Federal Evidence Review

In plaintiff's personal injury suit against asbestos-related defendants, redacting notations on plaintiff's death certificate, autopsy report and hospital records concerning mesothelioma as his cause of death; although the records are admissible under FRE 803(8) (Public records and reports) and FRE 803(9) (Records of vital statistics), under FRE 403 the trial judge may exclude from the record any information whose probative value was outweighed by the risk of unfair prejudice, in Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777 (3d Cir. March 21, 1996) (No. 94-2148)

The Federal Rules of Evidence contains provisions that allow for the admission of vital statistics as an exception to the hearsay rule, such as

• FRE 803(8) (Public records and reports) which admits “records … or any data compilations … of public offices … setting forth (A) the activities of the office ..., or (B) matters observed pursuant to duty imposed by law … , unless the sources of information or other circumstances indicate lack of trustworthiness.” FRE 803(8). and
• FRE 803(9) (Records of vital statistics) which admits “[r]ecords or data compilations … of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.” FRE 803(9).

Often these records of vital statistics also contain notations about factors related to the statistical event. For instance, a birth certificate in addition to recording that a particular child was born at a certain date from a certain woman, often includes a notation as to the father of the child. A death certificate, in addition to noting that a particular person had died at a certain place and time, may also note a cause of death. There may be a gap in the capacity of the hearsay declarant of there records to make such factual statements. While the declarant may be full qualified to compile the statistical record as to a particular child's birth, that skill often does not extend to a prerequisite to the event, such as who was the father nine months previously. In recording a death, the declarant has witnessed the body and attributions as to who it was, but often the cause of death is a highly complex diagnosis, such as whether it was AIDS that caused a death, or a cancer associated with the condition. How do courts apply the vital statistic hearsay exceptions when the record may also includes other information? Very few federal cases have addressed the application of the vital records exceptions in FRE 803(8) and FRE 803(9). In one of the most recent cases, decided by the Third Circuit nearly fifteen years ago, the court noted that FRE 403 frequently acts to exclude the non-statistical aspects of the vital statistic record.

In the case, plaintiff Holbrook sued various maritime shipping companies and manufacturers and suppliers and users of asbestos products. He claimed that he had developed mesothelioma (cancer from exposure to asbestos-containing products) while working aboard various shipping companies' vessels. When the plaintiff died, his widow was substituted as plaintiff as the administratrix of his estate, and the case proceeded to trial.

At trial, the plaintiff “sought to prove that John Holbrook died from mesothelioma as a result of asbestos exposure aboard the [defendant's] shipping vessels. The defendants contended that the exposure to asbestos, if any, was minimal and could not have caused mesothelioma, and that if John Holbrook suffered from mesothelioma, it resulted from radiation exposure [he incurred] during Dominic I,” his seven months service in 1962 during a government nuclear testing operation. Both sides contested the admissibility of various experts' testimony, particularly as to “whether the plaintiff died of mesothelioma and whether radiation exposure was the cause of his mesothelioma. The jury rendered a verdict for the defendants and the plaintiff appealed, contending in part that the trial judge erred by determining that risk of unfair prejudice outweighed probative value of references to mesothelioma in the plaintiff's death certificate, autopsy report and hospital records, and accordingly excluding those references under FRE 403 in records admitted under FRE 803 (8) and (9). Holbrook, 80 F.3d at 785.

While the Third Circuit reversed and remanded, it did so on the basis of the trial judge's exclusion of expert witnesses regarding the diagnosis of mesothelioma and whether radiation was the possible cause of mesothelioma, rather than asbestos exposure. In doing so, the circuit held that the trial judge did not abuse its discretion by “redacting references to mesothelioma contained in various documents” reporting vital statistics. Holbrook, 80 F.3d at 787.

As noted by the circuit, the plaintiff challenged on appeal:

“the district court's ruling that references to mesothelioma in various documents must be redacted. Holbrook contends that she properly moved for admission of the death certificate, autopsy report and hospital records, including the references in them to mesothelioma, under Federal Rule of Evidence 803(6), (8)-(9). The court, however, required under Rule 403 that references to malignant mesothelioma be deleted because the authors of the documents did not testify about the bases of their diagnoses. In so ruling, the court stated that '[t]he diagnosis of mesothelioma is a diagnosis that must be subjected to cross-examination in order for it to be meaningful to a jury.' Rule 803 does not mandate admission of this evidence, but rather allows evidence to be admitted when it would otherwise be objectionable hearsay.”

Holbrook, 80 F.3d at 786.

The circuit affirmed redacting the references to mesothelioma from the vital records. As explained by the circuit, this was necessary because “Rule 403 always remains as a potential bar to admissibility. Holbrook's statement that '[r]ecords of deaths are simply admissible “as is,” ' is simply wrong.” The circuit noted that the plaintiff did not properly account for prior Third Circuit precedent in which:

“[W]e upheld the trial judge's redaction under Rule 403 of references to 'accidental death' from a death certificate, coroner's certificate and pathologist's necropsy report. There, the decedent's widow sought benefits under a policy covering accidental death. The trial court found that statements in those documents could mislead the jury because the legal meaning of the phrase 'accidental death,' as defined and used in the insurance policy, could differ from its meaning as used in the medical reports. To avoid this problem, the court excised from the documents any reference to the death as accidental. We held that the court properly used Rule 403 to avoid unfair prejudice and confusion.

Holbrook, 80 F.3d at 787.

The circuit cited the reasoning of the trial judge in affirming his ruling that references to mesothelioma in various vital statistics documents would be redacted:

“[T]he diagnosis of mesothelioma is a diagnosis that must be subjected to examination and cross-examination.... [I]t is my ruling that under Rule 403 that there is an unfair risk of unfair prejudice for you to be able to argue that 9 other doctors unexamined in this Court diagnosed mesothelioma, which at best has a-only a 90 percent chance of diagnosis as I understand the testimony through autopsy being correct. And a 60 percent chance at being correct if there is a tissue sample excised from the lung as opposed to a needle point examination where the risk of being right is-the chance of being right is only 40 percent.... [I]n terms of trustworthiness of the diagnosis, it's not like there was a bone that's broken, the bone is broken. Here you have a diagnosis of mesothelioma which is something that has to be examined as to method of diagnosis, technique of diagnosis, certainty of diagnosis.”

Holbrook, 80 F.3d at 787.

The circuit also rejected the plaintiff's contention that “the difficulty of the diagnosis affects the weight to be accorded the documents' contents, not their admissibility.” The circuit explained that while “[t]he difficulty of the diagnosis does indeed go more to the weight than to the admissibility of the evidence, … that does not make it irrelevant to admissibility in light of Rule 403. In addition to the independent Rule 403 hurdle, Rule 803(6) and Rule 803(8) expressly contemplate exclusion based on untrustworthiness. Holbrook, 80 F.3d at 787.

In affirming the redacting of the vital statistics, the circuit approved that the trial court:

“[B]ased on its determination that mesothelioma is difficult to diagnose, determined that the risk of unfair prejudice, by leaving references to mesothelioma in documents not testified to by their authors nor relied on by qualified experts, outweighed the probative value. Because of problems in accurately diagnosing mesothelioma, the court determined that the unexamined references were not helpful to and could potentially have misled the jury. The court's ruling requiring that references to mesothelioma in various documents be redacted was neither arbitrary nor irrational, and accordingly, will be affirmed.”

Holbrook, 80 F.3d at 787.

The Third Circuit in Holbrook isolated a key consideration in deciding to admit a record as an exception to the hearsay rule. As initially reflected by the Advisory Committee's Note to FRE 803(8), the rule focus upon the admission of “'factual findings' as strictly construed” so that “evaluations and opinions contained in public reports shall not be admissible under this Rule.” ACN 803(8). The same reasoning would appear equally applicable to records of vital statistics, admissible under FRE 803(9).