In re Thirtyacre, Bankruptcy No. 91-82153
| Decision Date | 19 May 1993 |
| Docket Number | Adv. No. 91-8203.,Bankruptcy No. 91-82153 |
| Court | United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Central District of Illinois |
| Parties | In re Marvin THIRTYACRE, Debtor. Jody THORP, Plaintiff, v. Marvin THIRTYACRE, Defendant. |
Stephen T. Fieweger, Balch, Lefstein & Fieweger, P.C., Rock Island, IL, for plaintiff.
Gregory J. McHugh, Appleton & McHugh, Aledo, IL, for debtor, defendant.
JODY THORP (Plaintiff) filed an adversary action to determine the dischargeability of a debt owed her by the Debtor, MARVIN THIRTYACRE (Defendant) arising out of an assault. At the time of the incident, the Defendant was the sheriff of Mercer County, Illinois. He was also suffering from depression. In part, his depression was caused by his suspicion his wife was having an affair with Jim Brokaw (Brokaw), the Chief of Police for the City of Aledo, Illinois.1 He received treatments for his depression at the Veterans Administration Hospital in Iowa City, Iowa (VA Hospital). As part of his treatment, the drug Pamelor was prescribed. He was instructed not to drink alcoholic beverages while taking this drug.
Sometime prior to the incident, the Defendant had obtained a tape recording of a telephone conversation between Brokaw and his wife which confirmed in his mind that an affair was occurring. The day before the incident, the Defendant saw Brokaw and his wife driving in the same direction, but in separate cars, which added to his belief about an affair. The day of the incident the Defendant and his wife had an argument and that afternoon the Defendant started drinking. That evening he returned home and struck his wife.
During this period of time Brokaw was dating the Plaintiff. The Defendant wanted to tell the Plaintiff what he thought was going on between Brokaw and his wife. The Defendant went to the Plaintiff's home. No one was present. In the process, the Defendant kicked in the back door.
The Defendant then went to the police station in Aledo, Illinois. Brokaw and the Plaintiff returned to her home and found the damage. Brokaw called the Aledo police department and a telephone conversation between Brokaw and the Defendant occurred. In that telephone conversation the Defendant told Brokaw he was going to return to the Plaintiff's home to physically attack him.
The Defendant returned to the Plaintiff's home. The Plaintiff attempted to intercede, and an altercation ensued between the Plaintiff and the Defendant, with the Defendant striking the Plaintiff. The Aledo police then arrived and subdued the Defendant.
The Plaintiff sued the Defendant in state court and obtained a default judgment for $25,000.00. The Defendant filed a Chapter 7 case in bankruptcy, and the Plaintiff filed this adversary proceeding to have the judgment debt declared nondischargeable as a willful and malicious injury under § 523(a)(6) of the Bankruptcy Code, 11 U.S.C. § 523(a)(6). The Defendant contends because he was taking Pamelor and drinking alcoholic beverages, his mental capacity to form an intent to act in a willful and malicious manner was impaired. The parties stipulated that was the only issue and a trial was held. The matter was taken under advisement and the parties were given an opportunity to file written briefs, which they did.
Prior to deciding the substantive issue in this case, three evidentiary issues, also taken under advisement, must be decided. The first evidentiary issue is whether this Court should take judicial notice of the drug manufacturer's pamphlet for the drug Pamelor. This pamphlet contains sections entitled: Description, Actions, Indications, Contraindications, Warnings, Precautions, Adverse Reactions, Dosage and Administration, and How Supplied. The Defendant asked this Court to take judicial notice of the definition of Pamelor. In effect he was asking this Court to take judicial notice of the matters in the pamphlet, including that the drug when taken with an excessive consumption of alcohol may have adverse consequences.
Rule 201 of the Federal Rules of Evidence governs judicial notice of adjudicative facts. It provides:
Clearly the pamphlet does not fall within the scope of the rule and should not be admitted into evidence. It cannot be said that the effects of Pamelor when taken with an excessive consumption of alcohol are generally known within the jurisdiction of this Court. As stated in McCormick on Evidence:
The more reflective opinions speak in terms of the knowledge of "most men," (footnote omitted) or of "what well-informed persons generally know," (footnote omitted) or "the knowledge that every intelligent person has."
The information contained in the pamphlet does not fall within those standards.
Nor can it be said that the effect of the drug when taken with an excessive consumption of alcohol can be accurately or readily determined by resorting to the pamphlet. It is appropriate to take judicial notice of a proposition of science, but the Defendant's request does not fall within that category. Rather, the Defendant asks this Court to take judicial notice from the pamphlet of the effect on the Defendant of his using the drug while drinking. It does not follow from the pamphlet what the specific effect of the Defendant's use while drinking might be.
As the court stated in Clark v. South Central Bell Tel. Co., 419 F.Supp. 697 (W.D.La.1976):
Furthermore, F.R.E. 201 states that facts may be noticed if they are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." For a Court to notice facts judicially, if they are not matters of general knowledge, the sources of those facts must be placed before the Court. If a party places the source before the Court and requests judicial notice, the Court must take it if the facts are susceptible of judicial notice.
This standard of "indisputability" was discussed in Louisell & Mueller, Federal Evidence, § 57, Rule 201, p. 437:
Facts may be indisputable within the meaning of Rule 201 because (even though not generally known) they can be verified by resort to sources whose accuracy cannot reasonably be questioned. At one time courts indulged in the obvious fiction of consulting sources to refresh recollection, but it is clear enough that courts in reality simply inform themselves of facts which nobody is likely to carry around in his head from whatever sources the trial judge deems to be unquestionably accurate. Almanacs, encyclopedias, calendars, historical works and charts tabulating information deduced from the application of the laws of physics form only a part of what must be a list too long to be worth enumerating of sources to which a court may in proper circumstances resort for the purpose of deriving judicially noticeable information.
Discussing the general kinds of indisputable facts, the above authority states:
Historical and geographical/climatological facts are among the more frequent subject of judicial notice. Also noticed are political facts (such as the identity of office holders), facts relating to practices in business and industry, facts relating to the economy and its condition, sociological facts, and scientific and medical facts, where the question often to be answered is whether the fact in question has achieved sufficient acceptance in the scientific community to be considered indisputable.
If the Defendant had submitted information regarding Pamelor that had been obtained from the FDA or a medical dictionary (as he represented it was), then perhaps it would have been admissible. But for this Court to find that the manufacturer's own representations regarding the drug are "sources whose accuracy cannot reasonably be questioned" within the meaning of FRE 201(b) goes far beyond any reported application of that rule. There is no element of objectivity with such an application. In United States v. Houston, 4 M.J. 729 (U.S. Air Force Ct. of Mil.Rev.1977), the court held that judicial notice could be taken of a two-page publication setting out information pertaining to the background, pharmacological information, pattern of use, and subjective effects of the drug phencyclidine, finding that the information was factual and could be readily attained from the National Institute of Drug Abuse. The court in that case was willing to go beyond the record and do its own independent verification. In this Court's view, the burden is on the party seeking to have the court take judicial notice of the fact to put the sources before the court and establish their complete accuracy.
The next evidentiary issue involves the admissibility of the VA Hospital records. Relying on Pieters v. B-Right Trucking, Inc., 669 F.Supp. 1463 (N.D.Ind. 1987), the Defendant contends they are admissible under the "business records" exception to the hearsay rule. However, the court's reasoning in Pieters clearly is contrary to the Defendant's contention. In that case the court stated:
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