Anunciacao v. Caterpillar Inc.

Filing 259

Ch. Magistrate Judge Judith G. Dein: MEMORANDUM OF DECISION AND ORDER entered granting in part and denying in part #193 Defendants' Motion in Limine to Exclude Portions of OSHA Reports Related to the Accident. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CARLOS ANUNCIACAO, et al.,
Plaintiffs,
v.
CATERPILLAR INC., et al.,
Defendants and
Third-Party Plaintiffs,
ALEX LYON & SON SALES
MANAGERS & AUCTIONEERS, INC.,
et al.,
Third-Party Defendants.

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CIVIL ACTION
No. 07-10904-JGD

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’
MOTION IN LIMINE TO EXCLUDE PORTIONS OF OSHA REPORTS
November 22, 2011
DEIN, U.S.M.J.
This matter is before the court on the Caterpillar defendants’ Motion in Limine to
Exclude Portions of the OSHA Reports Related to the Accident (Docket No. 193). For
the reasons detailed herein, the motion is ALLOWED IN PART and DENIED IN PART
as follows:
1.

The two (2) statements in the report at the Opening Conference Notes and

¶ 20 to the effect that “They situated themselves immediately behind the machine directly
in the path of the track and in operator’s blind spot at about 4' from the track” (typo-

graphical errors corrected) are admissible and will not be stricken. Pursuant to Fed. R.
Evid. 803(C), government reports setting forth “factual findings resulting from an
investigation made pursuant to authority granted by law” are admissible, “unless the
sources of information or other circumstances indicate lack of trustworthiness.” Thus,
“portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not
inadmissible merely because they state a conclusion or opinion. As long as the
conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness
requirement, it should be admissible along with other portions of that report.” Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S. Ct. 439, 450 (1988). Here, the
statements appear to be factual findings made by the OSHA officer after he observed the
scene and interviewed a number of witnesses shortly after the accident. They do not
appear to be hearsay statements made by one witness. Rather, the statements regarding
the location of the plaintiff at the time of the accident are “essentially an evaluative
opinion resulting from evidence” and are admissible. See Baker v. Elcona Homes Corp.,
588 F.2d 551, 557-58 (6th Cir. 1978). Moreover, this court concludes that the report
satisfies the Rule’s trustworthiness requirement. The interviews took place promptly
after the accident, the investigation was conducted by a government agent with
responsibility for evaluating workplace accidents, and this court has no reason to question
the officer’s motivation. See id. (identifying some of the factors which may be
considered in assessing trustworthiness). Moreover, this court notes that the OSHA
officer’s factual findings are consistent with some, but not all, of the deposition testimony
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of witnesses who were present at the time of the accident. Where, as here, the officer
gathered information from several sources, did “not neglect one source or prefer one
source over the other,” and there is no evidence that the officer “made his report with any
improper motive or that he was biased in favor of one party or prejudiced against a
party,” the factual findings are admissible. See Schwartz v. United States, 149 F.R.D. 7,
10 (D. Mass. 1993).
2.

The machine operator’s statement that “he would not have expected [the

plaintiff] to be in his blind spot and should have known better” will be redacted by
agreement.
3.

The officer’s sketch of the accident scene is redacted by agreement.

4.

The statement that the plaintiff “had his shattered leg amputated at the

knee” will not be stricken. It is undisputed that the plaintiff’s leg was run over by a
heavy piece of construction equipment and that it was amputated below the knee. The
statement that the leg was “shattered” was clearly not intended to be a medical diagnosis
and no one would read the report that way. There is no reason to redact this statement.
SO ORDERED.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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