In case you missed it, Judge Woodcock issued a helpful refresher on some of the hearsay-within-hearsay principles in a recent decision, EMK, Inc. d/b/a Eaton Mtn. Ski Area v. Federal Pacific Elec. Co., Civil Action No. 08-383-B-W (D. Me. Jan. 7, 2010).
That case involved a building fire in which the issue in dispute was whether the fire was caused by a defective electric baseboard heater manufactured by the defendant, Federal Pacific. Federal Pacific moved in limine to exclude portions of two reports prepared by the state fire marshal's office and the Skowhegan Fire Department.
The fire marshal conducted an investigation and prepared a report which, among other things, included supposed statements made by the owner of the plaintiff company. Although Federal Pacific conceded that the remaining portions of the fire marshal's report might fall within the hearsay exclusion contained within Fed. R. Evid. 803(8)(C), it sought to exclude the references to the plaintiff's owner's statements as hearsay-within-hearsay. Relaying upon Weinstein's evidence treatise and a fairly similar First Circuit case involving hearsay statements contained within an FBI report, United States v. Mackey, 117 F.3d 24, 28-29 (1st Cir. 1997), Judge Woodlock had little difficulty in granting Federal Pacific's motion in limine to exclude the portions of the fire marshal's report reciting statements allegedly made by the plaintiff's owner.
As far as the town fire department report was concerned, the report contained the following statement: "Fire cause determine to be a result of faulty electric heater in bathroom in garage." Federal Pacific argued that the statement in the report on the cause of the fire was inadmissible because it was not expressed pursuant to the fire department's statutory authority (as the fire department was not charged with, and did not, investigate the cause of the fire), thereby failing to meet the requirements for admission under Fed. R. Evid. 803(8)(B). Federal Pacific also argued that the statement on causation was inadmissible because it was untrustworthy, so could not fall within the public report hearsay exception in Rule 803(8)(c).
The court side-stepped around the Rule 803 issues, finding that even if the statement in the report fell within one of the Rule 803 hearsay exceptions, it should be excluded as prejudicial under Fed. R. Ev. 403. As Judge Woodlock observed:
The critical issue in this case is whether a defect in Federal Pacific's electric baseboard heater caused the January 28, 2005 fire. As its report reveals, the Skowhegan Fire Department responded quickly to the alarm just before 9 p.m. and left the scene at 2:20 a.m. the next day. The report was filed immediately and there is no indication that a thorough cause and origin assessment was made or that the heater was examined for defects. Instead, the report simply states that “[f]ire cause determined to be a result of faulty electric heater in bathroom in garage.” It does not say who made this determination, his or her qualifications to make this determination, what they did to make this determination, and what other possible sources were considered and eliminated.
Id. at 5. The lack of any indication that the statement was supported by any investigation or evidence known to the fire department at the time the statement was made in the report was compounded by the risk that the jury might view the report as carrying "the imprimatur of municipal government," led to the risk the jury "could well place undue emphasis on its summary causation conclusion on the assumption that it reflects the considered opinion of a fire investigator, who is cloaked with governmental objectivity and expertise." Id. Based on the unreliability of the statement and the potential risk that it might cause mischief with the jury, the court granted the motion in limine as to that portion of the Skowhegan fire report.
Often these types of hearsay rulings occur in the midst of trial or in unwritten decisions. So this is a useful reminder on some basic evidence issues that frequently arise but often go unnoticed.
Comments