Supreme Court
No. 2025-45-Appeal.
(PC 15-2137)
Galbin Fernandez, in his capacity as the :
Administrator of the Estate of Eva Pena
v. :
Rhode Island Public Transit Authority :
et al.
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email [email protected], of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2025-45-Appeal.
(PC 15-2137)
Galbin Fernandez, in his capacity as the :
Administrator of the Estate of Eva Pena
v. :
Rhode Island Public Transit Authority :
et al.
Present: Suttell, C.J., Robinson, Lynch Prata, Long, and Indeglia (ret.), JJ.
OPINION
Chief Justice Suttell, for the Court. The plaintiff, Galbin Fernandez, in his
capacity as the Administrator of the Estate of Eva Pena, appeals from a Superior
Court order denying his motion for a new trial, which he filed after a jury returned a
verdict in favor of the defendant, Rhode Island Public Transit Authority (defendant
or RIPTA). On appeal, the plaintiff proffers a single evidentiary error—what he
characterizes as the so-called unidentified interpreter exception to the rule against
hearsay. This case came before the Supreme Court pursuant to an order directing
the parties to appear and show cause why the issues raised in this appeal should not
be summarily decided. After considering the parties’ written and oral submissions
and reviewing the record, we conclude that cause has not been shown and that this
case may be decided without further briefing or argument. For the reasons set forth
-1-herein, we reverse the order of the Superior Court and remand the matter for a new
trial consistent with this opinion.
I
Facts and Travel
On August 12, 2014, Eva Pena was injured while attempting to board a RIPTA
bus departing from Kennedy Plaza in Providence, Rhode Island. On May 21, 2015,
she filed suit against RIPTA in the Providence County Superior Court, alleging that
RIPTA’s bus driver was negligent in closing the bus doors on her, resulting in severe
bodily injuries. In 2019, Pena passed away and her estate was substituted as the
plaintiff in the action. Nearly ten years after Pena initially filed suit, on September
17, 2024, the case proceeded to trial. We recite herein the trial testimony relevant to
the present appeal.
Although Pena passed away prior to trial, her deposition testimony—taken
with the assistance of a Spanish interpreter—was read into the record. Pena stated
that she was born in the Dominican Republic, but she added that she had lived in the
United States since 1979 and could speak a little bit of English. She recalled that,
on the day in question around noon or one o’clock in the afternoon, she was standing
in Kennedy Plaza waiting for the Broad Street bus. There were eight people in front
of her, and she was the last to board. While she was attempting to get on the bus,
she stated that the bus driver “blocked the door, the entrance” and “[she] fell on [her]
-2-knees.” She said, “Stop, Stop. And the people inside the bus w[ere] yelling, saying,
[w]hat happened, what happened? And the bus stopped.” When asked whether the
doors touched her when they closed, she responded, “Yes. Completely. I was there
blocked.” She mentioned that she lost consciousness when she fell, and when she
came to, “there was a lot of blood[,]” clarifying that the blood was coming from the
shin of her right leg.
Afterwards, Pena recalled, “they sat [her] on a bench, and they gave [her]
something for the blood [on her] leg, and they took [her] down, and then they put
[her] in another bus.” She went to the hospital a few days later, but she did not
receive treatment and left after four hours of waiting to be seen. She testified to
several residual injuries as a result of the incident—mainly, trouble walking and
getting around. She stated, “I cannot go shopping, go to laundromat[,] I can hardly
go to the church, and I need to go to the church. I used to go to my sister[’]s, now I
cannot get there.”
The deposition testimony of Josef Patyna, the driver of the RIPTA bus Pena
was attempting to board when she was injured, was also read into the record. Patyna
stated that on the day of the incident he pulled up to the stop and opened the front
bus door. People began to get on, and he heard something going on but could not
see anything. After the line of people cleared, he saw a woman “complaining
something happened to her.” She was holding her shin, and Patyna waved over a
-3-nearby RIPTA supervisor, Todd Millard. Patyna stated that he did not close the doors
in any manner while Pena or any passenger on the bus was attempting to board. In
fact, he stated that the doors remained open “from the stop of the bus until [he] got
order to move the bus, [to] proceed to the route.”
Millard testified that at the time of the incident in 2014 he was employed as a
supervisor for RIPTA. His responsibilities included responding to situations such
as, among others, accidents, incidents, and mechanical breakdowns. Millard was in
Kennedy Plaza, a couple hundred feet away from the aforementioned incident when
Patyna waved him over to the bus. He further testified that he witnessed a female
passenger who appeared to be upset with a leg injury that he described as “a small
amount of blood dripping down her leg.” Millard sat her on a nearby bench, but
stated that he was unable to speak with her due to a language barrier—he spoke
English and Pena spoke Spanish. There were a few people in the area waiting for
other buses, and Millard asked if anyone spoke Spanish and could assist him. He
claimed that he was able to find someone and used this person as an interpreter to
communicate with Pena.
Millard’s testimony and written report regarding his conversation with Pena
is central to the present appeal. It was also the subject, in part, of plaintiff’s motion
in limine and motion for a new trial. At the hearing on the motion in limine, heard
and decided by the trial justice on July 17, 2024, plaintiff’s counsel argued that there
-4-was no indicia of reliability for Millard’s report describing what Pena allegedly said
about the incident because there was no known identity or contact information for
the Spanish interpreter who facilitated their conversation. Further, he contended that
the statements of the Spanish interpreter were inadmissible double hearsay.
Counsel for RIPTA disagreed, contending that “the words came from the
plaintiff’s mouth, even though they came through someone who translated * * *.”
The trial justice stated that she would reserve her ruling on the issue, noting,
however, that “if the * * * testimony given at the time of trial is consistent with the
arguments and the deposition testimony, I am likely to allow Mr. Millard’s report to
be admitted as a full exhibit without redaction.”
At trial, Millard testified that, with the help of the Spanish interpreter, he asked
Pena several questions. He inquired if she needed medical attention or wanted a
rescue, which she declined. He then asked her what happened, and he stated that
she told him “[t]hat she had tripped.” Plaintiff’s counsel objected after each
question, indicating that he was preserving his pretrial objection to the testimony;
the trial justice overruled each objection. Millard also stated that he asked Pena for
“[b]asic information” including her name, address, and a contact phone number. As
part of his supervisory duties, he prepared a report detailing the information that he
collected from Pena. He made no mention of the Spanish interpreter in his report,
and when asked why this information was not included, he stated, “I don’t have an
-5-answer for that.” Millard also failed to obtain a name or any contact information for
the Spanish interpreter, adding that he did not think there was a reason to get her
information because she did not witness the incident.
Galbin Fernandez, Pena’s adult son, also testified at trial. Fernandez testified
that he had lived in New Jersey for much of his life; however, he said that he kept in
regular contact with his mother in the years surrounding the incident. Pena called
him on the day in question, at a time he believed was only a few minutes after the
incident occurred when Millard had brought her to sit on a nearby bench. Pena told
Fernandez that she was getting on the bus and “she had one leg, you know, on the
step of the bus, and all she remembers, she recalls the bus, the doors closing on her
leg and her falling, people screaming, you know, for the bus driver to stop.” He
stated that she did not mention a Spanish interpreter in their conversation.
Following trial, the jury returned a verdict for RIPTA, finding that plaintiff
failed to prove defendant’s negligence by a fair preponderance of the evidence. The
plaintiff moved for a new trial, arguing that the trial justice erred in denying his
motion in limine “to exclude hearsay statements from a so-called Spanish
[i]nterpreter.” The plaintiff cited to a case from the United States Court of Appeals
for the First Circuit, Philibotte v. Palizza, No. 23-1516, 2024 WL 1655919 (1st Cir.
April 17, 2024), for the proposition that “statements made by unidentified declarants
lack any indicia of reliability.”
-6-In response, defendant argued that plaintiff’s reliance on the First Circuit case
was misplaced because it dealt “with an unidentified declarant, in which statements
by the unidentified declarant have been found to be hearsay.” The defendant argued
that, in this case, the declarant was identified as Pena. RIPTA maintained that the
Spanish interpreter was not a declarant, as she was “simply interpreting from
Spanish into English what the declarant, Ms. Pena, told her.” After hearing the
parties’ arguments, the trial justice stated:
“I’m not aware of any Rhode Island law on this issue at
all. Frankly, I do think it is, for me at least, a novel issue.
It just has never come up before this case. * * * I am not
convinced that the plaintiff’s argument is correct. I’m not
convinced it’s completely wrong. This is, to me, somewhat
of a gray area. I’m not going to waste the parties’ or the
[c]ourt’s time by granting a new trial based on that issue.
I think it’s an issue that may in fact belong in the Supreme
Court for some clarification. And if that’s where plaintiff
goes, then there may be some clarity brought to bear on
the question. But I’m not going to order a new trial based
on that issue, because I am not convinced that the plaintiff
is correct. But, again, I’m not convinced that the plaintiff
is not correct. So I think the best place for that issue to go
is to the decision makers in the State, upstairs on the 7th
floor. It is a super interesting issue, frankly.”
The trial justice entered an order denying plaintiff’s motion for a new trial on
December 10, 2024, and plaintiff timely appealed.
-7-II
Standard of Review
“It is well settled that we review a trial justice’s decision admitting or
excluding evidence under an abuse of discretion standard.” State v. Husband, 162
A.3d 646, 655 (R.I. 2017) (brackets omitted) (quoting State v. Pona, 66 A.3d 454,
465 (R.I. 2013)). This Court “will reverse a trial justice’s ruling on the admissibility
of evidence only where it constitutes a clear abuse of discretion.” State v. Reverdes,
295 A.3d 770, 777 (R.I. 2023) (quoting State v. Doyle, 235 A.3d 482, 493 (R.I.
2020)).
III
Discussion
We begin with a brief overview of the hearsay principles relevant to the issue
presently before the Court. “Rule 801(c) of the Rhode Island Rules of Evidence
defines hearsay as ‘a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’”
State v. Adams, 161 A.3d 1182, 1198 (R.I. 2017) (quoting R.I. R. Evid. 801). A
declarant is defined as “a person who makes a statement[,]” and a statement is “(1)
an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by
the person as an assertion.” R.I. R. Evid. 801(a)-(b). “Hearsay is not admissible
-8-except as provided by law.” State v. Rivera, 253 A.3d 851, 856 (R.I. 2021) (quoting
State v. Oliveira, 961 A.2d 299, 314 (R.I. 2008)).
The parties agree that the present issue is one that this Court has not yet passed
upon. However, our research reveals two cases, albeit over a century old, that are
instructive. In State v. Epstein, 25 R.I. 131, 55 A. 204 (1903), this Court addressed
the question of whether a victim’s statements, made against the defendant and
communicated to police through an interpreter, were properly admitted into evidence
at trial. Epstein, 25 R.I. at 140, 55 A. at 208. There, we stated that “[i]n so far * * *
as [the officers’] testimony at the trial related to what [the victim] said in this way,
it was clearly hearsay testimony; for they only knew what was in fact said by him
from what the interpreter told them that he said.” Id.
The Epstein decision cites to State v. Terline, 23 R.I. 530, 51 A. 204 (1902), a
case decided by this Court just a year prior. Epstein, 25 R.I. at 140, 55 A. at 208.
There, the defendant was charged with perjury after testifying as a witness in a
criminal action. Terline, 23 R.I. at 531, 51 A. at 205. The defendant, who spoke
Italian, gave his testimony through a courtroom interpreter; and, at his subsequent
perjury trial, the trial justice permitted witnesses who did not understand Italian to
testify to the defendant’s statements as translated by the interpreter. Id. at 531, 539,
51 A. at 205, 207-08. There, we stated:
“While it is true that the interpretation of the words of a
witness testifying in a foreign language, by one who is
-9-sworn in court and translates the testimony to the tribunal,
is not obnoxious to the hearsay rule, because both the
original witness and the interpreter are under oath and
subject to cross-examination, yet where a witness is
offered to testify to the statements of another person,
spoken in a language not understood by him, but translated
for him by an interpreter, such witness is not qualified,
because he does not speak from personal knowledge.” Id.
at 539, 51 A. at 208.
We added, “[a]ll which he can know as to the testimony which is in fact given in
such a case is from the interpretation thereof which is given by another person.” Id.
However, we noted that, at that time, some courts had recognized an exception “in
those cases where the interpreter acts as the agent of the witness in translating his
testimony[,]” and, there, “it is held that what the interpreter said is admissible on the
ground that the language of the interpreter in such a case is to be taken prima facie,
at any rate, as the language of the witness who employs him and speaks through
him.” Id. at 540, 51 A. at 208. It appears that this Court has not had occasion to
review or reconsider the issue since. See State v. Feliciano, 901 A.2d 631, 646 (R.I.
2006) (declining to substantively revisit our holdings in Epstein and Terline because
the defendant did not properly preserve the issue for review).
Our research on the present weight of authority reveals no definitive
consensus among state and federal courts on the issue.1 On appeal, plaintiff directs
1
On one hand, some courts have adopted theories premised on the notion that an interpreter is a “language conduit” or “agent” of the non-English speaker. See United States v. Vidacak, 553 F.3d 344, 352 (4th Cir. 2009) (“[E]xcept in unusual
- 10 -us, as he did at the hearing on his motion for a new trial, to a First Circuit case in
which the court upheld the district court’s decision to exclude hearsay statements
made by unidentified declarants, determining that the district court “was well within
circumstances, an interpreter is no more than a language conduit and therefore his translation does not create an additional level of hearsay.”) (quoting United States v. Martinez-Gaytan, 213 F.3d 890, 892 (5th Cir. 2000)); Barron-Gonzalez v. State, 426 S.W.3d 508, 514 (Ark. Ct. App. 2013) (“[I]t has generally been held that an interpreter is viewed as an agent of the defendant; thus, the translation is attributable to the defendant as her own admission * * *.”). An oft-cited case from the United States Court of Appeals for the Ninth Circuit determined that “[t]he better approach is to consider on a case-by-case basis whether the translated statements fairly should be considered the statements of the speaker.” United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991). It cited to several factors “which may be relevant in determining whether the interpreter’s statements should be attributed to the defendant under either the agency or conduit theory,” including “which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter’s qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated.” Id.
However, other courts have taken the opposite view, finding that when an interpreter is utilized, there are two persons making statements—the person speaking to the interpreter and the interpreter themselves. See State v. Gutierrez-Fuentes, 508 P.3d 378, 389 (Kan. 2022) (“The inherent differences in languages mean that interpreters do not always convey a ‘one-to-one correspondence between words or concepts in different languages,’ the interpreter is a ‘declarant’ of her out of court statements * * *.”) (quoting United States v. Charles, 722 F.3d 1319, 1324-25 (11th Cir. 2013)); see also State v. Montoya-Franco, 282 P.3d 939, 941 (Or. Ct. App. 2012) (determining that an “out-of-court translation of a non-English speaker’s statements to a third party constitutes an assertion of the English meaning of the original statement”).
Given the fact that so many courts have resolved the interpreter issue in quite different ways and the fact that the issue is still not definitively resolved, we decline to depart from our historical precedents in evaluating whether the trial justice abused her discretion in this case. See generally Zachary C. Bolitho, The Hearsay and Confrontation Clause Problems Caused by Admitting what a Non-Testifying Interpreter Said the Criminal Defendant Said, 49 N.M. L. Rev. 193 (2019).
- 11 -its discretion when it concluded that they lacked the requisite ‘indicia of reliability
and trustworthiness.’” Philibotte, 2024 WL 1655919, at *4 (quoting United States v.
Barone, 114 F.3d 1284, 1292 (1st Cir. 1997)). In the case at bar, plaintiff argues that
the Spanish interpreter was an unidentified declarant and that the trial justice erred
in finding that she was not, adding that “[s]uch a legal fiction has no origin in either
Rhode Island or Federal case law and certainly no origin in the Rhode Island Rules
of Evidence.”
Conversely, RIPTA contends that the Spanish interpreter was not a declarant
and Pena, who is identified, was the only declarant of her statements. It further
asserts that her statements were admissible as that of a party opponent.2 To support
its argument, RIPTA cites to a string of federal case law, largely from the Fourth
Circuit, endorsing the language conduit theory. All of the cases cited by defendant
in that circuit rely on the court’s holding in United States v. Vidacak, 553 F.3d 344
(4th Cir. 2009). There, the defendant was convicted of making false statements on
his immigration application. Vidacak, 553 F.3d at 347-48. He completed the
application with the help of an interpreter, and later argued that the testimony of an
immigration officer was inadmissible double hearsay because the officer was
2
Rule 801(d)(2)(A) of the Rhode Island Rules of Evidence provides that “[a] statement is not hearsay if * * * [t]he statement is offered against a party and is (A) the party’s own statement, in either the party’s individual or a representative capacity * * *.”
- 12 -relaying the statements of the interpreter who did not testify at trial. Id. at 351-52.
The court held that the interpreter’s statements did not create double hearsay because
the interpreter was merely a language conduit and not a declarant for purposes of
hearsay. Id. at 352.
We agree with the trial justice that the scenario under review presents an
“interesting issue,” in which our limited jurisprudence provides little guidance.
However, we see no reason to part from the guidance that this Court has set forth in
Epstein and Terline in order to reach RIPTA’s desired result. As discussed supra, in
Epstein and Terline this Court determined that the admission of like evidence—
testimony recounting what a foreign-language speaker stated through the use of an
interpreter—was improperly admitted as evidence at trial. See Epstein, 25 R.I. at
140, 55 A. at 208; Terline, 23 R.I. at 539, 51 A. at 208. In Epstein, we definitively
stated that such evidence was “clearly hearsay testimony[.]” Epstein, 25 R.I. at 140,
55 A. at 208.
Furthermore, we are satisfied that the agency exception referenced in Terline
has no application to the case at bar. Millard testified that he found the Spanish
interpreter from a group of people waiting for buses and he asked if she could assist
him. During her deposition, Pena did not mention a Spanish interpreter at all, and,
at trial, Fernandez testified that Pena did not tell him anything about the presence of
- 13 -a Spanish interpreter at the scene of the incident. It is without question, in our view,
that the alleged interpreter cannot properly be deemed as an agent of Pena.
Moreover, it is clear to us that the contested evidence is lacking any indicia of
reliability or trustworthiness. See State v. Paster, 524 A.2d 587, 589 (R.I. 1987)
(“The theory of the hearsay rule is that many deficiencies, suppressions, sources of
error and untrustworthiness, which lie underneath the bare untested assertion of a
witness, may be best brought to light and exposed by the test of cross-examination.”)
(quoting 5 Wigmore, Evidence, § 1362 at 3 (Chadbourn rev. 1974)). Not only is the
alleged Spanish interpreter unidentified (making her unable to locate), and her
existence uncorroborated and disputed, but the record is devoid of any evidence of
her credentials, certification, or even comprehension of the Spanish language.
We are additionally troubled by the lengthy delay in Millard’s disclosure of
her purported existence. By his own admission, Millard made no mention of the
Spanish interpreter in his incident report, recorded the day of or, at the latest, the day
following the incident. In fact, it was only at his deposition—taken almost five years
later—that he first mentioned her presence at the scene of the incident and recounted
her alleged role in interpreting Pena’s statements. This substantial time gap serves
as another factor weighing against its reliability. See State v. Firth, 708 A.2d 526,
531 (R.I. 1998) (explaining that “a statement relating back to an incident that took
place nearly three and one-half years earlier lacks the type of reliability normally
- 14 -associated with hearsay exceptions”). Accordingly, we are satisfied that the trial
justice’s admission into evidence of Millard’s report and testimony as to what Pena
told him, through the use of the Spanish interpreter, constituted an abuse of
discretion.
We are cognizant that this case is before us on plaintiff’s appeal from the trial
justice’s denial of his motion for a new trial. Rule 59(a) of the Superior Court Rules
of Civil Procedure dictates that “[a] new trial may be granted to all or any of the
parties and on all or part of the issues for error of law occurring at the trial or for any
of the reasons for which new trials have heretofore been granted in the courts of this
state.” The 1995 Committee Notes to Rule 59 instruct3 that “care must be taken to
observe the provision of Rule 61 mandating the disregard of harmless error.” Rule
61 of the Superior Court Rules of Civil Procedure provides:
“No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or in
anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such
action appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties.”
3
Although nonbinding, “such notes can certainly be instructive and are appropriate for consideration in our analysis of a rule.” Cashman Equipment Corporation, Inc. v. Cardi Corporation, Inc., 139 A.3d 379, 384 n.4 (R.I. 2016).
- 15 -Professor Kent has concluded “the principle [that Rule 61] embodies fully
applies at the appellate level as well.” Robert B. Kent et al., Rhode Island Civil
Procedure § 61:1 at 588 (West 2024). We therefore consider whether the admission
of the hearsay affected the substantial rights of the parties, and we determine that it
did. We have stated that “the admission of hearsay is harmless when the record
demonstrates that it is merely cumulative of proper evidence.” Now Courier, LLC v.
Better Carrier Corp., 965 A.2d 429, 435 (R.I. 2009). It is evident to us that the
challenged evidence can in no manner be deemed cumulative. Our review of the
record reveals that Millard’s report and testimony indicating that Pena told him that
she had tripped was the only evidence of the kind that the jury could consider.
Moreover, it was in direct contradiction to Pena’s deposition testimony and
Fernandez’s testimony at trial that the bus driver closed the doors on her, causing her
to fall and resulting in her subsequent injuries. Thus, we cannot say that its
admission was harmless.
IV
Conclusion
For the reasons set forth herein, we reverse the Superior Court order denying
the plaintiff’s motion and remand for a new trial consistent with this opinion.
- 16 -STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Galbin Fernandez, in his capacity as the Administrator
Title of Case of the Estate of Eva Pena v. Rhode Island Public
Transit Authority et al.
No. 2025-45-Appeal.
Case Number
(PC 15-2137)
Date Opinion Filed July 15, 2026
Suttell, C.J., Robinson, Lynch Prata, Long, and
Justices
Indeglia (ret.), JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Melissa E. Darigan
For Plaintiff:
Ronald J. Resmini, Esq.
Attorney(s) on Appeal
For Defendant:
Kathleen Wyllie, Esq.
SU-CMS-02A (revised November 2022)