Admissibility of governmental investigatory reports, particularly findings and conclusions relating to fault, can have massive ramifications. Accordingly, it is important to recognize admissibility issues relating to governmental investigatory reports and how to properly argue for or against admission of same into evidence. The purpose of this article is to establish not only the basic premise for admissibility of governmental investigatory reports but to also provide case law and arguments for admiralty litigators to utilize when arguing for or against admissibility of the findings and conclusions contained in governmental investigatory reports.
Admissibility of Governmental Investigatory Reports
Governmental investigatory reports are presumed admissible under Federal Rule of Evidence 803(8). In this regard, Federal Rule of Evidence 803(8) defines the “public records and reports” which are not excludable by the hearsay rule as follows:
[r]ecords, 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 a duty imposed by law as to which matters there was a duty to report, . . . (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.
See Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
Based on the presumption governmental investigatory reports are admissible under 803(8), the party challenging the report being admitted into evidence bears the burden of establishing the report is not trustworthy based on: (1) the timeliness of the report; (2) the investigator’s skill or expertise; (3) whether a hearing was held; and (4) the investigator’s possible bias. Id. at 167 n.11. A court’s decision regarding admissibility is reviewed under an abuse of discretion standard. See Eason v. Fleming Companies, Inc., 4 F.3d 989 (5th Cir. 1993) (per curiam). Accordingly, most governmental investigatory reports, and included findings and conclusions, are admitted into evidence based on the presumption of admissibility established in Beech. See Beech, 488 U.S. 153.
Admissibility of Governmental Investigatory Report Findings and Conclusions
However, contrary to Beech, in Thibodeaux v. Wellmate, the United States District Court for the Eastern District of Louisiana found that although governmental investigatory reports are presumed admissible, “legal conclusions” contained within the reports are inadmissible regardless of whether the report is trustworthy. See Thibodeaux v. Wellmate, 2014 WL 1329802 (E.D. La. Mar. 31, 2014) (not reported). Additionally, three circuit courts, the Fourth, Ninth and Eleventh found “legal conclusions” are not admissible under 803(8). See Zeus Enters., Inc. v. Alphin Aircraft, Inc., 190 F.3d 238 (4th Cir. 1999); see also Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. 2010); Hines v. Brandon Steel Decks, Inc., 886 F.2d 299 (11th Cir. 1989). Based on the aforementioned deviations from Beech, an evaluation regarding case law for and against admission of governmental investigatory report findings and conclusions is warranted.
Cases Supporting Admitting Governmental Investigatory Report Findings and Conclusions into Evidence
There are several cases an admiralty litigator can rely on to argue governmental investigatory report findings and conclusions are admissible. The cases begin with the 1988 U.S. Supreme Court decision in Beech Aircraft Co. v. Rainey, 488 U.S. 153 (1988). In Beech, the Judge Advocate General (JAG) conducted an investigation and issued an investigative report and findings relating to a Navy flight training crash. Id. at 156. The United States Supreme Court addressed “the longstanding conflict among the Federal Courts of Appeals over whether Federal Rule of Evidence 803(8)(C), which provides an exception to the hearsay rule for public investigatory reports containing ‘factual findings,’ extends to conclusions and opinions in such reports.” Id. After comparing the interpretations of various Courts of Appeal and conducting its analysis, the United States Supreme Court held 803(8) should be broadly interpreted and found “factually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C).” Id. at 161–70.
In particular, the United States Supreme Court opined:
[w]e hold, therefore, that portions of investigatory reports otherwise admissible under 803(8)(C) are not inadmissible merely because they state a conclusion or an opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report.
Id. at 170. Accordingly, the Beech court held the JAG investigatory report conclusions and opinions regarding the accident being caused by pilot error were admissible because they were derived from a factual investigation, were trustworthy and did not violate Federal Rules of Evidence 401 and 403. See Id.
Walker v. Braus next addressed this issue. See 1991 WL 55877 (E.D. La. April 8, 1991) (not reported). In Walker, a collision between two vessels, one owned by Wade Trahan and the other by Armogene Braus, occurred and Mr. Walker was killed. Id. at *1. The United States Coast Guard investigated the accident and issued an investigative report, which found the proximate cause of the collision was Trahan’s speed on an unsafe course and careless navigation. Id. at *4. At trial, the plaintiff objected to admitting the report into evidence and claimed it was hearsay, untrustworthy, and contained legal conclusions. Id. In determining whether the Coast Guard report was admissible, the Walker court found the Coast Guard had vast experience in investigating maritime accidents, was an impartial investigator, the report was timely in spite of being issued eight weeks after the incident, a formal hearing was not required, the Coast Guard report stated factual, not legal conclusions, and there was nothing to suggest the report was untrustworthy. Id. As such, the court admitted the Coast Guard report, including the findings indicating the Trahan was the proximate cause of the collision, into evidence. Id. at *8.
In Moss v. Ole South Real Estate, the Fifth Circuit evaluated whether findings in a Housing and Urban Development (HUD) and an Air Force investigatory report were admissible. See Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1303 (5th Cir. 1991). At trial, the magistrate excluded both investigatory reports and claimed the reports were untrustworthy because they were: (1) untimely; (2) the circumstances prompting the investigation were “somewhat irregular”; (3) the investigation was inadequate because the investigator relied on prior interviews and there was not a formal hearing; and (4) the Magistrate’s review of the reports and file led him to believe the findings were incomplete and misleading and witnesses were biased. Id. at 1306.
On appeal, the Fifth Circuit evaluated whether the magistrate erred by not allowing the Air Force and HUD reports into evidence. Id. at 1305. The court found in light of the presumption of admissibility, the party opposing admission of the report bore the burden of proving the report was untrustworthy. Id. The court then held the magistrate abused his discretion by excluding the reports and opined:
the Magistrate did not limit himself to determining whether the reports were untrustworthy. Instead, he made several determinations that witnesses in the reports were not credible, and as a result the reports were not credible and therefore were untrustworthy. Credibility is not the focus of the trustworthiness inquiry. The magistrate looked broadly at credibility in ruling on both reports. . . In making determinations of credibility, the magistrate overstepped his role. The court must allow the jury to make credibility decisions and to decide what weight to afford a report’s findings. . . It follows that in determining trustworthiness under Rule 803(8)(C), credibility of the report itself or the testimony in the report are not the focus. Instead, the focus is on the report’s reliability.
Id. at 1306–07 (emphasis in the original).
Smith v. Waterman concerned the admissibility of a Coast Guard investigation regarding whether Waterman wrongfully discharged Smith for improperly performing his duties while undocking a vessel. See Smith v. Waterman Steamship Corp., 36 F.3d 90 *1 (5th Cir. 1994) (not reported). Smith argued the Coast Guard report was untrustworthy and thus inadmissible. Id. In evaluating whether the report was untrustworthy, the court pointed out Smith did not produce any evidence indicating the report was untrustworthy. Id. Rather, the record indicated: (1) the report was timely; (2) a formal hearing to determine fault was not warranted because it was not a major maritime accident; (3) Smith was given input into the investigation; (4) the investigation kept the case open at Smith’s request; and (5) it was only when no additional information could be provided to support Smith’s position that the case was closed. Id. Based on the foregoing, the Court rejected Smith’s argument and found the report (and the finding Smith improperly performed his duties) was properly admitted.
In 1996, the United States District Court for the Eastern District of Louisiana decided Avondale Indus., Inc. v. Bd. of Comm. of Port of New Orleans, 1996 WL 280787 (E.D. La. May 24, 1996) (not published). Avondale filed suit against the Board of Commissioners for the Port of New Orleans for damage caused to its vessel as it attempted to clear the span of the raised St. Claude Avenue Bridge. Id. at *1. At trial, defendants filed a motion in limine to exclude or prevent introduction of the Coast Guard Marine Safety Information System Report. Id. The court rejected the defendants’ arguments and opined the “admissibility of a report under Rule 803(8)(C) depends, not upon an arbitrary distinction between ‘fact’ and ‘opinion,’ but whether the report is trustworthy.” Id. (citing Beech, 488 U.S. at 167; Moss, 933 F.2d at 1305) (emphasis added). The court then listed the trustworthiness factors established in Beech and Moss and again mentioned the burden of proving untrustworthiness is on the moving party. Id. The court found the report was trustworthy and thus its findings and conclusions were admissible. Id.
Cases Favoring Excluding Governmental Investigatory Report Findings and Conclusions
In Thibodeaux, the plaintiff was injured on an offshore platform when a potable water tank bladder burst. Id. at *1. After the accident, the Bureau of Safety and Environmental Enforcement (BSEE), which was then known as the Bureau of Ocean Management, Regulation and Enforcement (BOERME) conducted an investigation and prepared a report regarding the accident. Id. Part of the report contained BSEE’s conclusions regarding the probable causes and contributing causes of the accident. Id. at *2. Relying on Zeus, Sullivan and Hines, the Thibodeaux court held BSEE’s conclusions were inadmissible because “the jury would have no way of knowing whether the preparer of the report was cognizant of the requirements of the underlying legal conclusion and, if not, whether the prepare might have a higher or lower standard than the law requires.” Id. at *2.
The oldest case relied on by Thibodeaux was Hines v. Brandon Steel Decks, Inc. See Hines, 886 F.2d at 299. In Hines, the Eleventh Circuit addressed whether conclusions in an Occupational Safety and Health Administration (OSHA) report were admissible. In this regard, the Eleventh Circuit stated, “Rule 803(8)(C) allows into evidence public reports that (1) set forth factual findings (2) made pursuant to authority granted by law (3) that the judge finds trustworthy.” Id. The court went on to explain, “…while a legal conclusion encompasses ‘the idea that the State will habitually sanction and enforce a legal relation of a specific content,’ a factual conclusion is one of a number of ‘contingencies on which the State predicates this relation.’” The court found reviewing courts should consider whether the report should be excluded because it is cumulative, irrelevant, more prejudicial than probative, fails to assist the jury, or would confuse the jury. Id. at 304. As such, the court determined the trial court committed error by solely relying on Beech and per se admitting the OSHA report and its findings without evaluating whether they were trustworthy or violated Federal Rule of Evidence 403. Id. The court further noted public reports otherwise admissible under 803(8)(C) may nevertheless be excluded in whole or in part if the trial court finds they are either irrelevant or more prejudicial than probative. Id. In response, the court remanded the case for the trial court to evaluate whether the OSHA report and its findings were admissible. Id.
Thibodeaux then relied on Zeus. See Zeus v. Alphin, 190 F.3d at 238. Zeus sued Alphin for breach of a contract requiring Alphin to restore Zeus’ airplane to “an airworthy condition”. Id. The issue on appeal concerned whether the district court properly admitted the decision and order dismissing Alphin’s appeal under 803(8). Id. at 241. Alphin argued the administrative law judge’s decision was not a “factual finding” because it was not the result of an investigation but rather was a result of an appellate quasi-judicial proceeding. Id. at 241–42. The court rejected Alphin’s argument and reasoned the administrative law judge satisfied the “investigation” requirement of 803(8) because he engaged in a systematic and detailed inquiry into the airworthiness of Zeus’ airplane. Id. at 242–43. According, the administrative law judge’s factual findings were admissible under 803(8). Id. at 243. The court then evaluated whether the NTSB’s order, which dismissed Alphin’s appeal, was admissible under 803(8). Id. at 243. The court determined the order was inadmissible because the “NTSB order merely held that Alphin lacked standing to appeal the ALJ’s decision. The NTSB order involved no factual determinations and was strictly a legal ruling.” Id. (emphasis added). Said another way, the order was not admissible under 803(8) because it did not contain any factual findings to support any opinions or conclusions.
The most recent case Thibodeaux relied on was Sullivan v. Dollar Tree. See Sullivan, 623 F.3d at 770. Sullivan involved a lawsuit where Sullivan was seeking lost wages under the Family and Medical Leave Act (FMLA). Id. at 775. The Department of Labor (DOL) concluded Dollar Tree’s actions violated the FMLA and informed the parties of its decision. Id. at 775–76. At trial, Sullivan attempted to introduce the DOL report into evidence but the district court held it was inadmissible hearsay not exempted by 803(8). Id. at 776. On appeal, the Sullivan court addressed the issue of whether 803(8) covers investigative report legal conclusions as well as factual findings. Id. at 777. As part of its analysis, the Sullivan court discussed Beech and pointed out the Beech court “cabined” its decision in footnote 13 which stated, “[w]e thus express no opinion on whether legal conclusions contained in an official report are admissible as ‘findings of fact’ under Rule 803(8)(C).” Id. (citing Beech, 488 U.S. at 170 n. 13). Based on the foregoing, the Ninth Circuit found the DOL report’s finding regarding Dollar Tree being Factory 2-U’s “successor in interest” was inadmissible hearsay. Id.
Governmental investigatory report findings and conclusions are admissible in the Fifth Circuit so long as they are “trustworthy.” However, as shown in Thibodeaux, Hines, Zeus, and Sullivan, several arguments exist for the admiralty litigator seeking to exclude findings and conclusions which are unfavorable to the litigator’s case in maritime, OCSLA, and Louisiana cases.
M. Matt Jett is a shareholder with Hall Maines Lugrin in Houston, Texas.
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