303 Md. 581 (1985) 495 A.2d 348

ELIZABETH HORTON ELLSWORTH
v.
SHERNE LINGERIE, INC., ET AL.

No. 130, September Term, 1984.

Court of Appeals of Maryland.

July 12, 1985.

John A. King, Rockville, for appellant.

Samuel J. DeBlasis, II, Upper Marlboro (O'Malley, Miles, McCarthy & Harrell, Upper Marlboro, on the brief), for appellee, Sherne Lingerie, Inc.

William M. Nickerson, Baltimore (Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief), for appellee, Cone Mills Corp.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired, Specially Assigned).

McAULIFFE, Judge.

This products liability case presents two issues for review. The first involves instructions given on the subject of product misuse in a claim of strict liability in tort. The second involves the admissibility of reports offered as public records, or as material customarily relied upon by experts in the field in forming the basis of an opinion.

On February 25, 1980 Elizabeth Horton Ellsworth was severely burned when the flannelette nightgown she was wearing ignited as a result of its proximity to a front burner of her electric stove. By her original and amended declarations the plaintiff sued the seller of the nightgown, Sherne Lingerie, Inc. (Sherne) and the manufacturer of the textile from which the nightgown was made, Cone Mills Corporation (Cone Mills). The plaintiff advanced three principal theories of liability and sought punitive as well as compensatory damages. First, she alleged that Sherne and Cone Mills were negligent in failing to treat the nightgown so as to make it flame-resistant, and in failing to adequately warn consumers of the dangerous and flammable nature of the garment. Next, she alleged under the theory of strict liability in tort that both defendants had placed a defective and unreasonably dangerous garment into the stream of commerce, and that they had failed to give warnings of the risks or hazards associated with the garment. Finally, she sought recovery from Sherne on the ground that it had breached its implied warranty that the nightgown was fit for ordinary purposes.

At trial, the following facts were established. On the morning of February 25, 1980 plaintiff wore a lady's nightgown into the kitchen to make coffee. She admitted that she was wearing the nightgown inside out and as a result the two pockets at the sides were flapping or protruding. The loosely fitting flannelette nightgown was made of a blend of 87 1/2% cotton and 12 1/2% polyester. The fabric had been manufactured and sold by Cone Mills, and the nightgown had been designed, manufactured and placed in the stream of commerce by Sherne.

In the kitchen, the plaintiff placed a tea kettle on the left front small burner of the electric range and turned the burner on "high." The kettle only partially covered the burner and approximately 1/16 to 1/2 inch of the burner's perimeter was exposed. The plaintiff reached above the stove to obtain a coffee filter from one of the cupboards, and as she was reaching her gown came very close to or in contact with the exposed portion of the burner. The evidence permitted but did not compel a finding that the ignition source was the left pocket. As a result of the burns, the plaintiff suffered severe and permanent injuries.

Cone Mills sold the fabric for the nightgown to Sherne in 1977, and included in the shipping invoice the following warning:

This fabric is not intended for use in children's sleepwear or robes in sizes 14 and under. Flammable. Does not meet standards for flammability in children's sleepwear, FF5-74 and U.S. Department of Commerce Standard BOCFF3-71. Should not be worn near source of fire.

The language in the invoice was understood by Sherne to be a warning but Sherne made no attempt to convey the warning to consumers. Sherne offered testimony that no other American sleepwear manufacturer passed on any warning to the consumer.

Both defendants conceded it was foreseeable that the nightgown would be worn in a kitchen, and a defense expert conceded the likelihood it would be worn in close proximity to an electric range. Defense experts contended, however, that the fabric was safe for use in adult sleepwear, and that the fabric of the nightgown as well as the finished garment complied with the Federal standard for flammability of clothing textiles.^[1] Plaintiff's expert testified that the flammability characteristics of the nightgown caused it to be defective and unreasonably dangerous, and that the Federal flammability standard was inadequate for the protection of consumers in the light of information available at the time the nightgown was marketed.

At the close of the plaintiff's case the trial judge granted the defendants' motions for directed verdict on the punitive damage counts, and at the conclusion of the case the jury rendered a general verdict in favor of the defendants on the remaining counts. On appeal the Court of Special Appeals affirmed the lower court. Ellsworth v. Sherne Lingerie, Inc., 60 Md. App. 104, 481 A.2d 250 (1984). We granted plaintiff's petition for certiorari to consider the following questions: (1) Whether the trial judge's instructions on misuse of the product and the trial judge's refusal to instruct that contributory negligence is not a defense to strict liability in tort constitute reversible error; and (2) whether annual reports to the President and the Congress required by the Flammable Fabrics Act and prepared by the Secretary of Health, Education and Welfare and the Consumer Product Safety Commission fall within the "public records" exception to the hearsay rule, or are otherwise admissible as reports regularly relied upon by experts in the field.

I

Misuse of Product

Appellant claims reversible error because the trial court gave an instruction on misuse of product as a possible defense to the strict liability claim. At trial, Judge Miller gave the following instruction to the jury:

With respect to strict liability, i[n] order for you to find in favor of the plaintiffs, you must find by a preponderance of the evidence that the defendants manufactured a defective product which was unreasonably dangerous to the consumer and that the defect was the proximate cause of plaintiff's injuries. And that the defendant has not shown by a preponderance of the evidence that the plaintiff misused the product. So in the strict liability theory, it is for the plaintiff to show by a preponderance of the evidence that the defendants manufactured a defective product, which was unreasonably dangerous and that the defect was a proximate cause of the plaintiff's injuries.

On the other hand, it would be for the defendant, if they established — if the plaintiff established what I just mentioned, it would be the burden of the defendant to show that the defendant misused the product.

* * * * * *

On a strict liability theory, you must find by a preponderance of the evidence that the defendant manufactured a defective product, which was unreasonably dangerous to the consumer and that the defect proximately caused the plaintiff's injuries. That is the burden of the plaintiff.

The burden is then upon the defendant to show that the plaintiff misused that product. So if the plaintiff meets her burden of [showing] the strict liability theory, you then look as to whether the defendant might have shown a misuse of the product.

Appellant argues that the "evidence adduced at trial may be consistent with momentary inattention or carelessness on the part of Appellant, but is inconsistent with affirmative misconduct or use of the nightgown for an abnormal purpose." Both defendants contend there was no error in the jury instruction on misuse. Sherne claims that "the trial court and the Court of Special Appeals found evidence in the record that the manner in which [plaintiff] used her nightgown may not have been a manner foreseeable by the manufacturer and therefore the misuse instruction to the jury was warranted." Similarly, Cone Mills argues that misuse of the nightgown by the plaintiff became a jury issue based on evidence of the plaintiff's use of the gown "in effect draping it over a hot burner for an appreciable period of time, [which] cannot seriously be considered a reasonably foreseeable manner of use."

This Court, in Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976) first applied the doctrine of strict liability in tort as expressed in the Restatement (Second) of Torts § 402 A.^[2] Under § 402 A, the seller will be liable if the product is in a "defective condition", that is in a condition not contemplated by the ultimate consumer, and "unreasonably dangerous", that is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with ordinary knowledge common to the community as to its characteristics. Id. at 344, 363 A.2d 955. In Phipps, we noted:

Under § 402 A, various defenses are still available to the seller in an action based on strict liability in tort. These defenses are set forth and explained in the official comments following § 402 A. For example, the seller is not liable where injury results from abnormal handling or use of the product (Comment h), where mishandling or alteration after delivery of the product renders it unsafe (Comment g), or if warnings or instructions supplied with the product are disregarded by the consumer where, if used in accordance with these warnings, the product would be safe (Comment j). Id. at 346, 363 A.2d 955.^[3]

Comment h to § 402 A provides a basis for the "misuse" defense. It states:

A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap; or from abnormal preparation for use, as where too much salt is added to food; or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable.

Most jurisdictions have adopted the Restatement view that misuse or abnormal use is a factor in a strict liability action.^[4]

The courts, however, are split on the question of whether the issue of misuse properly arises as a part of a plaintiff's case, or is an affirmative defense. Some courts have referred to misuse as an affirmative defense or part of the defendant's burden of proof. Davidson v. Stanadyne, Inc., 718 F.2d 1334 (5th Cir.1983) (applying the law of Texas); Beacham v. Lee-Norse, 714 F.2d 1010 (10th Cir.1983) (applying the law of Utah); Wood v. Stihl, Inc., 705 F.2d 1101 (9th Cir.1983) (applying the law of Washington); Noel v. S.S. Kresge Co., 669 F.2d 1150 (6th Cir.1982) (applying the law of Ohio); Harville v. Anchor-Wate Co., 663 F.2d 598 (5th Cir.1981) (applying the law of Texas); Hammond v. McDonough Power Equipment, Inc., 436 So.2d 842 (Ala. 1983); Nelson v. Caterpillar Tractor Co., 694 P.2d 867 (Colo.Ct.App. 1984); Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo.Ct.App. 1984); Matthews v. F.M.C. Corp., 190 Conn. 700, 462 A.2d 376 (1983); Gangi v. Sears, Roebuck & Co., 33 Conn.Sup. 81, 360 A.2d 907 (1976); Reeser v. Boats Unlimited, Inc., 432 So.2d 1346 (Fla.App. 1983); McBride v. Ford Motor Co., 105 Idaho 753, 673 P.2d 55 (1983); Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25 (1979); Marchese v. Warner Communications, Inc., 100 N.M. 313, 670 P.2d 113 (1983); Messler v. Simmons Gun Specialties, Inc., 687 P.2d 121 (Okl. 1984); Kirkland v. General Motors Corp., 521 P.2d 1353 (Okl. 1974); Allen v. Heil Co., 285 Or. 109, 589 P.2d 1120 (1979); Norman v. Fisher Marine Inc., 672 S.W.2d 414 (Tenn. App. 1984); General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex. 1977); Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981); Smith v. Sturm, Ruger & Co., Inc., 39 Wash. App. 740, 695 P.2d 600 (1985); Jackson v. Standard Oil Co. of California, 8 Wash. App. 83, 505 P.2d 139 (1972).

The recent trend in a number of courts has been to consider the question of misuse as a part of the plaintiff's case, and as being directly related to the issues of defectiveness, or of proximate cause, or both. Schwartz v. American Honda Co., Inc., 710 F.2d 378 (7th Cir.1983) (applying the law of Illinois); McGowne v. Challenge-Cook Bros., Inc., 672 F.2d 652, 661 n. 2 (8th Cir.1982) (applying the law of Missouri); Amburgery v. Holan Division of Ohio Brass Co., 124 Ariz. 531, 606 P.2d 21, 22 (1980); Illinois State Trust Co. v. Walker Mfg. Co., 73 Ill. App.3d 585, 29 Ill.Dec. 513, 392 N.E.2d 70, 73 (1979); Henkel v. R. and S. Bottling Co., 323 N.W.2d 185, 191 (Iowa 1982); Hughes v. Magic Chef, Inc., 288 N.W.2d 542, 546 (Iowa 1980); Early-Gray, Inc. v. Walters, 294 So.2d 181, 186 (Miss. 1974); Rogers v. Toro Mfg. Co., 522 S.W.2d 632, 637 (Mo. App. 1975); Olson v. A.W. Chesterton Co., 256 N.W.2d 530, 535 (N.D. 1977). Commentators have agreed. See L. Frumer & M. Friedman, Products Liability § 15.01 (1984); J. Dooley, Modern Tort Law § 32.79 (1983 & Cum.Supp. 1984); Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand.L.Rev. 93, 96 (1972).

Other courts have referred to the "defense" of misuse without specifying whether it is an affirmative defense, or evidence that tends to negate the plaintiff's case. See for example Young v. Up-Right Scaffolds, Inc., 637 F.2d 810 (D.C. Cir.1980).

The problem of understanding the issue of misuse in strict liability cases is further compounded by the absence of agreement as to the meaning of the word. Misuse has been defined as: a use not reasonably foreseeable, Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 725 (D.C. 1985); Ford Motor Company v. Matthews, 291 So.2d 169, 174 (Miss. 1974); a use of the product in a manner which defendant could not reasonably foresee, McGowne v. Challenge-Cook Bros., Inc., 672 F.2d 652, 661 (8th Cir.1982); Hughes v. Magic Chef, Inc., 288 N.W.2d 542, 545 (Iowa 1980); a use of a product where it is handled in a way which the manufacturer could not have reasonably foreseen or expected in the normal and intended use of the product and the plaintiff could foresee an injury as the result of the unintended use, Harville v. Anchor-Wate Co., 663 F.2d 598, 602-03 (1981) (applying the law of Texas); General Motors Corp. v. Hopkins, 548 S.W.2d 344, 348-52 (Tex. 1977); a use or handling so unusual that the average consumer could not reasonably expect the product to be designed and manufactured to withstand it — a use which the seller, therefore, need not anticipate and provide for, Findlay v. Copeland Lumber Co., 265 Or. 300, 509 P.2d 28, 31 (1973); use of the product which constitutes wilful or reckless misconduct or an invitation of injury, Gangi v. Sears, Roebuck & Co., 33 Conn.Sup. 81, 360 A.2d 907, 909 (1976). The Fifth Circuit, in Jones v. Menard, 559 F.2d 1282, 1285 n. 4 (5th Cir.1977) (applying the law of Louisiana), defined misuse in the context of the three types of products cases. That court said,

[i]n inadequate warning cases misuse means that the seller had no duty to warn against unforeseeable uses of its products, while in design cases misuse means that the manufacturer had no duty to design a product so as to prevent injuries arising from unforeseeable uses of that product.... In defective manufacture cases, however, misuse means that the injury was not caused by some inherent defect in the product but by the consumer's abnormal use of it....^[5]

It has been suggested that misuse means any use not intended by the manufacturer, but this is too narrow and fails to take into account a variety of uses reasonably foreseeable although not subjectively intended. It has also been suggested that virtually anything is possible, and thus arguably foreseeable, so that foreseeability as a test is too broad.

We conclude, as have most courts which have considered the issue, that "reasonable foreseeability" is the appropriate test, and thus a seller is required to provide a product that is not unreasonably dangerous when used for a purpose and in a manner that is reasonably foreseeable.^[6] If a product is unreasonably dangerous for such use it is "defective" within the meaning of § 402 A of the Restatement, and if that defect is a cause of damage the seller will be responsible. On the other hand, if the product is not unreasonably dangerous when used for a purpose and in a manner that is reasonably foreseeable, it simply is not defective, and the seller will not be liable.^[7]

Misuse of a product may also bar recovery where the misuse is the sole proximate cause of damage, or where it is the intervening or superseding cause.^[8] For example, a high speed electric drill may be defective because a manufacturing defect causes it to short circuit and produce a shock during normal usage. A plaintiff who attaches a brush to that drill and in attempting to clean his teeth suffers injury to his mouth from the high speed of the brush will lose because his misuse is the sole cause of his misfortune, and the defect in the drill is not in any way related to the harm.^[9]

Misuse may also embrace the concept of mishandling. As Comment g of § 402 A states "the seller is not liable when he delivers the product in a safe condition, and subsequent mishandling ... make[s] it harmful by the time it is consumed." The burden of proof is upon the plaintiff to show that the product was in a defective condition when it left the hands of the seller.

From what we have said it is apparent that questions of misuse of the product are involved in the determination of whether the product was defective, and whether a defect was the proximate cause of the injury. Because defectiveness and causation are elements which must be proved by the plaintiff, we conclude that misuse is not an affirmative defense. Misuse, therefore, is a "defense" only in the sense that proof of misuse negates one or more essential elements of a plaintiff's case, and may thereby defeat recovery.

In contrast, "assumption of risk" is an affirmative defense, and where properly raised by the pleadings,^[10] may be an issue in a strict liability case. As the Court of Special Appeals stated in Sheehan v. Anthony Pools, 50 Md. App. 614, 626 n. 11, 440 A.2d 1085 (1982), aff'd, 295 Md. 285, 455 A.2d 434 (1983) (Part III adopted in full), "The three subjective elements that the defendant must show are: 1) the plaintiff actually knew and appreciated the particular risk or danger created by the defect; 2) the plaintiff voluntarily encountered the risk while realizing the danger; and 3) the plaintiff's decision to encounter the known risk was unreasonable."^[11] To conclude our general discussion of "defenses" we repeat our earlier holding that contributory negligence is not a defense in an action of strict liability in tort. Anthony Pools v. Sheehan, supra, 295 Md. at 299, 455 A.2d 434. Conduct which operates to defeat recovery may in fact be negligent, but confusion will be avoided if it is remembered that a plaintiff is barred only because such conduct constitutes misuse or assumption of risk, and not because it constitutes contributory negligence.^[12]

Applying these principles to the facts of this case, we conclude the evidence was insufficient to generate an issue of misuse, and that the trial judge erred in allowing the jury to consider misuse of the product as a possible bar to recovery. Clearly, and concededly, Appellant was using the nightgown for a reasonably foreseeable purpose. We conclude that her manner of use of the nightgown, though possibly careless, was reasonably foreseeable as a matter of law. It certainly may be foreseen that wearing apparel, such as nightgowns and robes, will occasionally be worn inside out. It is also foreseeable that a loosely fitting gown will come into contact with sources of ignition in the environment where it may be expected to be worn, and particularly when worn in the kitchen and near a stove. Momentary inattention or carelessness on the part of the user, while it may constitute contributory negligence, does not add up to misuse of the product under these circumstances.

Plaintiff also alleges error because the trial court refused to instruct the jury that contributory negligence is not a defense to a strict liability action. A plaintiff in a products liability case may plead alternative causes of action, and if the plaintiff alleges negligence in addition to strict liability, a defendant may be entitled to instructions on contributory negligence, assumption of risk, and misuse. A jury could easily misapply a contributory negligence defense to a strict liability action^[13] and care must be taken to explain the law applicable to each cause of action.

In Sheehan v. Anthony Pools, supra, 50 Md. App. at 623, 440 A.2d 1085, the Court of Special Appeals noted that jury instructions were silent as to the manner in which an injured plaintiff had used a diving board. The court said that "there is substance to the [plaintiff's] claim that the jury was left without guidance on a point of critical importance, i.e., the type of conduct on the part of the consumer in the use of the product which could or could not afford a valid defense to the seller...." Id. The court concluded "an instruction should have been granted that [the plaintiff's] inadvertent or careless use of the [product] would not bar his recovery." Id. at 626, 440 A.2d 1085.

When theories of negligence and strict liability in tort are being presented to a jury, and the defense of contributory negligence is properly before the jury, a trial judge may well find it helpful to specifically instruct the jury that contributory negligence is not a defense to the strict liability action. In some cases, however, where the same conduct may conceivably constitute both contributory negligence and misuse of a product, a negative instruction may not be the best approach, and the trial judge may find that a careful explanation of each cause of action and any defenses applicable thereto is preferable. We therefore decline to adopt a per se rule relating to the granting of a negative instruction where both causes of action are present,^[14] preferring instead the flexible approach of Md. Rule 2-520(c):

The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

II

Evidentiary Rulings

We turn to a consideration of evidentiary questions that are likely to recur upon retrial. These questions involve five separate reports required by the Flammable Fabrics Act to be made to the President and the Congress by government officials.^[15] We shall treat separately three issues bearing on the admissibility of these reports or parts thereof: relevance, admissibility to demonstrate the basis of an expert's opinion, and admissibility pursuant to a public records exception to the hearsay rule.

A

Relevance

Relevance has been defined in McCormick on Evidence § 185, at 541 (E. Cleary 3d ed. 1984) as follows:

There are two components to relevant evidence: materiality and probative value. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial. What is "in issue," that is, within the range of the litigated controversy, is determined mainly by the pleadings, read in the light of the rules of pleading and controlled by the substantive law.

* * * * * *

The second aspect of relevance is probative value, the tendency of evidence to establish the proposition that it is offered to prove.

Under any theory advanced by appellant she was obliged to show that the nightgown was unreasonably dangerous to a prospective user when it was sold. Proof that the product was unreasonably dangerous is clearly required in an action based upon strict liability in tort, and it is no less important when the plaintiff is attempting to prove negligence in the design or sale of the product, or attempting to prove the negligent failure to include an adequate warning or instruction. Her burden was made more difficult by the fact that the material of this nightgown met and exceeded the requirements of the Federal standard for flammability of clothing textiles.^[16] Appellant sought to introduce evidence of the incidence and severity of burns caused by ignition of clothing that was subject to the Federal standard in order to overcome the inference that clothing which complied with that standard was not unreasonably dangerous.

Compliance with a statutory standard is evidence of due care, but compliance with the standard does not preclude a finding of negligence for failure to take additional precautions. See W. Prosser & W. Keeton, The Law of Torts § 36 (5th ed. 1984). Similarly, in a strict liability case proof that a product complied with a statutory standard does not preclude a finding of defectiveness. See J. Dooley, Modern Tort Law § 32.54 (1983 & 1984 Cum.Supp.). See also Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727 (Minn. 1980), cert. denied, 449 U.S. 921, 101 S.Ct. 320, 66 L.Ed.2d 149 (1980) (affirming an award for punitive damages despite evidence of compliance with the Flammable Fabrics Act).^[17]

The reports are material to the issues and tend to establish the proposition that the nightgown as sold was unreasonably dangerous to prospective users, and therefore the reports should not have been excluded on grounds of relevance.

B

Basis of Expert's Opinion

In addition to offering the reports as substantive evidence (see Part II C, infra) appellant also offered testimony concerning the contents of the reports to explain the basis of her expert's opinion. Dr. Stephen Spivak, a professor in the Department of Textile and Consumer Economics at the University of Maryland, testified that the nightgown was defective and unreasonably dangerous due to its flammability characteristics, and that the 1953 Federal standard was inadequate for the protection of consumers. In attempting to explain the basis of his opinions, Dr. Spivak sought to utilize data taken from the reports. He testified concerning the statutory mandate for the preparation of the reports and that the data contained within the reports was recognized as reliable and was in fact relied upon by him and by other experts in the field. The trial judge ruled that testimony concerning the data contained in the reports was inadmissible as hearsay.

The proffered evidence was indeed hearsay, but was admissible for the limited purpose of explaining the basis for the expert's opinion. In Attorney Grievance Comm'n v. Nothstein, 300 Md. 667, 679, 480 A.2d 807 (1984), Judge Smith carefully reviewed the history and development of this rule of evidence, and quoted as follows from D. Binder, Hearsay Handbook § 1.01, at 451 (2d ed. 1983):

The federal courts and a majority of state courts permit an expert witness to express an opinion that is based, in part, on hearsay of a kind that is customarily relied on by experts in that particular business, profession, or occupation. However, the hearsay itself is not admissible as substantive evidence. It is only admissible to explain the basis of the expert's opinion. In other words, the trier of fact is allowed to give credence to an expert's opinion that is based on the assumption that certain hearsay is true, but is not allowed to give credence to the hearsay itself.

This rule has long been accepted in Maryland. Consol. Mech. Contractors v. Ball, 263 Md. 328, 283 A.2d 154 (1971); Airlift, Ltd. v. Bd. of Co. Comm'rs, 262 Md. 368, 278 A.2d 244 (1971); Baltimore & O.R.R. v. Hammond, 128 Md. 237, 97 A. 532 (1916); Baltimore City v. Hurlock, 113 Md. 674, 78 A. 558 (1910).

Appellant was entitled to elicit from her expert the reasons for his opinion, and having laid a proper foundation for the introduction of statistical information contained in the reports, the evidence should have been admitted.

C

Public Records Exception

Appellant also offered the reports as substantive evidence, suggesting their admissibility pursuant to a public records exception to the hearsay rule.^[18] The reports were properly authenticated, and the only objections interposed were on grounds of relevance and hearsay. In rejecting the reports, Judge Miller said:

I am not going to admit either one of them. I think to admit a document, first of all a hearsay document — it may be a document of the United States government, but you cannot try cases on the basis of documents containing hearsay information....

The reports are clearly hearsay in character, and contain not only primary hearsay, but secondary and tertiary hearsay as well. Appellant does not dispute this but contends that reports required by law to be prepared by a government official and submitted annually to the President and the Congress enjoy a presumption of reliability that is not rebutted by any evidence in this case, and that the reports should therefore have been admitted.

McCormick on Evidence § 315, at 888 (E. Cleary 3d ed. 1984) describes the common law exception for public records: "The common law evolved an exception to the hearsay rule for written records and reports of public officials under a duty to make them, made upon firsthand knowledge of the facts. These statements are admissible as evidence of the facts recited in them."

The modern trend has been to admit public records when the information is gathered by a public officer under a statutory duty to investigate and record or certify facts ascertained by other than personal observation. 5 J. Wigmore, Evidence § 1635, at 531 (3d ed. 1940) states:

Now there may be cases in which the officer's duty clearly does involve his ascertainment of facts occurring out of his presence and requiring his resort to sources of information other than his own senses of observation; for example, an assessor's record of the value of real estate and its occupancy, or a registrar of voters' record of electors' residences. When such a duty clearly exists, the general doctrine above, that a witness should have personal knowledge, need not stand in the way, for (as already noted) it has its conceded limitations; and where the officer is vested with a duty to ascertain for himself by proper investigation, this duty should be sufficient to override the general principle. It is true that due caution should be observed before reaching the conclusion that the law has in fact in a given case intended to invest the officer with such an unusual duty. But when it clearly appears that a duty has been prescribed to investigate and to record or certify facts ascertained other than by personal observation, then it follows that, in accordance with the general principle of the present exception, the statement thus made becomes admissible.

In reaching the same result, McCormick on Evidence § 317, at 737-38 (E. Cleary 2d ed. 1972) reasoned:

To some extent, the conclusions of a professional investigator making inquiries required by his professional and public duty contain assurances of reliability analogous to those relied upon as assuring accuracy of his statements of fact from firsthand knowledge. A skilled investigator can be presumed to report as accurate or to rely upon a hearsay statement only after inquiry into its accuracy. Often such an inquiry, by one professionally equipped to make it well and on the scene at a time when events are fresh and inquiry is most likely to be fruitful, could be relied upon to assure the reliability of those hearsay statements upon which he relies. Much the same could be said of his conclusions. In both cases, it is clear that the report and its conclusions are recognized by all concerned to lay the foundation for future official action, which is likely to stimulate the same habitual accuracy in reporting facts known that underlies the exception for official records generally. (Footnotes omitted).

Fed.R.Evid. 803(8) provides that the following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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 of