Walker v. Fairchild Industries, Inc., Civ. LV 81-540 RDF.

• Decision Date: 01 December 1982
• Docket Number: No. Civ. LV 81-540 RDF.,Civ. LV 81-540 RDF.
• Citation: 554 F. Supp. 650
• Parties: Barbara Ann WALKER, individually, and John Scott Walker and Samantha Leigh Walker, minors, by Barbara Ann Walker, their Guardian ad Litem, Plaintiffs, v. FAIRCHILD INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — District of Nevada

554 F. Supp. 650

Barbara Ann WALKER, individually, and John Scott Walker and Samantha Leigh Walker, minors, by Barbara Ann Walker, their Guardian ad Litem, Plaintiffs, v. FAIRCHILD INDUSTRIES, INC., Defendant.

No. Civ. LV 81-540 RDF.

United States District Court, D. Nevada.

December 1, 1982.

Gary Logan, Las Vegas, Nev., for plaintiffs.

William S. Barker of Cromer, Barker, Michaelson, Gillock & Rawlings, Las Vegas, Nev., for defendant.

DECISION RE PLAINTIFFS' MOTION FOR EARLY DETERMINATION OF THE ADMISSIBILITY INTO EVIDENCE OF USAF AIRCRAFT ACCIDENT INVESTIGATION REPORT

ROGER D. FOLEY, Senior District Judge.

I. Facts

This lawsuit arises out of an air crash which occurred at Nellis Air Force Base, Nevada, on July 10, 1981. Plaintiffs' decedent, Capt. Samuel S. Walker, USAF, was killed while piloting a USAF A-10 series aircraft, SIN 75-0302, manufactured by defendant Fairchild Industries, Inc. The plaintiffs, Walker's widow and two minor children, are claiming that the aircraft and its component parts were dangerously defective and the said defects were the proximate cause of the death of plaintiffs' decedent. The defendant's main defense is pilot error.

Plaintiffs have moved for an early determination of the admissibility into evidence of a USAF Aircraft Accident Investigation Report. The defendant objects to the admissibility of portions of that report.

II. Applicable Law

It is plaintiffs' contention that the subject report should be admitted into evidence at trial because it falls within the public records exception to the general hearsay rule. Rule 803(8) of the Federal Rules of Evidence (FRE) states:

"Public records and reports.—Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) 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."

A leading case in this area is Fraley v. Rockwell Intern. Corp., 470 F.Supp. 1264 (S.D.Ohio 1979). The case arose out of an airplane crash in which a Lt. R.M. Fraley, United States Navy, and a trainee were killed. The airplane was manufactured by Rockwell International Corporation. The United States Navy issued two reports on the crash. The first report discussed the general circumstances surrounding the crash and was prepared by the Judge Advocate General's Office. The second report was prepared by the Naval Rework Facility at Alameda, California, and contained conclusions about the cause of the crash which were developed from engineering analysis based upon the airplane wreckage. In Fraley, the Court gave the following excellent summary of the law in this area:

In practice, four criteria must be satisfied for Rule 803(8)(C) to apply. First, the hearsay statement contained in the public document must constitute a factual finding. Second, the factual finding must have resulted from an investigation authorized by law. Third, the declarant must have had first-hand knowledge of the matter asserted. Fourth, the hearsay statement must be trustworthy.

The first criterion is satisfied when the public document is either a finding of fact that was established by direct evidence or a finding of fact that was established by circumstantial evidence. Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir.1978).

....

The second criterion is satisfied if the investigation upon which the public document is based was sanctioned by law. Although Rockwell argues that the investigation must be required by law, the language of Rule 803(8) suggests otherwise. Section "B" of Rule 803(8), which does require that the underlying investigation be required by law, uses the language "... as to which matters there was a duty to report ..." to convey this message. By contrast, Section "C" of Rule 803(8) provides that the investigation need only be "... made pursuant to authority granted by law." It would seem that the drafters of the rule would have used identical language in both Sections if investigations covered under Section "C" had to be required by law, rather than merely permitted by it.

The third criterion can be satisfied in either of two ways. Ideally, the author of the document actually will have had first-hand knowledge of the factual findings which he has made. However, if he does not, the first-hand knowledge requirement imposed by Federal Rule of Evidence 602 still can be satisfied if the author had first-hand knowledge of the statements made by declarants who did have first-hand knowledge of the facts mentioned in the factual findings made in the public document.

Satisfaction of the final criterion depends, to a large extent, upon the court which is reviewing the evidentiary problem. Nevertheless, there are at least four factors which most courts review in making a determination of trustworthiness. These are: (1) the timeliness of the investigation; (2) the special skill or experience of the official who conducted the investigation and who reported it; (3) whether a hearing was held on the level at which the investigation was conducted; and (4) possible motivational problems. See Baker, supra.

It should be noted that a public report which satisfies all of these criteria still may be inadmissible. If the factual findings in the public document themselves are based upon hearsay, then the underlying hearsay also must fit within an exception to the general hearsay rule for the public document to be admissible. Fed.R. Evid. 805. Therefore, whenever public documents are offered into evidence, the first inquiries always should be whether the factual findings in the public documents rest upon hearsay and, if so, whether that hearsay is excepted from the general hearsay rule.

(Supra at 1266-67.)

The Court held that the first report prepared by the Judge Advocate General's Office lacked trustworthiness due to the inexperience of the investigator and therefore denied its admission. As for the second report, the Court admitted it on the basis that the factual findings made by the author of the report were based on firsthand knowledge of statements made by witnesses who did have firsthand knowledge of the facts mentioned in the report. Supra at 1268.

In another case in which the same documents were examined, Sage v. Rockwell International Corp., 477 F.Supp. 1205, 1209-10 (D.N.H.1979) (the trainee), the Court also admitted the first report on the basis that the inexperience of the investigator went to the weight of the report, without denying the admissibility of the evidence. In Sage, the Court gave the following analysis of why these reports should usually be admitted:

The type of record covered by subdivision (C)—"factual findings resulting from an investigation made pursuant to authority granted by law" had a mixed reception prior to the adoption of the Federal Rules. Part of this was undoubtedly due to the courts' reluctance to admit reports not completely based on personal knowledge, without however, analyzing the rationale for requiring personal knowledge in investigative situations. Courts saw only that the officer's conclusions were frequently based on information furnished by someone else. Wigmore argued that when there was a duty to investigate, this duty carried with it sufficient guaranties of trustworthiness to override the general principle that a witness must have firsthand knowledge. McCormick, a strong advocate of the desirability of admitting investigative reports, explained why they were ordinarily reliable:

"The following are some of the reasons for receiving the investigative report as evidence so far as the report is within the duty of the officer making it including those portions based on what he is told by those who claim to know and including his conclusions. The most important reason is time. The officer comes on the scene usually as early as it is feasible to get there. Usually the investigators of the parties come later and the statements are frequently partial and one-sided. The witnesses at the trial have often only a dim recollection of the event and their testimony rests mostly on their pre-trial refreshment of memory by these statements. The officer is often able to interview witnesses before they have been pulled one way or the other by the parties. The officer, too, is frequently a specialist—a doctor reporting death, a fire marshall investigating a fire—or at least experienced in like investigations, such as a highway patrolman reporting on a collision."

(Supra at 1209-10.)

However, it should be noted that the Court, in Sage, withheld a ruling until time of trial on the Aircraft Mishap Board Report, the same type of report that is the subject of this motion. Id. at 1210.

A few other problems with this area of the law should also be addressed. While the question of whether a hearing was held as part of the investigation is a factor listed in the determination of trustworthiness, it is not required if the investigation is a complete one and the report meets the other tests for trustworthiness. Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir.1978). Another area of some dispute is whether evaluative opinions contained in a report are admissible into evidence as "factual findings" pursuant to Rule 803(8)(C). The prevailing view is that all evaluative conclusions are within the scope of Rule 803(8)(C). Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir.1978); Melville v. American Home Assurance Corp., 584 F.2d 1306 (3rd Cir. 1978); Sage v. Rockwell International Corp., 477 F.Supp. 1205 (D.N.H.1979); contra, Smith v. Ithaca Corp., 612...