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Editor: Colin Miller
Univ. of South Carolina School of Law

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Monday, December 13, 2010

Trust Me: Eighth Circuit Finds EPA Report Inadmissible Because Of Disclaimer

Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

Meanwhile, Federal Rule of Evidence 803(8)(C) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

And, Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

The common theme: If a piece of evidence is not trustworthy, it can't be used under any of these Rules as is made clear by the recent opinion of the Eighth Circuit in Junk v. Terminix Intern. Co., 2010 WL 4978801 (8th Cir. 2010).

In Junk,

Rene Junk brought [an] action in state court on behalf of her son, Tyler (T.J.) Junk, against Terminix International Company (Terminix), Dow Chemical Company and Dow AgroSciences LLC (collectively Dow), and Terminix employee Jim Breneman. Junk alleged that T.J.'s multiple medical conditions were caused by exposure to Dursban, an insecticide manufactured by Dow, distributed by Terminix, and applied to the Junk household by Breneman and other Terminix employees. After Dow removed the case to federal district court, Junk moved to remand for lack of diversity since Junk and defendant Breneman were both citizens of Iowa. The district court denied the motion after concluding that Breneman had been fraudulently joined to evade diversity. Junk's claims against Breneman were subsequently dismissed, and summary judgment was entered for Dow and Terminix.

Junk thereafter appealed, claiming, inter alia, that the district court erred in granting the defendants' motion in limine to exclude an Environmental Protection Agency report that summarized research on the effect of chlorpyrifos exposure on pregnant women, fetuses, and children. The district court had granted this motion after examining a disclaimer on the report which stated that the "information provided does not necessarily reflect the views of the [EPA], and no official endorsement should be inferred." (The disclaimer further stated that the report is "not sufficiently detailed nor is it intended to be used directly for environmental assessments or decision making."). According to the district court, this disclaimer "appeared to cast doubt on its trustworthiness" and rendered it inadmissible under "Fed.R.Evid. 803(8)(C), 703, or 803(18)."

In affirming this ruling, the Eighth Circuit first found that even if the report otherwise qualified for admission under Federal Rule of Evidence 803(8)(C), the district court reasonably exercised its discretion in determining that this disclaimer indicated "a lack of trustworthiness," rendering the report inadmissible. Moreover, the Eighth Circuit found that

Junk's argument that the EPA report is admissible through Dr. Bearer's expert testimony under Rule 703 also fails. Rule 703 provides that "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion...unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Because the report takes the form of a brief summary of research rather than a scholarly publication, the court could determine that it had little probative value. The district court also concluded that the report's unfair prejudicial effect could be substantial if the jury were misled "into believing that [the] report records findings by the EPA." Because we agree that the report's probative value was minimal and its prejudicial potential substantial, we conclude that the district court did not abuse its discretion in excluding it.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/12/epa-report-junk-v-terminix-intern-co-f3d-2010-wl-4978801ca8-iowa2010.html

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