Cohen v. General Motors Corp.

• Decision Date: 10 March 1982
• Docket Number: No. 75-0336-CV-W-6.,75-0336-CV-W-6.
• Parties: Melvin COHEN, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Missouri

534 F. Supp. 509

Melvin COHEN, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.

No. 75-0336-CV-W-6.

United States District Court, W. D. Missouri, W. D.

March 10, 1982.

William H. Pickett, and Don Hutson, Hutson, VanHorn, Schmidt & Hammett, Kansas City, Mo., for plaintiff.

Thomas O. Baker, Watson, Ess, Marshall & Enggas, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER OVERRULING PLAINTIFF'S MOTION FOR NEW TRIAL

SACHS, District Judge.

This motion for new trial in a products liability case presents a significant issue of law with reference to hearsay exception 8(C), Rule 803(8)(C), F.R.Evid., which generally authorizes admission into evidence of "factual findings resulting from an investigation" conducted by a government agency.

A jury brought in a verdict against plaintiff, driver of a vehicle manufactured in 1971 by defendant (General Motors) and sold that year to plaintiff. Plaintiff claims that a defect in the power steering mechanism caused the steering to "lock" in a manner which made it practically impossible for him to avoid collision in 1974 with a parked vehicle. Plaintiff's eye was injured as a result, he contends, in that a scissors attached to a fingernail clipper which he was holding in his left hand punctured the eyeball, causing a trauma-induced cataract and near-blindness in the left eye. The defense centered on two issues: (1) lack of defect in the power steering equipment (similar in design to that of all power steering of all current General Motors cars and most of the vehicles manufactured by others) and (2) lack of causation or credibility of the claim in that plaintiff either injured his eye before the collision or collided with the parked car through inattentive driving unrelated to the steering system. The Court concludes, from hearing the evidence and argument and from the jury requests during the deliberation, that the issue of design defect was very probably never reached by the jury.¹ The significant legal issue at this time, however, does relate to certain evidence pertaining to the alleged defect.

It is plaintiff's contention that the spool valve in the power steering system suddenly locked, probably because a comparatively large metal particle or burr had broken loose under pressure of the power steering fluid, and that there were defects in (1) failing to "debur" the system during manufacture, (2) failing to incorporate a filter in the design, and (3) using a poppet valve which prevented a suddenly locked spool valve from being unlocked by increased pressure on the steering wheel. Defendant acknowledges that metallic contamination is anticipated in the system but contends the steering system is designed to tolerate such contamination. Expert testimony was presented by both sides.

The government investigation which poses an evidentiary question was initiated after complaints were registered with the National Highway Traffic Safety Administration (NHTSA) about "sticky" power steering (resulting from unfiltered contaminants not large enough to lock a valve) and occasional reports of locking, supposedly from larger contaminants similar to those which purportedly affected plaintiff's vehicle. Plaintiff relies on a 1973 complaint letter from the Center for Auto Safety (identified by counsel as a Nader organization) which was offered as proof of notice to General Motors prior to the injury to plaintiff and in support of a prayer for punitive damages. Plaintiff also relies on certain admissions by General Motors officials to NHTSA, during the course of the investigation, and in closing argument asserted (in support of punitive damages) that a large award to plaintiff was needed to cause General Motors to change its power steering system by adding a filter. Allegedly similar occurrences were also a part of plaintiff's case, it being plaintiff's contention that related incidents are some proof of defect and notice of defect.

The final document closing out the NHTSA investigation (Def. Exh. 106, referred to as the "closing memorandum") was issued by the Acting Chief, Investigations Division, on October 18, 1977. After reviewing the course of investigation, and noting various findings, a recommendation of closing was made, based on the following "conclusions":

No trend of lockup, binding or self-steering or of injuries, property damage accidents or other safety-related problems has been demonstrated in the past by the subject steering gear spool valves in the Saginaw power steering gear assemblies. There is no basis for believing that such a trend did, in fact, exist or that one will develop in the future.

The admissibility of the NHTSA report was considered in limine, together with a number of other matters. As reflected by the Court's memorandum of September 14, 1981, the Court's initial inclination was to exclude "agency opinion, based on investigations, absent persuasive authority contrary to the recent ruling in Smith v. Ithaca Corp., 612 F.2d 215, 220-3 (5th Cir. 1980)..." The Court's initial view was heavily influenced by Judge Wisdom's rationale in Ithaca, and by a preference for keeping litigation as sharply focused as reasonably possible. The Court also acknowledges entertaining a presumption of reliability where there has been litigation-type fact finding, as contrasted with agency investigations which lack adversary hearings.

Subsequent pretrial consideration of the issues and authorities moved the Court to accept at trial the nontraditional type of evidence offered by General Motors. The question still remains rather close, in my view, except for special factors in this case: (1) plaintiff's invitational use of evidence which would render it unfair to exclude the NHTSA report and (2) plaintiff's punitive damage claim. It would seem most unjust to ask a jury to assess a penalty for purported continuing misconduct in manufacturing a defective product without having before it the findings of the federal agency responsible for product safety.

A significant development in the pertinent legal authorities subsequent to my initial expression of views was the ruling by an intermediate appellate court in the New York state system, reversing a judgment for a plaintiff in very similar litigation where the trial court had excluded from evidence the quoted conclusion from the NHTSA report. Ellsworth v. General Motors Corp., 446 N.Y.S.2d 438 (1981). It is conceded that the pertinent federal evidentiary rule is also the state court rule in New York.²

The Court has also had an opportunity to review the current federal law applicable to the admissibility of evaluative reports concluding agency investigations.

Federal trial courts most frequently deal with agency findings in Title VII cases. The Court is now aware of a very strong recent ruling in the Ninth Circuit mandating presentation of EEOC findings to a jury in a subsequent employment discrimination case. Plummer v. Western International Hotels Company, Inc., 656 F.2d 502 (9th Cir. 1981). To the extent that a footnote in a Supreme Court opinion may be said to establish a major evidentiary doctrine, it appears that the Supreme Court has given a broad directive for liberal use of agency findings, somewhat at variance with Judge Wisdom's cautious approach in Ithaca. Chandler v. Roudebush, 425 U.S. 840, 863 n. 39, 96 S.Ct. 1949, 1960, n. 39, 48 L.Ed.2d 416 (1976).

The Advisory Committee's Note on Rule 803(8)(C), indicates that the leading federal evidentiary decision favoring liberal use of evaluative reports has been Judge Goodrich's opinion in Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467 (3rd Cir. 1950), allowing trial use of a report of the Bureau of Mines as to the cause of a gas tank explosion. Moran seems inconsistent with the Ithaca decision, but served as one of the authorities used by the Fifth Circuit in establishing a strong policy favoring admissibility of EEOC factual conclusions as to employment discrimination. Smith v. Universal Services, Inc., 454 F.2d 154, 158 n. 2 (5th Cir. 1972).

Plaintiff's counsel argues that Moran has...