Filed: Apr. 02, 1998
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 97-20056 Summary Calendar _ JACKIE SMITH, Individually and on behalf of all beneficiaries of BERNARD ALLEN, deceased, ET AL., Plaintiffs, JACKIE SMITH, Individually and on behalf of all beneficiaries of BERNARD ALLEN, deceased; Plaintiff-Appellant. versus ISUZU MOTORS LIMITED, ET AL., Defendants, AMERICAN ISUZU MOTORS INCORPORATED; ISUZU MOTORS AMERICAN INCORPORATED, Defendants-Appellees. _ Appeals from the United States District Court f
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 97-20056 Summary Calendar _ JACKIE SMITH, Individually and on behalf of all beneficiaries of BERNARD ALLEN, deceased, ET AL., Plaintiffs, JACKIE SMITH, Individually and on behalf of all beneficiaries of BERNARD ALLEN, deceased; Plaintiff-Appellant. versus ISUZU MOTORS LIMITED, ET AL., Defendants, AMERICAN ISUZU MOTORS INCORPORATED; ISUZU MOTORS AMERICAN INCORPORATED, Defendants-Appellees. _ Appeals from the United States District Court fo..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 97-20056
Summary Calendar
__________________
JACKIE SMITH, Individually and on behalf of all beneficiaries
of BERNARD ALLEN, deceased, ET AL.,
Plaintiffs,
JACKIE SMITH, Individually and on behalf of all beneficiaries
of BERNARD ALLEN, deceased;
Plaintiff-Appellant.
versus
ISUZU MOTORS LIMITED, ET AL.,
Defendants,
AMERICAN ISUZU MOTORS INCORPORATED;
ISUZU MOTORS AMERICAN INCORPORATED,
Defendants-Appellees.
_____________________________________________
Appeals from the United States District Court for the
Southern District of Texas
______________________________________________
April 2, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
BENAVIDES, Circuit Judge:
On July 22, 1994, Bernard Allen died in a single-vehicle
accident, while driving a 1987 Isuzu Trooper. Allen’s mother,
Jackie Smith, individually and on behalf of the beneficiaries of
his estate, brought suit against American Isuzu Motors, Inc., Isuzu
Motors America, Inc., and Isuzu Motors Limited.1 Smith claimed
that the Trooper was unreasonably dangerous because it had a
propensity to roll over, that it was not crashworthy because the
windshield allowed Allen to be ejected, that Isuzu’s warnings were
inadequate, and that the defendants were negligent. The district
court rendered judgment on a take-nothing jury verdict against
plaintiffs.
Appellant challenges three of the district court’s evidentiary
rulings, which excluded evidence relating to crashworthiness and
unreasonable dangerousness. We affirm.
I.
We review the district court’s evidentiary rulings for abuse
of discretion. Johnson v. Ford Motor Co., 988 F.2d 573, 578 (5th
Cir. 1993). Under Federal Rule of Civil Procedure 61, we may not
set aside a verdict based on an error in the exclusion of evidence,
“unless refusal to take such action appears to the court
inconsistent with substantial justice.” Fed. R. Civ. P. 61. To
vacate a judgment based on such an error, we “must find that the
substantial rights of the parties were affected.” Carter v.
Massey-Ferguson, Inc.,
716 F.2d 344, 349 (5th Cir. 1983).
1
The district court dismissed Isuzu Motors Limited because
plaintiffs failed to obtain service of process on it in a timely
manner. Smith does not appeal this dismissal.
2
II.
A.
Smith first complains that the district court erroneously
refused to admit a 1996 Consumer Reports article regarding the
stability of 1995 and 1996 Isuzu Troopers. The article gave 1995
and 1996 Isuzu Troopers a “not acceptable” rating because Consumer
Reports’ testing showed that those vehicles had a propensity to
roll over. The article, however, specifically disclaimed its
applicability to earlier year-model Troopers: “The Not Acceptable
rating does not apply to 1994 and earlier Troopers, which had a
slightly different suspension.” Id. Thus, the probative value of
this piece of evidence was negligible, while the risk of confusing
the issues and misleading the jury was significant. See Fed. R.
Evid. 403. Accordingly, we conclude that the district court did
not abuse its discretion in refusing to admit the article.2
B.
Plaintiffs next argue that the district court abused its
discretion by refusing to admit three memoranda prepared by staff
members of the National Highway Traffic Safety Administration (the
“NHTSA”). Those memoranda related to a petition filed with the
NHTSA in 1986 by Colorado Congressman Timothy Wirth, which asked
2
Smith argues that the district court did not refuse to
admit the article because of the different year models involved but
on other grounds. Regardless, this court may affirm a district
court’s evidentiary ruling on any grounds presented to the district
court. See Metallurgical Indus. Inc. v. Fourtek, Inc., 790 F.2d
1195, 1207 (5th Cir. 1986). Defendants-appellees squarely raised
the difference in year models as grounds for excluding the article.
3
that agency to establish stability standards for certain types of
passenger vehicles. This petition was based on the research of
Leon Robertson, who served as an expert for the plaintiffs in this
case. The NHTSA ultimately rejected the Wirth petition.
Nevertheless, plaintiffs sought to introduce the memoranda, in
which NHTSA staff members expressed opinions that support
Robertson’s methodology and the plaintiffs’ theory in this case.
The district court excluded these memoranda on hearsay
grounds. Smith argues on appeal that these memoranda satisfy
Federal Rule of Evidence 803(8), which excepts certain public
records from the general rule that hearsay is inadmissible. That
rule exempts:
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 (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.
Fed. R. Evid. 803(8). We conclude that the district court properly
concluded that the memoranda did not fall within the scope of this
exception.
Smith first argues that the memoranda qualify as public
records within the meaning of Rule 803(8)(A). We disagree.
Although NHTSA staff members prepared the memoranda in the course
of evaluating the Wirth petition, the memoranda do not “set forth”
the “activities of the agency” within the meaning of Rule
803(8)(A). See, e.g., United States v. Vidaure, 861 F.2d 1337,
1340-41 (5th Cir. 1988) (holding that copies of defendant’s
4
convictions contained in “pen packet” were admissible under public
records exception); Alexander v. Estepp, 95 F.3d 312, 314 (4th Cir.
1996) (holding that county’s registry of applicants for firefighter
position was a public record under Rule 803(8)(A)), cert. denied,
117 S. Ct. 1425 (1997); United States v. Ramirez,
45 F.3d 1096,
1101 (7th Cir. 1995) (holding that an automobile’s title history
was admissible under the public records exception).
Smith cites no case law in which Rule 803(8)(A) has been
applied to allow the admission of the preliminary or interim
evaluative opinions of agency staff members. Indeed, to apply Rule
803(8)(A) in the fashion Smith suggests would swallow whole Rule
803(8)(C) and its limitations. Rule 803(8)(C) provides a hearsay
exception for “factual findings resulting from an investigation
made pursuant to authority granted by law” unless those findings
lack trustworthiness. If memoranda reflecting the preliminary
opinions of agency staff members were admissible under Rule
803(8)(A), then Rule 803(8)(C)’s limitations would be meaningless.
We further conclude that the memoranda do not satisfy Rule
803(8)(C). The memoranda do not reflect “factual findings” of the
NHTSA. Rather, they embody the positions and opinions of
individual staff members, which the agency ultimately declined to
accept. Our conclusion is in accord with other circuits that have
held that interim agency reports or preliminary memoranda do not
satisfy Rule 803(8)(C)’s requirements. See Figures v. Board of
Pub. Util., 967 F.2d 357, 360 (10th Cir. 1992) (holding that a
draft of a proposed letter from an area director of a government
5
agency to a municipal administrative agency was properly excluded
because it did not represent an agency finding); United States v.
Gray, 852 F.2d 136, 139 (4th Cir. 1988) (holding that the district
court properly refused to admit a tentative internal IRS referral
report because it did not contain “agency factual findings”); City
of New York v. Pullman, Inc.,
662 F.2d 910 (2d Cir. 1981)(holding
that an interim recommendation by a transit authority staff member
to the transit authority administrator was not a factual finding of
an agency within the meaning of Rule 803(8)(C)); cf. United Air
Lines, Inc. v. Austin Travel Corp.,
867 F.2d 737, 743 (2d Cir.
1989) (concluding that the district court did not abuse its
discretion in excluding government reports that the district court
concluded were untrustworthy because of the “interim or
inconclusive nature of the reports . . . .”). The cases relied
upon by Smith are inapposite.
For these reasons, we conclude that the district court in this
case acted within its discretion in excluding the NHTSA internal
memoranda on hearsay grounds.
C.
Finally, Smith appeals from the district court’s refusal to
allow plaintiffs’ expert David Lowry to testify to the ultimate
issues of crashworthiness and unreasonable dangerousness.
We reject out of hand the plaintiffs’ complaint as to Lowry’s
crashworthiness opinion. The factual basis underlying Smith’s
crashworthiness theory was that Allen was ejected through the
6
Trooper’s windshield. The jury, however, specifically found that
Allen was not ejected through the windshield, and Smith does not
challenge that finding on appeal. Thus, the error, if any, in
excluding Lowry’s opinion on crashworthiness did not affect Smith’s
substantial rights.
As to the exclusion of Lowry’s opinion on unreasonable
dangerousness, the district court sustained Isuzu’s objection that
plaintiffs had failed to offer a sufficient foundation for his
testimony. Plaintiffs did not attempt to provide further
foundation for Lowry’s testimony at trial and do not provide any
argument on appeal as to why the foundation offered was sufficient.
Under these circumstances, we conclude that the district court did
not abuse its discretion in excluding his testimony as to the
ultimate issue of unreasonable dangerousness.
Moreover, even if the plaintiffs had offered a sufficient
foundation for Lowry’s opinion as to the ultimate issue of
unreasonable dangerousness, we find it unlikely that the absence of
that testimony affected the plaintiffs’ substantial rights. Lowry
was allowed to testify that the Trooper had a higher-than-average
center of gravity, a narrower-than-average track width, and that
these features made the vehicle more likely than other vehicles to
roll over. Additionally, plaintiffs’ expert Robertson was
permitted to testify that the Trooper was unreasonably dangerous
because of its tendency to roll over.3
3
Plaintiffs argue that the exclusion of Lowry’s testimony
was harmful because Robertson was a statistician, while Lowry was
an engineer. We are unpersuaded.
7
III.
For these reasons, the judgment of the district court is
AFFIRMED.
8
