Federal Evidence Review

Eighth Circuit concludes that statements made in a federal agency press release and technical briefing concerning a product recall were admissible in a civil breach of contract and warranty action under the FRE 803(8) public records exception, in General Mills Operations, LLC v. Five Star Custom Foods, Ltd., _ F.3d _ (8th Cir. Jan. 7, 2013) (Nos. 12-1731, 12-1826)

Normally statements contained in a press release are considered hearsay if offered for the truth of the matter asserted under FRE 801(c). See, e.g., Kunz v. Utah Power & Light Co., 913 F.2d 599, 605 (9th Cir. 1990) (press releases admitted to show “Landowners had notice of the potential flooding circumstances through newspaper and radio” and were not offered for the truth of the matter asserted), cert. denied, 498 U.S. 1085 (1991). The Eighth Circuit recently considered the admissibility of a federal agency press release over a hearsay challenge.

In the case, General Mills Operations, LLC (“General Mills”) sued Five Star Custom Foods, Ltd. (“Five Star”) for negligence, breach of contract, breach of express warranties, and breach of the implied warranties of merchantability and fitness for a particular purpose over the purchase of meatballs. The supplier of ground beef for Five Star issued a recall after the meatballs had been delivered to General Mills. Five Star notified its customers, including General Mills which then destroyed the product. In defense, Five Star claimed there was no admissible evidence to show it had breached any duties. General Mills pointed to a Recall Press Release of the U.S. Department of Agriculture Public Affairs Office, which noted: “all beef product produced during the period of time for which evidence indicates such activity occurred had been determined by FSIS [Food Safety and Inspection Service] to be unfit for human consumption, and is, therefore, adulterated.”

Additionally, in a Technical Briefing to industry members, an Undersecretary for Food Safety summarized the investigation:

First of all, I do want to remind everyone that this is still an ongoing investigation and therefore we may not be able to answer all of your questions today. As a result of the USDA’s ongoing investigation, the FSIS, the Food Safety and Inspection Service, just recently obtained evidence that [Westland] had a practice that allowed them to occasionally slaughter cattle that had already passed ante mortem inspection but had become nonambulatory prior to entering the slaughter operation without notifying our public health veterinarian. This practice is not compliant with FSIS regulations. Therefore, FSIS determined that their products were unfit for human food because the cattle did not receive complete and proper inspection.

On the breach of contract claim, the district court granted summary judgment for General Mills but on the breach of warranty claim, it granted summary judgment to Five Sta. See General Mills Operations, LLC v. Five Star Custom Foods, Ltd., 789 F. Supp. 2d 1148, 1160 (D. Minn. 2011). The district court concluded that it did not need to consider the argument of General Mills on the admissibility of the Recall Press Release, since the Technical Briefing statements were admissible and sufficient to sustain the claim. Id. at 1257 n.12.

On appeal, the Eighth Circuit directly considered the issue on the admissibility of the press release first. The circuit concluded the press release was admissible as a public record under FRE 803(8). As the circuit generally noted, "Many press releases are certainly hearsay." However, in this instance, the press release included "findings from an investigation pursuant to authority granted by law" and satisfied the hearsay exception. General Mills, _ F.3d at _ (citing Patterson v. Cent. Mills, Inc., 64 F. Appx. 457, 462 (6th Cir. 2003) (affirming the admission of some statements in “press releases and other publications” of the Consumer Products Safety Commission concerning defective labeling of t-shirts which include facts, opinions and conclusions of the federal agency); Byrd v. ABC Prof’l Tree Serv., Inc., 832 F. Supp. 2d 917, 921 n.3 (M.D. Tenn. 2011) (concluding Department of Labor press release was admissible as a public record).

As an independent basis, the circuit further agreed with the district court that the Technical Briefing, which occurred the same day as the press release, also included similar information as the press release and was admissible under FRE 803(8)(A)(iii) as a public record. Consequently, the breach of a duty had been established based on these agency statements.

The General Mills case highlights the operation of the public records hearsay exception. By its terms, the rule applies to a "record or statement of a public office" which may be admitted so long as the other enumerated requirements are met.