Wert v. Mesesick, No. 1330-00 CnC (Katz, J., Apr. 7, 2005)

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STATE OF VERMONT                                        SUPERIOR COURT
Chittenden County, ss.:                              Docket No. 1330-00 CnC



WERT

v.

MESESICK



                                   ENTRY



        This personal injury matter was tried to a jury, with only a modest
verdict resulting. The central dispute at trial was over plaintiff’s claim to
have suffered traumatic brain injury. Were the jury persuaded by that
claim, the court would have expected a very significantly higher verdict
than in fact was given. Given this central contest of fact, the court infers
that the jury was not persuaded of the brain injury, and therefore
determined to treat the case as one involving only whiplash. So viewing
the verdict, it was not unreasonable on the evidence.

        Plaintiff next seeks a new trial on the ground that defense counsel
altered the medical record exhibit, by highlighting passages favorable to his
case. That alteration consisted of attaching eleven “yellow stickies” to the
margin of various pages within the looseleaf binder. Counsel was not
surreptitious about this act. He specifically stated in summation that he had
done so, and used the stickies to find his way around the thick exhibit
during that summation. After the jury commenced its deliberations, as in
all jury trials, both attorneys gathered together the exhibits, for delivery into
the jury room. That was the time to remove the highlighting stickies.
However, it was not done. Had plaintiff’s counsel then requested their
removal, the court would have directed it, over the objection of defense
counsel. But no request was made. We concede that the highlighting of
evidence within extensive documentation has the potential for unfair
prejudice. There is, however, no perfect trial. In the context of the entire
trial, we do not consider the presentation of the exhibit to the jury, with the
highlighting, to be either so prejudicial as to warrant a new trial or the
result of such egregious conduct by opposing counsel as to warrant
sanction, whether to counsel or his client.

       Plaintiff points our attention to Teubel v. Prime Development, Inc.,
641 N.W.2d 461 (Wis. App. 2001), as an example of the outcome of the
case being determined by counsel’s alteration of a document. That case,
however, involved counsel “whiting out” a portion of the exhibit, a denial
of culpability, a timely objection, and a thorough factual inquiry by the trial
court. The present case would have required no such factual inquiry, but
the balance of the considerations deemed pertinent by the Teubel court are
of a wholly different quality than what here obtains. We are not persuaded
that the highlighting by stickies, particularly in view of the extended period
of jury deliberation, was in the end prejudicial.

         The final point raised in seeking a new trial involves the court’s
refusal send a report by the government’s Center for Disease Control on
traumatic brain injury into the jury room. At trial, plaintiff proffered the
exhibit as a “government report” and claimed admissibility under Evidence
Rule 803(8). The court permitted plaintiff to use the exhibit throughout
trial, in examining witnesses and arguing to the jury, but refused admission
as an exhibit to be submitted to the jury room, on the ground that it was
better characterized as a learned treatise. V.R.E. 803(18).

     Let us start this discussion by reviewing the pertinent part of
Vermont’s Rule on Hearsay Exceptions for “Public records and reports”:

       (A) To the extent not otherwise provided in (B), records, reports,
       statements, or data compilations in any form of a public office or
       agency setting forth its regularly conducted and regularly recorded
       activities, or matters observed pursuant to duty imposed by law
       and as to which there was a duty to report, or factual findings
       resulting from an investigation made pursuant to authority granted
       by law.

       (B) The following are not within this exception to the hearsay rule
       . . . (iv) any matter as to which the sources of information or other
       circumstances indicate a lack of trustworthiness.

The Vermont Rule is based on the Federal equivalent with the exception
that it condenses down the Federal Rule, which is broken into three
subsections. In substance, however, the Vermont and Federal Rules track
quite closely. Compare V.R.E. 803(8), with 30B M. Graham, Federal
Practice & Procedure § 7049, at 461, 471 (2000) (printing the text of F.R.E.
803(8), reporter’s notes, congressional hearings, and discussing the
structure and composition of the rule).

       Under Vermont’s Rule 803(8), there are three categories of “public
records.” The first, what is labeled 803(8)(A) in the Federal Rule, deals
with the more obvious types of government records from the activities of
the office. This include statistical reports, weather readings, treasury
receipts, census data, maps, and other documents kept in a “ministerial
fashion pursuant to legal authority. See, e.g., Eastern Air Lines, Inc. v.
McDonnel Douglas Corp., 532 F.2d 957, 983 n.79 (5th Cir. 1976); 30B
Graham, supra, at 479 n.12 (citing United States v. Stone, 604 F.2d 922,
925 (5th Cir. 1979). The second category, 803(8)(B) covers matter
observed pursuant to a legal duty where there was a duty to report. Here
we are talking about police observations at the scene of the crime, warrants,
fingerprint cards, autopsy reports, drug analysis, and other records of a
specific investigation that are not routine or ministerial. See, e.g.,
Manocchio v. Moran, 919 F.2d 770, 777 (1st Cir. 1990); 30B Graham,
supra, at 483–86.

       The third category, and the one relevant to this case, is 803(8)(C),
factual findings. Under this category, courts have recognized that the range
of admissible public records may extend into the area of the medical reports
and studies. E.g. Givens v. Lederle, 556 F.2d 1341 (5th Cir. 1977) (Annual
Poleomyelitis Summary of Center for Disease Control admitted to show
existence of the vaccine-induced polio cases); Ellis v. Int’l Playtex, Inc.,
745 F.2d 292, 301–03 (4th Cir. 1984) (CDC epidemiological studies of
toxic shock syndrome). Just how expansive this can be is not apparent
from the language of Rule 803, and initially courts varied on its
interpretation. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161–62
(1988). In Beech Aircraft, however, the Supreme Court endorsed the
expansive interpretation of the term and essentially adopted the position of
advocating a willingness to recognize “evaluative reports” and the ilk that
had been taken by the Senate Committee reviewing the federal rule. Id.; cf.
3 M. Graham, Handbook of Federal Evidence §803.8, at 431 (discussing
the House Committee’s more narrow interpretation).

        In this respect, we cannot say that the plaintiff’s proffered report
does not fit the technical definition of a factual finding under Rule 803(8).
Yet here, as at trial, we note that the purpose that plaintiff sought to use the
CDC report is more in line with the exception for a learned treatise. Rule
803(8) does not require that the evidence be used in a specific manner, but
its applicability is premised on four bases that underlie the exception.
Compare F. Bennett, Federal Rule of Evidence 803(8): the Use of Public
Records in Civil and Criminal Cases, 21 Am. J. Trial Advoc. 229, 231
(1997), with 30B M. Graham, supra, at 473. First, the Rule assumes the
records are made and kept by public officials who will perform their duties
diligently and truthfully and lack any motive to falsify the information.
Bennett, supra, at 231. Second, as public documents, it is also likely that
public inspection will disclose inaccuracies. 30B Graham, supra, at 473.
Third, like businesses, governments process large amounts of paper and
information, making a document more reliable than an official’s memory.
Id.; Bennett, supra, at 231. Fourth, it is a waste to bring government
officials into court to testify about matters that have already been accurately
reported. 30B Graham, supra, at 473; Bennett, supra, at 231.

        It is easy to understand how the first two categories of 803(8) reports
satisfy and support these purposes. Reports either ministerial or generated
for an investigation are made by officials without a stake in the outcome.
They usually record data that they either observe or collect in a routine
manner. As to the latter two concerns of Rule 803(8), it is easy to see how
submitting a marriage license would be superior to having a town clerk
come and testify as proof whenever a party needed it. Factual findings, on
the other hand, lend themselves less to these rationales. First the
information in them are generated through research and compilation, rather
than through first-hand observations or ministerial methods. Second, since
the authors of reports, such as plaintiff’s, are experts in their field, their
connection to the report is far more personal and immediate than either a
disinterested official recording in a ministerial capacity or an officer
conducting a routine investigation. Finally, unlike the other two categories,
medical reports involve more than just facts. As in plaintiff’s case, the
reports collect data, analyze it, hypothesize, and draw conclusions. While
these are all valid functions of a public report, each one moves the report
away from being a mere record and more toward an educational tool or in
other words, a learned treatise on the subject.

        Learned treatises are also allowed into evidence under Rule 803(18)
to examine or impeach expert witnesses. Such documents include
“information from medical journal articles, a published letter to the editor
of a scientific journal, safety codes, an article from a trade magazine, a
pamphlet published by the American Heart Association,” and most
importantly to the present case “a safety report prepared for use by a
governmental agency.” C. Walsh & B. Rose, Increasing the Useful
Information Provided by Experts in the Courtroom: a Comparison of
Federal Rules of Evidence 703 and 803(18) with the Evidence Rules in
Illinois, Ohio, and New York, 26 Seton Hall L. Rev. 183, 224 (1995)
(citing to relevant case law). Unlike public records, however, the treatise
once admitted may only be read into evidence and may not be received by
the jury as an exhibit. V.R.E. 803(18). This proscription on use has
nothing to do with the treatise’s trustworthiness, reliability, or bias. C.
Walsh & B. Rose, supra, at 219–20. Rather it is intended to prevent a jury
from giving a written treatise undue weight in the jury room and to prevent
jurors from using a professional text without the benefit of an expert
witness to explain its meaning. Id. In this way, the Rule allows a jury to
hear the sources that expert witness used to form her opinion or that she
should have used to form her opinion. Yet, they are also safeguarded from
letting that particular piece of evidence from carrying too much weight.

       In this respect, Rule 803(18) is one of the more narrow exceptions to
hearsay. While any treatise dubbed learned by the court would satisfy the
technical definition of the Rule, its purpose is more specifically for sources
used to impeach or bolster expert witnesses. Thus a learned treatise that is
used only to establish a theory of causation and is not used in association
with expert testimony, might be better handled under another provision.
E.g., Ellis, 745 F.2d at 301–03 (allowing a government report to establish
causation in lieu of expert testimony). Conversely, this Rule is best suited
for a document that fits the definition of Rule 803(18) and is used for its
intended purpose. Commentators have even noted that Rule 803(18)
should “operate in tandem with Rules 702 and 703,” the rules for expert
witness testimony. C. Walsh & B. Rose, supra, at 231–32 (citing Stephen
A. Saltzburg et al., Federal Rules of Evidence Manual 1433 (6th ed. 1994));
see also See generally Edward J. Imwinkelried, A Comparativist Critique
Of The Interface Between Hearsay And Expert Opinion In American
Evidence Law, 33 B.C. L. Rev. 1, 19–35 (1991).

        In this case, the court was and is now faced with a dilemma. The
plaintiff’s proffered testimony qualifies under the technical requirements of
both Rule 803(8) and 803(18). We note that the question is not whether
plaintiff’s report should have been admitted into evidence. It was under
Rul3 803(18). The question is whether it should have been sent to the jury
room. Plaintiff complains that the court’s failure to do so biased his case
because the jury was unable to reference the evidence during their
deliberations.

        At trial, plaintiff proffered the CDC report as a way of bolstering his
own expert witness’s definition of mild traumatic brain injury and as a way
of impeaching the defense’s expert. This use of the report strikes us as a
clear 803(18) use. The report was a trustworthy government document
researching a medical area and reporting its results with a certain authority.
Its use was not to stand in the place of expert testimony or to establish some
fact outside of that testimony but to support or attack the range of expert
testimony. In this light we see it as the better part of discretion to look at
the evidence not only for its technical description but for its actual function
and purpose for which it is admitted. In this respect, we conclude that it wa
properly admitted into evidence as an 803(18) learned treatise and was
properly kept from the jury room during deliberations.

        Finally, admission under Rule 803(18) gave the plaintiff a wide
variety of options to put the evidence in front of the jury. See, e.g., .
Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1228-29 (5th
Cir. 1984) (party permitted to show photographic enlargements of safety
code). Plaintiff could have put relevant sections of the report on a
blackboard in front of the jury, on an overhead, incorporated it into his
closing arguments, introduced charts and graphs to show the jury, or read
the relevant sections into evidence. C. Walsh & B. Rose, supra, at 221–22,
n. 185, 227–28. Far from being limited, plaintiff had an entire range of
possible ways to emphasize the importance of the CDC report to the jury.
Simply, because he chose not to utilize these methods does not mean that
the documents post-hoc importance should create an error. We do not see
where the absence of the CDC report from the jury room created any gap in
evidence that the plaintiff could not have overcome by a more forceful
presentation of the CDC report during trial. As a result, even if the CDC
report would have qualified under Rule 803(8), its absence from the jury
room did not create a reversible error.
       Based on the foregoing, plaintiff’s motion for a new trial is denied.



      Dated at Burlington, Vermont________________, 2005.



                                         ________________________
                                         Judge
