Beech Aircraft Corporation v. Rainey

PETITIONER:Beech Aircraft Corporation
RESPONDENT:Rainey
LOCATION:Michigan Dept. of Treasury

DOCKET NO.: 87-981
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 488 US 153 (1988)
ARGUED: Oct 04, 1988
DECIDED: Dec 12, 1988

ADVOCATES:
Dennis K. Larry – on behalf of the Respondent
Joseph W. Womack – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 04, 1988 in Beech Aircraft Corporation v. Rainey

William H. Rehnquist:

Mr. Womack, you may proceed whenever you’re ready.

Joseph W. Womack:

Mr. Chief Justice, and may it please the Court, these petitions respectfully ask you to consider two of the Federal rules of evidence.

The first is 803, having to do with the use of Government reports.

The second is a different rule, namely 106, concerning contemporaneous publication of documents.

This, as the Court will know, is essentially a codification of Dean Wigmore’s completeness formulation.

Implicit in the second point, if the Court please, is also a different, a third rule, namely, 801, and I say implicit because it is triggered by a footnote in the panel opinion of the Eleventh Circuit.

With regard to 803, namely, the Government report rule, a moment or two, please, of background.

In mid-July of 1982, a tragic accident involving the loss of a Navy trainer, sadly, we lost a pilot and a student.

The following day, the squadron commander convened separate investigations.

The one in question here is the JAG investigation commenced pursuant to the Judge Advocate General’s manual.

Subsequently suits were filed, diversity suits were filed, in the Northern District of Florida, consolidated for handling discovery and trial of bifurcated proceedings.

With trial in mid-July of 1984, it was during that trial that I offered, as an exhibit for the jury, certain portions of the JAG officer’s report.

Historically, I think I had brought that matter to the District Judge’s notice several months before the trial, at least four months before trial.

The Court considered the matter, brief were filed, it was considered orally and in memoranda.

The Court ultimately concluded that of the 31 factual findings in the JAG report, that it would admit or allow me to use four.

Of the nine conclusions or opinions contained in the JAG report, the District Judge admitted one.

For convenience, I think the full text of the total report, that is, the factual findings and the conclusions, are set out in the Beech petition.

And I raise this purely as a matter of clarify, because the en banc opinion and the panel opinion below both say… and I think respectfully, erroneously, assume… that all of the report was admitted, and that’s not correct.

So if you take the joint appendix, you have what the Court assumed to have been admitted, and you take the petition and you have the exact document that was admitted.

Actually, after the Court’s ruling, I simply had it retyped, so as not in the heat of trial to admit anything that the Court didn’t want admitted and use it as a blow-up exploded exhibit for the jury.

The specific bone of contention, if I may put it that way, is a statement by the JAG officer in his conclusions that the probable cause of this tragedy was the pilot’s failure to maintain proper interval.

And by that he means, of course, a violation of the distances required by pattern integrity and not touch and go pattern with training squadron.

At the time of the accident, parenthetically, there were six airplanes in the pattern.

Immediately before there had been five, and when the sixth airplane entered the pattern, this tragedy occurred.

The Court of Appeals of my Circuit… the panel took it away from me, took the verdict away from me.

William H. Rehnquist:

The District Court admitted the evidence?

Joseph W. Womack:

Yes, sir, yes, your Honor.

The panel reversed.

There was a special concurrence by second Judge Frank Johnson, suggesting that the Court take it en banc.

We petitioned, the Court recalled the panel opinion, ordered new briefs filed, and ultimately considered the case further without argument, but on new briefs.

Joseph W. Womack:

The en banc Court split six-six on the issue of whether or not the conclusion of the JAG officer classified or called, denominated, if you will, an opinion.

Relying, if the Court please, on a borrowed case… and I say borrowed because it relied on a Fifth Circuit case which had been decided prior to the creation of the Eleventh Circuit.

Anthony M. Kennedy:

Do you concede that part of the memorandum is admissable under 803(6)?

Joseph W. Womack:

I think both parts are admissible, your Honor.

I continue.

Anthony M. Kennedy:

Do all parties concede that 803(6) is applicable to at least part of the document?

Joseph W. Womack:

803 (6)?

Anthony M. Kennedy:

Yes.

Is that the section you’re relying on?

Joseph W. Womack:

I had contended that they–

Anthony M. Kennedy:

It’s (8)?

Joseph W. Womack:

–were admissible under Section (8).

Anthony M. Kennedy:

Was there any contention it was admissible under (6)?

Joseph W. Womack:

Not to my knowledge, sir.

Anthony M. Kennedy:

All right.

Joseph W. Womack:

That section, of course, does deal with opinion–

William H. Rehnquist:

We’ll resume there at one o’clock.

You may continue, Mr. Womack.

Joseph W. Womack:

Mr. Chief Justice, and may it please the Court, just before the recess, I had suggested that the Court of Appeals had made an erroneous assumption, and so that the Court will not think that I am making that assumption, that’s what the Court says in the en banc opinion.

In one of the footnotes, you’ll notice that Judge Tjoflat says that they did not have the exhibits before them.

Why the appellant didn’t send them up, or why the Court didn’t call for them, I cannot tell you.

I simply say that that’s what he says in the opinion, and that accounts for the discrepancy in what was admitted, what the jury saw, versus what the Court of Appeals thought had been put in evidence.

Lastly, just before the recess, I suggested that the Court had borrowed a Fifth Circuit case.

This, of course, is Smith v. Ithaca, and unless this Court says otherwise, that is the law of our Circuit, as we come here today.

My mission, as I understand it, is to respectfully seek your approval to use these types of conclusions or opinions.

I make that request to you, provided they are trustworthy.

In this case, please consider that my opponents had four months’ notice.

They filed documents with the Court suggesting that they wanted to challenge the trustworthiness of the JAG investigator.

I agreed at the conference before the Court that they might add additional witnesses if they needed to do that, to challenge the trustworthiness of it, and his honor twice indicated that he would consider any precautionary instruction which they wished to hand up.

Nothing was done.

Joseph W. Womack:

No discovery was taken, no motion to continue, and no witness was called.

In those circumstances–

William H. Rehnquist:

No discovery of the circumstances under which the investigation was conducted?

Joseph W. Womack:

–None whatsoever, your Honor.

Now it may be that in a symbolic way, we as lawyers are not laying the right predicates on trustworthiness.

In that–

William H. Rehnquist:

As I read the text of the rule at any rate, Mr. Womack, it says, section (8) says, certain stuff shows the

“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. “

That would sound almost like the burden is on the person who wants to show that they’re not trustworthy.

Joseph W. Womack:

–I submit that I make the threshold showing that it’s legitimate, authentic, done in the course and scope of the officer’s duties, and so forth.

And then, if they wish to challenge it, it should shift to them.

And I would be the first to encourage every precaution or every right be given them to do all of the things that they wish to challenge.

The fact is, in this case, none of those things were done.

If I could move to another point, please, I think that we as lawyers are not focusing on the right thing.

I suggest methodology, experience, training of the investigator, the content of the reports, the intended use, perhaps, institutional bias if that exists, probative weight, and lastly, prejudice, undue prejudice, that might inure.

And those things, rather than the agency or scope of employment of the Government investigator, would give a more trustworthy foundation for the District Judge.

Moving quickly, if I may, to the generic issue, whether this Court will permit us to use probable cause conclusions, I ask your approval for that use.

And I ask you to consider several reasons.

First, they are certainly not binding on anybody in a judicial sense.

The committee recommends their use, most of the circuits permit their use, and indeed in the Fifth and the Second Circuit, while there are cases going in both directions, they are permitted there.

Most of the evidence professors say that we should be able to use them.

Gainsaid, that’s not binding on this Court, obviously.

But there are some very good policy reasons for doing so, quite aside from what the evidence professors might have to say.

Some cases of necessity cost… the sheer volume of paperwork generated by business and Government today is just overpowering, and so I submit in the most respectful terms that we, who try cases, need to be able to use in some form some portions of Government documents.

However strict the Court might feel on trustworthiness before you allow us to use them, that’s a matter for the Court, and not for us.

But there is an overriding need for our use of these documents.

In a practical sense, please consider also that if you allow a conclusion or an opinion that’s probable cause, and doesn’t go past the line to the fixation of liability or legal conclusions, if you just let us use probable cause, I submit to you that the District Judges deal with this on a daily basis.

The cautionary charges can be given almost from note.

The trial lawyers know how to handle them without any difficulty.

And Lastly, and I think perhaps importantly, the jurors deal with economic probabilities, mathematical probabilities, medical probabilities, on a daily basis.

Joseph W. Womack:

So I submit there’s nothing exotic or esoteric about allowing a fact-finder to have those kinds of conclusions, provided there are ample, indeed, even stringent terms going to probabilities, to trustworthiness, excuse me.

Antonin Scalia:

Well, we’re really just not discussing this in the abstract, are we?

I mean, it’s not up to us.

There is a rule that we’re supposed to be following here.

And what content would you give to the limitation that appears in the rule, to factual findings?

If this assessment that in all probability, or it’s probable that rollback was the cause if that’s factual finding, what isn’t a factual finding?

Joseph W. Womack:

I think if the JAG officer had gone further and tried to attach liability for the accident, that that would have been going too far, both as a matter of law, and it would be contrary to the JAG manual itself, which forbids such a conclusion.

Antonin Scalia:

Well, never mind the JAG manual.

But why would that be any less a factual finding?

It was probable that the cause was rollback, you say, that’s a factual finding, but it’s probable that it was the pilot’s fault would not be a factual finding.

Joseph W. Womack:

For my part, your Honor, I thought the JAG officer’s finding in this case was a factual evaluation.

But it is denominated in this report as a conclusion or opinion, because the catalog, the protocol of the JAG manual requires them to be set out under certain headings.

Now, if your Honor’s question, the reach of the Court’s question is, was this JAG officer’s terminology, his verbiage in this case, consistent only with my theory of the case, the answer is no, sir.

Was it compatible with the Respondent’s case below?

The answer is yes.

For two weeks, they litigated the case below, that the airplane got from point A to point B and behaved as it did aerodynamically, because of an engine problem.

To be sure, I litigated with every fiber of my being pilot error.

But the jury, according to their verdict, never got that far.

Antonin Scalia:

I think you mistake my problem.

I’m not concerned whether the report calls that a conclusion or not.

You can have a factual conclusion, quite possibly, which would be a factual finding.

Joseph W. Womack:

Yes, sir.

Antonin Scalia:

But where do you want us to draw the line between what is a factual finding, and what is not a factual finding?

Joseph W. Womack:

I would ask you–

Antonin Scalia:

Do you think a finding that the pilot was negligent would not be a factual finding?

Joseph W. Womack:

–I think a finding that the pilot was negligent would be too close to a legal conclusion.

I think if you give the fact-finder the bit of evidence that this is a probable cause, and then let them defend against that, that that’s proper.

Antonin Scalia:

Well, what about the pilot failed to push the stick to the right when he should have?

Would that be a factual finding?

Joseph W. Womack:

If the JAG officer says that the probable, a probable cause, or the probable cause, was the pilot’s failure to input aileron, I think that that would be a factual finding that they should be able to consider.

Joseph W. Womack:

And to answer the bottom line question of your Honor, I would ask you to consider drawing the line, if the Court chooses to draw a line, just on the other side of probabilities and just this side of legal conclusions and fixation of legal liability.

William H. Rehnquist:

Well then, Mr. Womack, what do you think the converse of factual finding, what do you think the rulemakers meant to exclude when they said factual findings shall be admissible?

Do you think it was legal conclusions?

Joseph W. Womack:

I thought they intended to exclude legal conclusions or fixation.

William H. Rehnquist:

What do you mean “fixation”?

Joseph W. Womack:

Legal determinations of legal responsibility.

And I submit to your Honor that most of the evidence writers, and most of the circuits have said that this type of conclusion, opinion, finding, or however denominated, is really a specie of factual findings.

William H. Rehnquist:

Surely the law of evidence has been kind of confused for many years by efforts to distinguish between fact and opinion?

We don’t want to get into that here.

Joseph W. Womack:

Well, Judge Weinstein, a much-loved authority on evidence, makes the very point that the District Judge should not be put in the position of drawing what he calls “hairsplitting conclusions” or factual evaluations.

It’s almost impossible to do, according to His Honor’s view, and it’s better to admit it under caution, under tight restraints of trustworthiness, with cautionary instructions.

Now, that’s the majority view, but as I said to your Honor before, it’s certainly not binding on this Court.

John Paul Stevens:

Mr. Womack, may I ask one other question?

I’m just a little unclear on part of the record.

I don’t recall it that well.

One of the… the judge did let in part of the report?

He let in the section that says the most probable cause of the accident is the pilot’s failure to maintain proper interval.

That did go in, didn’t it?

Joseph W. Womack:

Yes, sir.

John Paul Stevens:

But he did not let in the number (6), although the above sequence of events is the most likely to have occurred, this does not change the possibility that rollback did occur.

Joseph W. Womack:

No, sir.

John Paul Stevens:

Am I right in that?

Why did he let… how did that happen, that only the stuff favorable to one side got in?

Joseph W. Womack:

If I may paraphrase His Honor, he said that was a possible scenario.

In other words, to his eye, a possibility was not reliable enough for him.

That’s the way I read–

John Paul Stevens:

Would you, would you think he was correct in that?

I mean, that’s that’s… why is one… the possibility that a rollback occurred, which is consistent with the Plaintiff’s theory–

Joseph W. Womack:

–Justice Stevens,–

John Paul Stevens:

–can’t get in, but a probability can?

Joseph W. Womack:

–I offered the entire JAG report.

I wanted them all in.

John Paul Stevens:

Well, I would have though that would be the right answer myself; that you either put it in, or you don’t put it in.

Joseph W. Womack:

That’s what I urged for four months, in writing, and in every way that I could.

His Honor did not agree with me.

He considered the matter for a long period of time.

Ultimately… changed his ruling once, and ultimately edited the report himself.

John Paul Stevens:

Did the Plaintiff object to that editing of the report?

Joseph W. Womack:

The Plaintiff objected to the conclusion, as I recall.

John Paul Stevens:

Well, I understand.

He objected, of course, to number (6) going in or to number (7), going in.

Joseph W. Womack:

Number (7), yes, sir, he did.

John Paul Stevens:

He didn’t take a position if (7) goes in, then the rest ought to go in, too?

Joseph W. Womack:

I don’t think he did, your Honor.

John Paul Stevens:

That’s puzzling.

Joseph W. Womack:

I don’t mean to speak for him, and Mr. Larry will certainly know.

You may rely on what he says that–

William H. Rehnquist:

Now the second question in your petition, as you doubtless know, Mr. Womack–

Joseph W. Womack:

–If your Honor please, the next has to do with what I call the paper rule… this is 106, which says in substance that if one offers part of a document or transcript or letter, that type of thing, and the advisory or opponent of the document wishes the other parts offered, it must be done at that time.

As I read it, it says “contemporaneously”.

As I’ve indicated to you, Dean Wigmore and Professor McCormick, Judge Weinstein and other authors interpret it that way.

In this situation, the Eleventh Circuit, with all due respect, if their opinion stands, they have converted Rule 106 to a substantive evidence rule, and that rule would run along the theme that 106 is converted to a theme of one’s case doctrine, or that one can give unqualified opinions, so long as they are consistent with one’s trial stance or one’s trial theory.

Anthony M. Kennedy:

–Is it your position that Rainey could not get this document in, or that he just failed to do so in a proper way?

Joseph W. Womack:

I think that the subject of an engine opinion, the technical opinion which he was asked, or which he tried to express, was a professional opinion.

Now, if they thought that they could qualify that filer as an expert, then they should have tried to lay that predicate, or perhaps put him on in their case if they wanted to, or call him in rebuttal.

They could have made the effort.

I would not agree that he was qualified to do that, and I make that suggestion to your Honor because they called Dr. Craig as an aerodynamicist, and they called Mr. Hall as their engine expert.

Anthony M. Kennedy:

In other words, you put it on whether or not he’s an expert.

And your position, I take it, is simply because you asked him whether he made a statement, and read from a document, that you’re not introducing the document?

Joseph W. Womack:

That’s ground one.

Joseph W. Womack:

And ground two, please consider, that if they had questions to ask of Rainey which were related to generic question subject matter that we had opened up, then I think they could have gotten in other parts of that letter, whatever its status as hearsay.

For example–

Anthony M. Kennedy:

Well, isn’t that what happened?

Joseph W. Womack:

–I say that–

Anthony M. Kennedy:

On cross, they asked him about the document.

I thought your position would be that since the document wasn’t admitted, and there was no way that he either could or did ask for the document to be admitted and that’s the end of it.

Joseph W. Womack:

–Well, that Court of Appeals says what we did was tantamount to offering.

I don’t agree with that, but that’s what the Court said and I’m bound by it, as I understand it.

William H. Rehnquist:

Why are you bound by something that the the Court of Appeals–

Joseph W. Womack:

Well, maybe that’s the wrong word to use.

William H. Rehnquist:

–Well, you’re not bound by their decision.

You’re petitioning for certiorari and asking us to reverse it.

Joseph W. Womack:

Yes, yes.

I thought that the use of the letter, if at all, if I may put it that way, must have been invoked at that time, treated at that time, and had to be related to the subject matter which we had opened up.

William H. Rehnquist:

Thank you.

Joseph W. Womack:

I did not think that you could change subject matter, or bring in new subject matter, much less professional opinions about spool turbines.

Anthony M. Kennedy:

But is it your opinion that if he had asked for the admission of the letter at that time, when you first brought the letter in, that the trial judge would have had to admit the letter?

I want to know the answer to that.

Joseph W. Womack:

Yes, sir.

If he had triggered 106, and told the trial judge at that time that he was doing that, then the Court would have taken the letter, looked at what we asked, then looked at what was said, and made a ruling based on 106.

Anthony M. Kennedy:

And you’re telling us that the ruling would have been that it should be admitted?

Joseph W. Womack:

If it was germane to the subject matters opened up.

William J. Brennan, Jr.:

But, your argument, Mr. Womack, as I understand your brief, is that Rule 106 is inapplicable anyway, because he never mentioned it or raised it.

Isn’t it?

Joseph W. Womack:

That’s–

William J. Brennan, Jr.:

Have you abandoned that argument?

Joseph W. Womack:

–No, sir, I have not.

The first citing of 106 was in the post-trial motions, and I’m saying to the Court that that’s not timely.

It’s too late.

You’ve got… you ought to be required to warn the District Judge, so that he can compare and make a reasoned ruling, not catch him by surprise on post-trial motions.

Antonin Scalia:

To get more specific, as I understand it, the writing… you didn’t introduce the writing, did you?

Joseph W. Womack:

No, your Honor.

Antonin Scalia:

You just read from it?

Joseph W. Womack:

No, your Honor.

I can’t envision any circumstance under which I would put an adversary’s investigatory letter into evidence.

Antonin Scalia:

Well, then how could he have raised 106?

Do you concede that 106 does not require that the writing or recorded statement be introduced in evidence?

Joseph W. Womack:

In my awkwardness, I’m not getting my point across, and that’s my fault.

I didn’t think that 106 was usable at all, under the circumstances.

Antonin Scalia:

Because you didn’t introduce the document itself, you just read from it?

Joseph W. Womack:

That’s right.

But the Court of Appeals says that my point is not well taken.

Now, if you assume that I am wrong, and if they were going to allow its use as a 106 proposition–

Antonin Scalia:

Then he should–

Joseph W. Womack:

–If I have any time, I would like to reserve it, your Honor.

William H. Rehnquist:

–Very well, Mr. Womack.

Mr. Larry, now we’ll hear from you.

Dennis K. Larry:

Mr. Chief Justice.

May it please the Court, Rule 803(8)(c) has been variously described by the Courts in these ways: first and foremost as a mighty litigation tool.

I believe that the issue before this Court is for it to decide how mighty will be the litigation tool found in 803(8)(c).

It has been termed by the Advisory Committee as a controversial rule.

It has been called by courts a complex rule.

And how to interpret factual findings, was obviously, as the brief set forth, a matter on which the House and the Senate could not agree.

The point of Rainey and Knowlton at this proceeding, is that while that rule was intended to make available to the jury factual findings that could be helpful to that jury, that were reached by an investigator in the course of an investigation, that that rule was never intended by the framers to permit the garden variety, pure expert opinion, that normally comes in through witnesses who are qualified as experts, who are revealed in the discovery process as experts, who are routinely deposed prior to trial as experts, and who must be qualified by the Court–

Sandra Day O’Connor:

Mr. Larry, I guess some courts in applying the rule have read it to mean that so long as an official report contains some factual findings, that then the entire report is admissible, unless it is lacking in trustworthiness.

Some courts have taken that view, I take it?

Dennis K. Larry:

–Justice O’Connor, the only case I know of, other than Judge Tjofiat, who wrote a concurring opinion in this case, that discuss that at all was Zenith v. Matsushita.

It may have been discussed in others, but my recollection of what the Court there said was that one could read it that way.

Sandra Day O’Connor:

And one could, I guess, read the rule that way.

Dennis K. Larry:

Yes, ma’am.

Dennis K. Larry:

Yes, Justice.

However, the Court goes on in the same case to say, however, it appears clear that what was intended was only to admit them to the extent of their factual findings, and that’s the construction that we urge here.

William H. Rehnquist:

Aren’t we then just embroiled in the traditional distinction of 50 or 60 years ago, the difference between fact and opinion?

Dennis K. Larry:

Justice Rehnquist, I believe that this Court, I believe that courts, can see a difference, and can distinguish between what an investigator finds as a fact, based upon his evaluation of evidence, and what is pure opinion.

William H. Rehnquist:

Surely anyone trained as a lawyer would be able to see things at either end of that spectrum.

But the difficulties come in the middle, where very competent trial judges, very competent lawyers may see things differently.

And do we want reversals of trials because the trial judge saw it one way, rather than the other, in the middle of the spectrum?

Dennis K. Larry:

your Honor, what we want is for the trial judge to make a determination as to whether the report qualities under the rule, and not simply let the entire report in just because in some cases, it may be difficult to distinguish between opinion and fact.

I think that what we have here is a rule that carefully used words, “findings of fact”, and never used the word “opinion” in any of the Advisory Committee notes.

William J. Brennan, Jr.:

Would you settle for the trial judge setting up,

“these are my findings of fact, a, b, c, d, e; the rest are opinion? “

Dennis K. Larry:

I think the judge, when the report is offered, has to decide whether the report sets forth more than findings of fact.

And the cases, and the Advisory Committee notes, do offer a helpful guide to the judge in determining the kind of finding of facts that was envisioned by the framers.

The Advisory Committee note to rule 803(6)… and this gets into, of course, the analysis of Smith v. Ithaca, but it’s relevant to your point, Justice… if 803(6) recognized that prior to the Federal rules of evidence, opinions simply didn’t come in in most courts, or at least in many federal courts, and they took care in the note to say,

“Because we recognize that courts have turned away records to the extent of their opinions, we want it to be specifically clear here that opinions and diagnoses are included. “

Moving on to 803(8)(c), the very same hearsay exception, but there is a slightly different subdivision, they recognize, again, evaluative reports have become controversial.

Yet they never reach the point of saying, and we simply want to open up the door to all opinion.

What they do is analyze the kinds of evaluative reports that statutorily had been permitted… for example, Secretary of Agriculture findings as to the true grade of grain, recognizing that that kind of an opinion, by the Secretary, or that kind of a statement by the Secretary, to some extent involves some conclusory process.

A finding or a certificate that a ship was sanitary enough to accept a cargo of beans… admissible under statute… far different from a probable cause opinion, nevertheless slightly more than simply factual.

And the Advisory Committee looks to those statutory exceptions and says,

“this is our helpful guide in deciding the kinds of reports we think ought to be admitted. “

They call them evaluative findings, or evaluative reports.

William H. Rehnquist:

Where in the briefs is the advisory committee language that you’re referring to?

If you don’t know, don’t bother.

Dennis K. Larry:

I have the Advisory Committee note in front of me.

William H. Rehnquist:

Well, it would help.

What I would like to do is get it in front of me.

Dennis K. Larry:

Well, your Honor, I don’t have the page handy.

I’m sorry.

The JAG investigator was bound by a JAG manual, which coincidentally required him to reach findings of fact separately from opinions and conclusions.

Dennis K. Larry:

And interestingly, also, it defined a finding of fact as the investigator’s evaluation of evidence, but not his opinion or his inference as to what all of the evidence might mean… in this case, in terms of causation.

The JAG manual, by its terms, contemplates that the findings of fact would be evaluative, but it takes care to separate that from opinion.

I think that if the Court examines the JAG investigation in this case, it well illustrates the distinction between the kinds of findings that this Advisory Committee intended, and the opinions which we contend this Court should not permit to become a tool for litigators.

In the report, a lot of historical facts are recited… for example, the date, the time and the place of the accident… facts with which there is no evaluation process at all.

He then moves on to such things as was the weather a factor, and as a factual finding, he concludes that because the winds and the temperatures and all were not cut of the ordinary, that for a pilot, weather couldn’t have been a factor.

And he makes that a finding of fact.

He doesn’t say

“it’s my opinion, but it’s possible it was. “

He simply says, factually, weather wasn’t a factor.

He goes on to say that–

Antonin Scalia:

Is his degree of certainty what determines it?

I mean, suppose he had said, well, actually, it’s a close question whether the weather had any effect or not.

The winds were almost at the level where they might have had an effect, and the clouds were almost low enough… but in my opinion, it wasn’t a factor.

Then that would no longer be a factual finding?

Dennis K. Larry:

–In that sense, he is telling the reader of his report that it simply isn’t a factual finding of his.

Antonin Scalia:

But it seems to me that he’s done the same thing in both situations.

It’s only his opinion in both situations.

In one case he’s more certain than he is in the other, but it’s obviously just his judgment in each case, isn’t it?

Dennis K. Larry:

It is true that when an investigator makes a finding or an evaluation by factual determination, he is injecting a judgment process, which is involved in opinion, and gets more and more involved the more you get into the kind of opinion that was admitted here.

Antonin Scalia:

Right.

Suppose in the clear case that you first posited, where it was clear that the weather wasn’t effected, he simply expressed himself by saying, it is my firm opinion that weather was not a factor.

Would that be a factual point?

Dennis K. Larry:

The court could very well determine that although he called it an opinion, he simply made a finding of fact.

I don’t think we can turn on what the investigator called it.

Antonin Scalia:

I hope not.

But I don’t know what we’re turning on, if we’re not turning on that.

What are we turning on?

Dennis K. Larry:

What I’m suggesting to the Court is that as the Advisory Committee evaluated or revalued the kinds of reports that have been previously admitted by statute, and still were preserved, that this is the kind of report that may contain some conclusory, may tend toward the conclusory, but which nevertheless is the investigator’s statement of fact that that’s what it was.

The case of Zenith v. Matsushita, which was cited in all the briefs, makes that statement that factual findings is a term broad enough to encompass any statement of fact that represents a conclusion on the part of the investigator.

Now, Lieutenant Commander Morgan after going beyond the findings of fact then lists his opinions, and makes it clear in his scenario of the opinions that it is impossible for him to know for a fact how the accident happened, why it happened.

Dennis K. Larry:

If I may quote from number five,

“Because both pilots were killed in the crash, and because of the nearly total destruction of the aircraft by fire, it is impossible… almost impossible… to determine exactly what happened. “

He goes on to engage in what he calls a possible scenario, which is what he later calls his probable cause opinion: he sets up the scenario that the pilot, surprised by the presence of another aircraft, race a hard right turn and put the aircraft in stall.

He then goes on to say that the most probable cause was just that possible scenario that I’ve just cited, and states also,

“I can’t rule out the possibility that rollback occurred. “

And to address the question that was raised during Beech’s presentation, the judge initially ruled, and had ruled in his pre-trial order up until the day after jury selection and the day before the first witness, that only what Lieutenant Commander Morgan had called his factual findings would come into evidence.

He said that opinions would have no place in the courtroom.

Then he reversed that, and as Beech pointed out, we were given the opportunity for that short period of time to try to do what we could to attack trustworthiness, which we had made clear we thought was an issue with respect to opinions.

He stated,

“I will not allow all opinions in, only to the extent they’re couched in the terms of probability. “

because in Florida, and I think in other States, experts are not entitled to opine on what they think possibly could have happened, only what they think probably happened.

William H. Rehnquist:

In your view, Mr. Larry, does the admissibility of opinion in this sort of a report turn on whether it’s trustworthy or not, or even if it’s very trustworthy,–

Dennis K. Larry:

Justice Rehnquist, our contention is that before trustworthiness is ever reached as an issue, the findings, the factual findings, have to meet the requirements of the rule, and that, unless it is determined that what is offered is a factual finding, you never get to trustworthiness, with respect to attacking the opinions.

I would like to point out that some time was taken in pointing out the various purposes that are served by allowing investigative findings of fact into evidence, and the suggestion that our contention would somehow disserve those policy reasons for allowing the report.

One of the reasons given that these reports should be admissible is because the officer who does it comes on the scene early.

That purpose is nowhere offended by our position.

Other investigators hired by the parties are partial.

No quarrel with that.

The investigator by the time of the trial I may have a dim recollection of what he did… again, no quarrel with that.

His factual findings, to the extent that they are factual, will still be there, for them to come into evidence, in lieu of his dim recollection.

Points that the cases, and the commentators point to the fact that the investigator can interview witnesses before the parties have pulled them to one side or another.

Again, that doesn’t offend his findings of fact.

That simply says that that’s why this investigator’s findings may be something that we should admit, and oftentimes the officer is trained in doing this kind of investigation.

But none of these purposes speak to and encourage that this factual findings language should be extended to include all opinion, and simply leave it up to the opponent to say, well, if the opinion’s not trustworthy.

I think the wording has to have some meaning other than everything in the world of opinion comes in.

John Paul Stevens:

–May I ask you a question, Mr. Larry?

Do you… am I correct in understanding you place a great deal of emphasis on how the author of the report characterizes the material in the report.

The fact that he calls something a possibility and another thing a probability makes a big difference.

The fact that he calls something a finding of fact, and something else an opinion… am I correct that–

Dennis K. Larry:

Justice, you’re not completely correct in that point.

Dennis K. Larry:

I am saying in this case that Lieutenant Commander Morgan took care to place certain things in his Findings of Fact section, but I don’t believe that this Court should adopt a rule that draws a bright line to be determined by what the investigator calls it.

John Paul Stevens:

–You see because–

Dennis K. Larry:

Because one investigator here could have said,

“I find as a fact that Lieutenant Commander Rainey stalled this aircraft and caused her own death. “

John Paul Stevens:

–But one of the things that puzzles me is that the judge left out all the parts of the possible scenario, in paragraph (5)(a)(b)(c)(d) and (e).

And of course, if it’s just a possibility, maybe it’s opinion, it shouldn’t go in.

But some of the effects that are described in that possible scenario are really quite factual.

I mean, some… that the airplane entered the pattern, with a certain person at the controls, and I guess, you know… some of the things you would really consider to be factual, even though the whole picture is a possible scenario.

Dennis K. Larry:

Your Honor, the judge found in that case, and we agreed with him, that there wasn’t really any way for that investigator to know a lot of those things that he was talking about were possible, who was… whether the student overpowered the instructor, or whether the–

John Paul Stevens:

No, but for example, whether the student could have obstructed the visibility of the instructor in certain attitudes, and the like, those are fairly factual, I would think.

Dennis K. Larry:

–Well, there weren’t any finding… if I’m not mistaken, there were no factual findings in those respects.

I believe that’s why the Court felt that was simply too much of a possible scenario for him to say that comes in.

But interestingly enough, once the Lieutenant Commander Morgan stopped calling it a possible scenario, and then called it his probable cause opinion, then that did it.

John Paul Stevens:

Well, that’s right.

And it seems to me that it is a matter of fact… that one could easily say it’s a matter of fact that there is a possibility that rollback occurred.

I mean, I… you know… in other words, that does not rule out that one possibility.

I know… really I don’t know what the line is.

Dennis K. Larry:

If that expert had been on the stand, I could have asked him,

“Sir, you have to agree with me, don’t you, that you can’t rule out that rollback happened? “

Now, that’s something that would occur in a courtroom.

But the court was unwilling to do anything except allow, once he had decided opinions would come in, to allow anything but probable cause, probability opinions.

No more than I could put an expert on the stand and ask this expert his opinion as to the possibility of the cause was.

I don’t think I’d be permitted to do that.

That’s impeachment kind of questioning, but it’s not what you could do on direct.

Antonin Scalia:

All probable opinions can get in, then?

Is that the line you’re drawing?

Dennis K. Larry:

Your Honor, that’s the line that the judge drew as to why that opinion would come in and not the possible scenarios.

Antonin Scalia:

I see.

And you wouldn’t allow any opinion to come in?

Dennis K. Larry:

He did allow opinion to come in.

Antonin Scalia:

I say you would not allow any opinion to come in?

Dennis K. Larry:

That’s correct.

Antonin Scalia:

And you define opinion as what?

Dennis K. Larry:

I would ask the parties to bring the experts who want to express those opinions to court.

Antonin Scalia:

What do you do with something like… I have a report that said, makes a finding that the brake was applied… the brakes were applied 200 feet before the impact, in an automobile accident.

Dennis K. Larry:

If that was based upon a skid mark–

Antonin Scalia:

Yes, it was.

Dennis K. Larry:

–That was 200 feet long, then you’ve entered into the realm of where an investigator can tend toward the conclusory, but still establish it as a fact.

If he can establish that the skidmark belonged to that automobile… it’s what one of the cases talks about is the kind of a conclusion that all persons skilled in the art would likely agree with.

I believe that was the language from Skogen.

When you get into the causation issues, like we have here, where nobody knows the cause, and the opinions from experts go both ways, and where the evidence… much of it… is destroyed, in the sense that the aircraft burns up… you can’t have the kind of opinions that this Court or any trial judge could say,

“This is the kind of opinion all persons skilled would likely agree with. “

I think the Advisory Committee intended to encompass maybe that much, but stay clear of saying that this kind of garden variety expert opinion, that we take great pains–

William H. Rehnquist:

What if you seek to offer into evidence a weather forecast?

They predict for the next 24 hours high winds and heavy rain.

Is that admissible under this section?

Dennis K. Larry:

–That would not be a factual finding reached by an investigator pursuant to law.

That wouldn’t come under 803(8)(c).

No.

William H. Rehnquist:

So you say that that doesn’t depend on opinion at all, because it’s that kind of opinion is not governed by this?

Dennis K. Larry:

Well, 803(8)(c) speaks only to reports of investigations containing factual findings, and I don’t think that that’s what that would be.

Byron R. White:

Well, what you’re trying to do in your lawsuit is to prove the cause of the accident.

Dennis K. Larry:

That’s correct.

Byron R. White:

Of the accident.

So is it all that difficult?

I guess it is.

Dennis K. Larry:

Is it all that difficult to prove the cause?

Byron R. White:

But it’s not impossible, or you wouldn’t have brought the lawsuit.

Dennis K. Larry:

That’s correct.

But it becomes a matter of very hotly contested expert opinion, as this record amply demonstrates.

Byron R. White:

Yes.

Dennis K. Larry:

It was a very, very… and the sole issue, really, for the jury, whether you call it a legal conclusion–

Byron R. White:

Well, because experts differ is some reason for not allowing in this report?

Dennis K. Larry:

–I’m sorry, I missed the first part.

Byron R. White:

The fact that experts may differ, is that a reason for not allowing this report in?

Dennis K. Larry:

Your Honor… no.

The reason for not allowing this report in is because this opinion… not the findings of fact… is because it’s not a finding of fact and the investigator signals that–

Byron R. White:

So your submission is that if somebody makes a finding of cause, that’s opinion?

Dennis K. Larry:

–If it is… if it goes beyond a normative… if it goes beyond–

Byron R. White:

Well, the investigator… looks around, looks at the evidence available to him and says that the cause of this accident was pilot error.

Dennis K. Larry:

–That’s opinion and doesn’t come in under this rule.

That’s our contention.

Byron R. White:

What if you’re wrong?

What if you say that cause is a finding of fact?

Then it’s in, under this rule?

Dennis K. Larry:

If the investigator calls it… calls cause a finding of fact, I don’t think that changes that it is–

Byron R. White:

You say that that kind of a statement by an expert after examining a crash is always supposed to be considered an opinion?

Dennis K. Larry:

–Well, I think that’s true.

Antonin Scalia:

But, you wouldn’t say that, if you apply the test you gave me earlier, whether everybody would reach that conclusion.

Suppose the investigator based that conclusion upon the fact that he had an eyewitness who was in the cockpit, who said that the pilot hit the stick with his elbow, accidentally, causing the plane to swerve and crash… base it on the live testimony of someone who was in the cockpit.

There would be no doubt… every reasonable person would say that the cause was pilot error.

Dennis K. Larry:

Well, in your example, I think that I would differ with that, because I don’t think that part would be enough to answer the whole question.

But I agree with your Honor, there are cases in which it could be established as a fact… for example, in a case of a shooting death.

One could conclude as a fact that death resulted from a bullet wound in the heart.

William H. Rehnquist:

Why isn’t that opinion?

Dennis K. Larry:

Well, it is… that again gets into that area that is called the kind of opinion, the kind of conclusion that all persons similarly skilled would reach.

It is very apparent that the people skilled in the art of forensics and medical examiner training would agree on.

William H. Rehnquist:

So if they agree on it, it’s not opinion?

Is that your point?

Dennis K. Larry:

Your Honor, I’m making two points.

Dennis K. Larry:

First, under Smith v. Ithaca, which is a very strict construction approach which we urge on this Court, any opinion doesn’t come in.

The second point which has become… I’ve allowed it to become kind of confused, and I apologize… is that even if you adopt the Senate view, the Advisory Committee view, that evaluative reports come in, that they even suggest there should be some limit on the kind of opinion, call it opinion, that should come in as a factual finding.

And that’s why I pointed the Court to the kinds of things the Advisory Committee said should be a helpful guide, and they talk about some very easy-to-resolve questions of would this be the kind of thing that anyone would really disagree with, is what I suggest.

If they had intended for this rule to be a vehicle to place in this kind of opinion… pure opinion… then I think that they should have said that, and I think that this Court, as the Supreme Court of this land, ought to be cautious in, by implication of a rule or a statute, extending it to the point that very important rights of cross-examination are cut off.

And that’s what Beech is urging this Court to do, is to take this rule of factual finding–

William H. Rehnquist:

You could have deposed this fellow, you could have called him as an adverse witness.

Dennis K. Larry:

–Your Honor, the only choice that we had to do that was to seek a continuance.

We did not do that, and for that reason we cannot here complain that we’re entitled to a new trial because we were surprised.

William H. Rehnquist:

You can’t really complain that your right of cross-examination was cut off.

Dennis K. Larry:

Well, your Honor, even under this rule, if I had deposed him, I still can’t cross-examine his in front of the jury.

I can cross-examine him in the deposition, but just because I’ve taken this deposition doesn’t prevent Beech from bringing that report in and just simply putting it in.

And before that jury, I may not cross-examine it.

I have to read a deposition that I took in Iowa, or someplace, some months before the trial.

Now we readily concede that if we thought surprise entitled us to a new trial, we forgave that right, forewent that right.

But I made some discussion in the briefs addressing the circumstances under which this change in ruling was announced, in order to draw attention to the fact that we never conceded that the opinions were trustworthy.

We didn’t sit around not caring whether they came in.

We had a ruling from a Federal District Judge in writing saying they wouldn’t come in, and granted Beech continued to press the point.

We didn’t anticipate the judge would charge the ruling.

That’s again, not mentioned that to say we’re entitled to a new trial for that reason, but to let this Court know, and not be under the mistaken assumption that we simply conceded it and now complain about it.

That is not the case, and the joint appendix contains the transcript of the hearing before the judge when he did change his mind, and we made it clear, Mr. Hardington made it clear in that hearing, that we did not concede the trustworthiness of those opinions.

Byron R. White:

On what basis did you want the Plaintiffs’ letter in?

Dennis K. Larry:

Your Honor, the letter we wanted in because Beech had introduced Rainey’s letter.

Anthony M. Kennedy:

Had they?

They had asked him questions about the letter.

Dennis K. Larry:

They did–

They had not introduced the letter.

Dennis K. Larry:

–They introduced the letter, not the document.

But by the verbatim reading from it, with the letter in front of them, saying

“Mr. Rainey, did you not say as follows. “

reading verbatim what he said.

William H. Rehnquist:

Reading verbatim from the letter or the document?

Dennis K. Larry:

From the letter, the document itself.

William H. Rehnquist:

Is there a separate document?

When you say the document are you referring to the letter?

Dennis K. Larry:

I’m referring to the letter.

The letter was part of the JAG composite.

All the enclosures included that Lieutenant Commander Rainey had written to the JAG a letter concerning what his investigation, although not an eyewitness–

Anthony M. Kennedy:

And you want us to say that when a counsel reads from a document and asks the witness if he made the statement, that that’s introducing the document?

Dennis K. Larry:

–Yes, your Honor.

I do ask you to say that, because in effect what they did was avoid putting it in, by reading it.

But it came to the jury with the very same wording that was in the letter.

And all we asked to do, immediately following that, on redirect, was to say, you’ve been asked these questions that support, we didn’t say these words, but supported Beech’s theory of the case.

Did you not also say, in your letter?

And I began to read verbatim from that.

Anthony M. Kennedy:

So you didn’t ask for it to be introduced, either?

Dennis K. Larry:

I asked for the opportunity to read it in the same way Beech had done.

Sandra Day O’Connor:

But not to put the letter in?

And I gather, also, not ever referring, for the benefit of the trial court, to Rule 106?

Dennis K. Larry:

Your Honor, I never mentioned the rule to the judge, but he had the benefit of my thinking, which really went to the substance of 106.

What I said to the judge was,

“your Honor, he has had the ability. “

this is at page 77 of the joint appendix, and Mr. Toothman for Beech said: “I object to his arguing”.

I said to the judge,

“May I be heard on this? “

The Court said,

“Yes, sir, go ahead. “

Whereupon I said,

“On the basis that this letter constitutes an admission by Commander Rainey, he has been asked to answer every single question Mr. Toothman had, respecting. “

and I was then cut off by the judge.

William H. Rehnquist:

Well, but surely there are countless rules of evidence.

William H. Rehnquist:

By number, you can’t think that a statement like that is like saying this should come in under Rule 106.

Dennis K. Larry:

Your Honor, it is true that I didn’t use those words, and I don’t believe that the prevailing authority requires that at that time, I cite a rule of evidence.

I think that what it requires is that I make known to, under 103, make known to the judge what the substances of the testimony I want to elicit from the witness is.

That, the Eleventh Circuit found, I did, by the way in which the question was framed.

William H. Rehnquist:

What were you referring to as the prevailing authority?

A case from this Court?

Dennis K. Larry:

There are, no, there are a number of cases cited in the briefs, going to the 106 issue, and the only case that I found that held that the party not only had to tell the judge what the substance was, but also why… whether a specific rule had to be mentioned… was the case of Tate v. Robbins & Meyers, which is a First Circuit case in 1986, found at 709 F 2nd 10.

And that was the only case that I found cited.

William H. Rehnquist:

Thank you, Mr. Larry.

Your time has expired.

Mr. Womack, you have two minutes remaining.

Joseph W. Womack:

With the Court’s permission, I made the decision to call Mr. John Rainey as an adverse party, since he had not testified at all, called for the purpose of getting him to make admissions against interest, which I thought were contained in the letter which he had written.

The witness was shown two documents.

One was a statement from the Marine captain named Guthrie, the other was the letter which he, Mr. Rainey, had written, and which he and Mrs. Knowlton had signed.

That is the one that’s in issue here.

Byron R. White:

Well, you objected to the jury hearing the statement by Rainey that he didn’t think it was pilot error?

Joseph W. Womack:

I objected to his making the statement that the cause of the accident was rollback which is a technical term.

Byron R. White:

And not pilot error?

Joseph W. Womack:

Yes, sir.

Byron R. White:

And why did you object to that?

Joseph W. Womack:

Why did I object to it?

Because he was not qualified.

Byron R. White:

So he’s not qualified as an expert?

Is that it?

Joseph W. Womack:

Yes, sir.

He was not qualified.

Byron R. White:

But the investigator, the JAG investigator, was an expert?

Joseph W. Womack:

That comes in under the… a separate route, if I may put it that way, under the rule as we understood it.

But you don’t take a lay witness–

Byron R. White:

Well, I know but–

Joseph W. Womack:

–and guess him to fall into the same category.

Byron R. White:

–I know but why did he have to be an expert to testify as to a fact–

Joseph W. Womack:

Because the engine testimony–

Byron R. White:

–And rather than an opinion, was this opinion what you were objecting to?

Joseph W. Womack:

–Opinion, yes sir.

Byron R. White:

You mean this was… the cause… his statement about the cause of the accident was an opinion?

Joseph W. Womack:

Yes, sir.

Byron R. White:

Just like that was in the JAG expert, it was an opinion?

Not a fact?

Joseph W. Womack:

Yes, your Honor, but one was qualified under the rule, and one was not, in my judgment.

William H. Rehnquist:

Thank you, Mr. Womack.

The case is submitted.