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Needham v. Coordinated Apparel Group6/28/2002
y representative stated that the flammability standard lacked precision, but that proposed modifications unfairly promoted other fibers over cotton. He also testified that these statements, as well as those of government officials, were relied upon by him in forming his opinion that the flammability standard was inadequate.
Later, plaintiffs' counsel returned to the subject, asking defendants' expert witness - over objection - whether he was aware that the cotton industry had spent "great time and money" to influence politicians with respect to the flammability standards. When that question did not produce an affirmative response, counsel walked the witness through the testimony of the National Cotton Council representative at the 1967 subcommittee hearing. Following the testimony of defendants' expert witness, counsel offered the transcript of the subcommittee hearings, asserting that the transcript fit within hearsay exceptions in V.R.E. 803(8) (public records) & (16) (ancient documents) and was self-authenticating under V.R.E. 902(5). Over objection, the court admitted the entire transcript.
Defense counsel returned to the issue the next day, and before the transcript was to go to the jury for deliberation, and reiterated that the transcript fit within no hearsay exception and contained extensive advocacy statements like those summarized above. The court suggested redaction of all but the statement of the industry representative, but plaintiffs' counsel objected to this limitation, saying the document had "good and bad . . . for everybody." The court and plaintiffs' counsel then engaged in the following colloquy, which became the ruling of the court:
THE COURT: If I remember the cross-examination right, Mr. Hemley's point was to try to get Dr. LeBlanc to concede that there are a lot of industry pressures being brought to bear in 1967 when the act was up for reconsideration. And, you know, I think that's a fair point.
But I didn't understand the - the offer to be that what so-and-so witness said was - was true and should be accepted by the jury as true. It was simply to point out that this is a congressional hearing where there are pressures being brought to bear on the politicians. Hardly any surprise there.
MR. HEMLEY: That's precisely correct. I'm not suggesting that any of these statements are or are not true.
THE COURT: And I think because of the limited purpose for which it's being offered I'm going to overrule the objection. But I don't think that - I'm not saying that Mr. Hemley should be waving that document in front of the jury saying look what this guy said back in 1967, that this product is unsafe and, you know, there are "x" number of injuries and so forth. This was not the reason why it was introduced.
So I agree with Mr. Goldman as to the - the details. But the document is in evidence for the limited purpose for which it was offered and I'll expect that you will tailor your argument to reflect that - that limited purpose.
In closing argument, plaintiffs' counsel did precisely what the court prohibited. He argued:
ou will have in the jury room Exhibit No. 66 which are the hearings before Congress in 1967 that were - when Congress was considering amending the act to make it more protective of people, the ordinary people like ourselves. And you'll be able to read that to yourselves in the jury room.
One of the things that you'll be able to see is that William Siegel who was head of the Cotton Council of America, the same organization you will remember that Dr. LeBlanc worked for and which promotes the interest of cotton in the United States, when he was testifying
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