HINTON v. OUTBOARD MARINE CORPORATION et al

Filing 161

ORDER dismissing without prejudice 127 Request that the Court Take Judicial Notice of Applicable Regulations, Industry Standards and Documents. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

MICHAEL HINTON,
Plaintiff,
v.
OUTBOARD MARINE
CORPORATION, et al.,
Defendants.

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1:09-cv-00554-JAW

ORDER ON REQUEST FOR JUDICIAL NOTICE
Faced with a motion demanding that the Court take judicial notice of thirtyone separate pieces of evidence, the Court dismisses the motion without prejudice to
allow the parties to discuss what evidence is truly in dispute and to require the
movant to sharpen his request to those items properly subject to judicial notice.
I.

BACKGROUND
On January 3, 2012, Outboard Marine Corporation and OMC Recreational

Boat Group, Inc. (collectively OMC) moved the Court to take judicial notice of
thirty-two documents, regulations, industry standards, and facts relating to a
rapidly approaching products liability trial. Defs.’ Req. that the Ct. Take Judicial
Notice of Applicable Regulations, Industry Standards and Documents (Docket # 127)
(Defs.’ Mot.). On January 13, 2012, Mr. Hinton filed a response, agreeing to some
but objecting to most of OMC’s requests. Pl.’s Mem. Of Law in Opp’n to Defs.’ Req.

that the Ct. Take Judicial Notice of Applicable Regulations, Industry Standards and
Documents (Docket # 150) (Pl.’s Opp’n).
II.

DISCUSSION
Rule 201 provides in part:
(b) Kinds of Facts That May Be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute because
it:
(1) is generally known within the trial court’s territorial
jurisdiction;
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is
supplied with the necessary information.

FED. R. EVID. 201.

The things that OMC proposes for judicial notice can be

characterized as follows: (1) public documents; (2) official records; (3) court records;
(4) a photograph; (5) federal regulations; (6) American National Standards Institute
(ANSI) Standards; (7) corporate records, and (8) the hull number of the Sprague
vessel involved in the accident.
Preliminarily, the Court agrees with Mr. Hinton that most of these categories
are not properly subject to judicial notice under Rule 201.

As the Advisory

Committee has noted, “[t]he usual method of establishing adjudicative facts is
through the introduction of evidence, ordinarily consisting of the testimony of
witnesses.”

FED. R. EVID. 201 advisory committee’s note (1972).

Committee further commented:

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The Advisory

If particular facts are outside the area of reasonable controversy, this
process is dispensed with as unnecessary. A high degree of
indisputability is the essential prerequisite.
Id. Here, Mr. Hinton has expressed a determination to dispute most of the facts
that OMC claims are undisputed.

Pl.’s Opp’n at 2-4.

The First Circuit has

cautioned that “[c]ourts have tended to apply Rule 201(b) stringently—and well
they might, for accepting disputed evidence not tested in the crucible of trial is a
sharp departure from standard practice.” Lussier v. Runyon, 50 F.3d 1103, 1114
(1st Cir. 1995).

Furthermore, judicial notice, as opposed to other means of

admission, requires the Court to intervene in the parties’ presentation of evidence
and instruct the jury to accept certain facts as evidence. If done by stipulation, the
jury understands that the Court is acting by agreement of the parties; if done by
judicial notice, the jury could be confused about the Court’s impartiality.
The Court observes that in asking for judicial notice, OMC is doing things the
hard way. Most of these matters may be admitted under different rules of evidence.
See FED. R. EVID. 803(6) (records of a regularly conducted business activity); FED. R.
EVID. 901 (authenticating or identifying evidence); FED. R. EVID. 902(1) (domestic
public documents that are sealed and signed); FED. R. EVID. 902(2) (domestic public
documents that are not sealed but are signed and certified); FED. R. EVID. 902(4)
(certified copies of public records). At the same time, some requests, such as Code of
Federal Regulations provisions on hull identification numbers or the date the
Plaintiff filed the Complaint, may properly fit within the narrow confines of Rule
201(b). See Northern Heel Corp. v. Compo Indus., 851 F.2d 456, 468 (1st Cir. 1988)
(“The OSHA regulations themselves were subject to judicial notice”); Doustout v.
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G.D. Searle & Co., 684 F. Supp. 16, 17 n.1 (D. Me. 1988) (“The Court is entitled to
take judicial notice of all related proceedings and records in cases before the same
court.”).
But as framed, the motion is overbroad and the Court dismisses it without
prejudice. The Court directs counsel for OMC and counsel for Mr. Hinton to discuss
the evidence that is the subject of this motion and determine whether it really is
disputed.

Typically, as trial approaches, evidentiary positions hardened by

advocacy soften with the impending reality of discretionary judicial rulings and
with the stark necessity of cooperation is even between adversaries. The Court
reminds counsel for both sides that the standards for judicial notice under Rule 201
are so strict that, if judicial notice should be taken, the Court will wonder why the
lawyers could not agree on something that is indisputable. If these evidentiary
snags prove intractable, the Court directs OMC to determine whether judicial
notice—as opposed to other more common avenues of admission—is truly proper
within the substantial constraints of the Rule. OMC is free to reinitiate its request
for judicial notice on a more focused basis but with trial looming on Monday,
January 30, 2012, they must do so no later than the end of the day on Wednesday,
January 25, 2012.
III.

CONCLUSION
The Court DISMISSES without prejudice the Defendants’ Request that the

Court Take Judicial Notice of Applicable Regulations, Industry Standards and
Documents (Docket # 127).

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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 20th day of January, 2012

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