Saturday, December 24, 2011
Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
So, how hard is it for the opposing party to prove that a public record lacks trustworthiness, making it inadmissible under Rule of Evidence 803(8)(B)? According to the recent opinion of the United States District Court for the District of New Hampshire in Masello v. Stanley Works, Inc., 2011 WL 5843494 (D.N.H. 2011), the answer is "pretty tough."In Masello, Joseph Masello
was standing on a Handy 2–Step provided by his employer, Christmas Tree Shops, hanging beach bags for sale in its store in Salem, New Hampshire. The left front leg of the stool cracked into several pieces, causing it to collapse. Masello fell backward, striking his head on the ground. He was non-responsive, so paramedics were called immediately, just after 3 a.m. The paramedics placed Masello on a back board and took him to the hospital, leaving the store around 3:40 a.m.
One of Masello's fellow employees subsequently retrieved the stool and three broken pieces of the left front leg, but was unable to locate the toe. So, as mentioned at the outset, the parties disagree over whether the toe broke off in the accident and could not be found afterwards or whether the toe had already broken off before Masello stepped on the stool that night. This disagreement is significant because the defendants' theory is that the stool collapsed due to the absence of the toe, which allowed the leg to slide out from under the stool when Masello stood on it, while the plaintiff's theory is that the stool collapsed due to the absence of a rounded edge on the bottom of the ribs connecting the first step to each of the front legs.
As a result of striking his head in the fall, Masello suffered a skull fracture and an acute subdural hematoma, which caused him to fall into a coma. Despite a craniotomy to attempt to relieve the pressure on his brain, Masello never regained consciousness. He died approximately two weeks later.
His wife, acting as the administratrix of his estate, thereafter brought an action against Stanley Works, Inc. (the distributor of the stool) and Zag Industries (the manufacturer of the stool) sounding in wrongful death and loss of consortium. The wife thereafter filed a motion in limine seeking to preclude the defendants from introducing evidence of an OSHA investigation and report.
Just over two weeks after Masello's accident, OSHA conducted a "comprehensive inspection" of the Salem Christmas Tree Shops location, interviewing, among others, the store's manager and its director of loss prevention. The manager told the investigator that "after the accident they examined the rest of their stools and five of the remaining stools were also found defective and taken out of service" The investigator also took photographs of the broken stepstool involved in the accident, and reviewed results of the tests on the Handy 2–Step performed in the late 1990s.
Based on this inspection, which [wa]s summarized in a 10–page report, OSHA concluded that Christmas Tree Shops had violated § 5(a)(1) of the Occupational Safety and Health Act of 1970...in that its "employees were exposed to the hazard of falling while working from a damaged 'Handy 2–Step' plastic stool." OSHA deemed this a "serious" violation and fined the company $5,000. Christmas Tree Shops did not contest either the finding of violation or the amount of the fine.
According to the wife, this report was "untrustworthy because the investigation did not include 'any sworn statements, cross-examination or proceedings in an adjudicatory venue," making it inadmissible under Rule of Evidence 803(8)(B). The court disagreed, concluding that
the test for trustworthiness...is not nearly so stringent. To the contrary, as this court recently observed, the court of appeals has held that "an initial presumption of admissibility" attaches to an officer's accident report, including its conclusions, so long as it is based on his or her factual investigation (which, again, the report here indisputably was)....
So, while the fact that the report was not the product of an adjudicatory hearing at which witnesses were sworn and cross-examined may have some bearing on its trustworthiness,...it cannot be called “untrustworthy” for that reason alone....And the plaintiff has not pointed out any other deficiency calling the trustworthiness of the report into question, such as the timeliness of the investigation.