Admissibility of Governmental Studies to Prove Causation
| Publication year | 1982 |
| Pages | 1822 |
| Citation | Vol. 11 No. 7 Pg. 1822 |
1982, July, Pg. 1822. Admissibility of Governmental Studies to Prove Causation
The case of Lampshire v. The Procter & Gamble Company,(fn1) tried this past March in United States District Court for the District of Colorado, is noteworthy for many reasons. It was the first Toxic Shock Syndrome case involving Rely Tampons and Procter & Gamble in the country to go to trial. It was the first case in which a jury found that Rely Tampons cause Toxic Shock Syndrome and that Procter and Gamble was liable therefor under theories of negligence and strict liability. It was also a case where the oddity of the jury's verdict, finding that the plaintiff had proven her case in negligence and strict liability but awarding no damages, may be remembered beyond all else. Yet in terms of legal precedent, Lampshire will be cited for one thing more. In Lampshire, for the first time anywhere, governmental studies were admitted into evidence pursuant to the public records and reports exception to the hearsay rule to prove causation.(fn4)
Specifically, the Lampshire court held that seven governmental epidemiological studies conducted by the Centers for Disease Control and certain state health departments(fn3) finding a significant statistical association between tampon use and Toxic Shock Syndrome were admissible as being probative of causation. Thus, any time a governmental study links a product with an illness or an injury, Lampshire stands as precedent for the admissibility of that study to prove causation.(fn4)
In Colorado the public records and reports exception is identical in substance and virtually identical in form to the federal rule.(fn5) Accordingly, it can be expected that there will be many instances where a party will seek to introduce governmental studies to prove causation in both state and federal court. The purpose of this article, therefore, is to highlight problems which may arise in seeking to introduce governmental studies and to illustrate ways in which such problems can be overcome.
The public records and reports exception to the hearsay rule, as contained in Rule 803(8) of the Federal Rules of Evidence ("F.R.E."), reads as follows:
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.(fn6)
There are three primary issues which can arise in the context of the public records and reports exception:
1) for purposes of subsections (B) and (C), whether matters were actually observed---i.e., whether there was firsthand knowledge;
2) for purposes of subsection (C), whether the findings resulting from an investigation are "factual findings"; and
3) for purposes of Rule 803(8) generally, whether "the sources of information or other circumstances indicate lack of trustworthiness."(fn7)
At present there is no case law interpreting Rule 803(8) as contained in the Colorado Rules of Evidence ("C.R.E."),(fn8) so the following discussion derives from an analysis of issues arising under the federal rule and from federal case law interpreting the federal rule. However, the discussion should be relevant to both Colorado state and federal courts in view of the substantial similarity between the two rules.
Rule 803(8)(B) specifically requires that matters be observed before they will be admissible under the public records and reports exception to the hearsay rule. Arguably, Rule 803(8)(C) has the same requirement of firsthand knowledge by way of the term "factual findings." The general requirement contained in F.R.E. and C.R.E. Rule 602 also provides in part that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter."
The requirement of firsthand knowledge would seem to be a simple one to fulfill in order to have governmental studies admitted into evidence. It can be assumed that the authors of a particular study took part in designing its protocol, interviewing witnesses, case samples and controls, analyzing records and reports, and interpreting data gathered. Yet in most instances, governmental studies will be based on multiple layers of hearsay of which their authors will have no personal knowledge.
To illustrate, in any case where a study has linked a product with an illness, it will likely contain the incidence rate of the illness, the characteristics of those contracting the illness and a listing of what those contracting the illness have and do not have in common. To compile such information, those conducting the studies first have to determine who had the illness; that is, who would meet an epidemiological case definition of the illness. This would entail analyzing medical records and reports which were not compiled by those conducting the study and which, in fact, resulted from the hearsay statements of numerous people, including doctors, nurses, laboratory technicians, the patient and the patient's family.
As was the result in Lampshire, resolution of this issue should be in favor of finding firsthand knowledge. The studies represent and describe the activities of the authors and their personal knowledge of study design and of information gathered. An argument that the studies do not encompass "matters observed" because analysis is made of multiple layers of hearsay is in actuality an argument directed to whether the sources of information indicate lack of trustworthiness and should be analyzed in that context. This conclusion is in line with case law holding that original research of hearsay material is admissible(fn9) and that, in a similar situation decided under Rule
The next question is whether the firsthand knowledge requirement is applicable to Rule 803(8)(C). Subsection (C), unlike subsection (B), has no express element of firsthand knowledge. If there is such an element, it must derive from the term "factual findings" contained therein or from Rule 602 which requires that witnesses have personal knowledge. For the most part, case law has held that the term "factual findings" does not contain an element of personal knowledge and, instead, represents the distinction between subsections (C) and (B).(fn11) The underlying rationale for not requiring firsthand knowledge is based on the assumption that a public official "will exercise his judgment and give appropriate weight to various types of evidence relied upon by the government."(fn12) Again, case law indicates that attempting to include a firsthand knowledge requirement for Rule 803(8)(C) is to attempt to consider the issue of trustworthiness in an inappropriate context.(fn13)
Rule 602 has no applicability to Rule 803(8)(C). Rule 602 deals only with the testimony of witnesses and not hearsay statements. Logically, it would be of no authority where a party is seeking to admit a governmental study under an exception to the hearsay rule, where the whole purpose of exceptions to the hearsay rule is to allow into evidence matters not within a person's personal knowledge. In addition, expressly exempted from the scope of Rule 602 are the provisions of Rule 703 which allow an expert to testify as to his opinion based upon matters not within his personal knowledge. Governmental studies within the purview of Rule 803(8)(C) are in the nature of expert witness reports. Therefore, Rule 602 has no bearing on Rule 803(8)(C), unless it is to be used in a manner inconsistent with its expressed terms.(fn14)
The real issue that arises in attempting to delineate the boundaries of the term "factual findings" as contained in Rule 803(8)(C) is whether this term includes governmental studies which are evaluative, opinion oriented and conclusory in nature and which recite more than indisputable facts and statistics. The House Report in this regard states that "[t]he Committee intends that the phrase 'factual findings' be strictly constructed and that evaluations or opinions...
To continue reading
Request your trial