July 22, 2008

The United States Fourth Circuit Court of Appeals held that an accident report by a federal agency (MSHA), casting blame on the involved equipment, (and by implication OSHA, DOT, or other agency reports), was presumed to be admissible evidence.

In Kennedy v Joy Tech,Inc; Matric, Ltd, No 06-23007 (Mar 12, 2008) (unpublished opinion), the Circuit reversed a District Judge who dismissed a case against an equipment manufacturer at the Motions stage, labeling the MSHA report "speculative." The Circuit Court's discussion provides insights for strategies to prevent untrustworthy reports from increasing liability risks.

[T]he MSHA Report's conclusion implicates the provisions of Federal

Rule of Evidence 803(8)(C). That hearsay exception specifically

addresses the use in evidence of "factual findings resulting from

an investigation made pursuant to authority granted by law." Fed.

R. Evid. 803 (8) (C).l1 It specifies that:

The following are not excluded by the hearsay rule, even

though the declarant is available as a witness . (8)

... Records, reports, statements, or data compilations,

in any form, of public offices or agencies, setting forth

(C) [when used] in civil actions and proceedings .

. . 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.

 

Under Rule 803(8)(C), the evidentiary admissibility of public

records and reports is deemed to be presumed, based on the policy

determination that such admissibility is warranted "because of the

reliability of the public agencies usually conducting the

investigation, and their lack of motive for conducting the studies

other than to inform the public fairly and adequately." Ellis v.

Int'l Plavtex, Inc., 745 F.2d 292, 300 (4th Cir. 1984...

....

When the trustworthiness of such an investigative

report has been challenged, a court should assess and weigh factors

such as: (1) the timeliness of the investigation; (2) the special

skill or experience of the investigators; and (3) any possible

motivation problems. Ellis, 745 F.2d at 300-01. We have also

identified other factors that may, in the proper circumstances, be

appropriate to such an evidentiary assessment, including

"unreliability, inadequate investigation, inadequate foundation for

conclusions, [and] invasion of the jury's province."

....

In light of the foregoing, the district court necessarily

abused its discretion in excluding the MSHA Report's conclusion

from its summary judgment assessment. First and foremost, the

court failed to recognize and apply a presumption of admissibility

to the MSHA Report....

Opinion at 20-22. The decision underscores the need for equipment manufacturers, as well as employers, to participate in and defend agency investigations at the earliest stage. These immediate investigations collect interview statements and documents, and often dismantle and/or test equipment, in attempts to determine causation, sometimes by agency personnel without the requisite expertise. Investigators also may be influenced by plaintiffs' counsel seeking to evade workers' compensation shields through product liability claims. Early investigation participation can document agency mistakes, identify and record inappropriate intervention by plaintiffs counsel, and quickly challenge incorrect conclusions.

Expertise in agency procedures and in the agency review and contest process can provide critical support for the defense of potential claims based on agency reports. If you would like a copy of this opinion, or examples of successful investigation strategies, preventing risks of undue liability awards, please call or email Henry Chajet at (202)457-6511; hchajet@pattonboggs.com.

 ***

The Patton Boggs Health and Safety Law Group consists of attorneys who have resolved client problems in environmental, energy, natural resource, and safety and health law since the late 1960s. With lawyers in Washington, D.C., Alaska, Colorado, Texas, New Jersey, New York, and Northern Virginia, we have experience with EPA, OSHA, MSHA, NIOSH, DOT, OPS, Coast Guard, NTSB, FAA, FDA, CSP, the Chemical Safety Board, and almost every other federal and state government health and safety agency in the United States and throughout the world. We speak a variety of languages; have backgrounds in business, science, engineering, industry, and government; and combine preventive law counseling with courtroom and lobbying expertise to achieve results. For more information go to: http://www.pattonboggs.com or contact Henry Chajet (hchajet@pattonboggs.com) at 202-457-6511, Mark Savit (msavit@pattonboggs.com) at 202-457-5269, Cole Wist (cwist@pattonboggs.com) at 303-894-6159, or John Austin (jaustin@pattonboggs.com) at 202-457-6167.

Important Note: This ALERT does not constitute legal advice and counsel should be consulted regarding specific factual situations which will determine the compliance advice applicable to any particular question regarding the subject matter. If you would like additional information or advice and counsel on training, compliance or audits, please let us know. 

NOTE: You may receive this alert from other people, which often occurs. To SUBSCRIBE, change your address or to change your e-mail format, simply click here. To UNSUBSCRIBE or OPT-OUT, simply e-mail INSIGHTS@pattonboggs.com with "UNSUBSCRIBE" in the subject line. To correspond with INSIGHTS, send your message to INSIGHTS@pattonboggs.com. Thanks.