Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) (“Ordinarily an appellate court does not give consideration to issues not raised below…. And the basic reasons which support this general principle applicable to trial courts make it equally desirable that parties should have an opportunity to offer evidence on the general issues involved in the less formal proceedings before administrative agencies entrusted with the responsibility of fact finding.”).
If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed.
38 C.F.R. § 20.202; see also 38 U.S.C. § 7105(d)(3) (“The appeal [to the Board] should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case. The benefits sought on appeal must be clearly identified.”).
 Section 7252(a) provides: “The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals…. The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.” 38 U.S.C. § 7252(a).
Scott relies on cases from other circuits which held that issue exhaustion did not apply to various agency proceedings. But none of these cases involved a statute or regulation that specifically imposed an issue exhaustion requirement. See Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1081 (9th Cir. 2013) (declining to apply issue exhaustion to an appeal from the Surface Transportation Board because the “administrative process lacks an adversarial component” with no mention of a statute or regulation requiring otherwise); Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 630 (9th Cir.2008) (“No ERISA statute precludes courts from hearing objections not previously raised … nor does any ERISA statute or regulation require claimants to identify all issues they wish to have considered on appeal.”); Coalition for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 463 (6th Cir.2004) (“In considering whether the district court properly imposed an issue exhaustion requirement in the case sub judice, we initially observe that such a requirement exists in neither [the agency’s] organic statute nor its regulations.”).
After a decision of the [Veterans Court] is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation… or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.