Eighth Circuit Case on "Excited Utterance" Exception to Hearsay Bar

Experienced Minnesota personal injury attorney, Tom Conlin, argued this week to revive a lawsuit against Lutsen Mountains ski area lost on summary judgment. An eye witness made statements around the time of a devastating accident, statements which she later disavowed. (The accident apparently left the injured plaintiff unable to testify as to the circumstances of his injury.)

Having rejected contemporaneous evidence of this eye witness, Judge Richard Kyle Sr. determined that plaintiff could not prove his case and therefore awarded summary judgment to the ski area (represented by Cortney Sylvester). Lutsen, in responding to the plaintiff’s appeal, relies heavily on the general “abuse of discretion” standard for Judge Kyle’s evidentiary ruling.

Query: did the District Court hear live testimony on the issue (or, on the other hand, was it based on affidavits and/or deposition transcripts)? If the latter, what inherent advantage did the District Court have to justify a highly deferential standard of review?

Brunsting et al v. Lutsen Mountains Corporation et al, U.S. Court of Appeals Case Number 09-1075 (enter case number here to hear 10/22/09 oral argument) (Panel: Judges Kermit E. Bye, C. Arlen Beam, Bobby E. Shepherd).