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Paulos v. Covenant Transport2/20/2004
of the Utah Rules of Evidence. The trial court overruled Covenant's relevancy objection, but agreed that the information from the handbook was admissible under rule 803(18). Therefore, the court allowed Paulos's expert to read from the ATA handbook, as well as to display the relevant portions to the jury. Because it was admitted under rule 803(18), the court did not receive the ATA handbook as an exhibit to be used by the jury in its deliberations.
Utah Rule of Evidence 803(18) contains the hearsay exception for learned treatises:
The following are not excluded by the hearsay rule . . . :
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
Utah R. Evid. 803(18) (emphasis added).
As explained by the Utah Supreme Court in Butler v. Naylor, 1999 UT 85, 987 P.2d 41, " he rule prohibits the admission of published treatises as exhibits." Id. at . Paulos relies on Butler for the proposition that the ATA handbook is not a learned treatise because it is not "on a subject of history, medicine, or other science or art." Utah R. Evid. 803(18). Covenant relies on Butler for the proposition that, as a learned treatise, the ATA handbook "may not be received as exhibit ." Id.
Butler cites rule 803(18), which arguably limits its application to subjects of "history, medicine, or other science or art." Utah R. Evid. 803(18). The rule, however, can be interpreted to include the ATA handbook. Because this rule is identical to the federal rule, federal cases are instructive. See LeVanger v. Highland Estates Props. Owners Ass'n, 2003 UT App 37, , 80 P.3d 569. In Johnson v. William C. Ellis & Sons Iron Works, Inc., 609 F.2d 820 (5th Cir. 1980), the court applied the federal learned treatise exception to a number of safety publications. "We have held that safety codes and standards are admissible when they are prepared by organizations formed for the chief purpose of promoting safety because they are inherently trustworthy and because of the expense and difficulty involved in assembling at trial those who have compiled such codes." Id. at 822; see also Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1229 (5th Cir. 1984) (" afety codes have traditionally been treated as coming within the learned treatise exception provided by Rule 803(18)."). In Johnson, the trial court refused to allow a number of safety codes and handbooks into evidence because it was relying on state case law from Mississippi, rather than federal law. The state case on point, Catholic Diocese v. Jaquith, 224 So.2d 216 (Miss. 1969), "held that governmental safety codes and regulations [were] admissible in evidence only when they have been given compulsory force by the state legislature, and that only treatises dealing with the 'exact sciences' may be admitted." Johnson, 609 F.2d at 822. The Johnson court, however, applied federal law and held that the information from the publications was covered by rule 803(18). Id. at 823.
Although no Utah case explicitly extends rule 803(18) to include non-governmental safety codes or nonscientific safety codes, the ATA handbook is of the same nature as the other materials explicitly mentioned in the learned treatise exception. We therefore believe that the ATA
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