Brennan v. Horsefeathers, et al.

2002 DNH 123

• Court: District Court, D. New Hampshire
• Decided: June 12, 2002
• Docket: CV-01-036-B
• Status: Published

Opinion

Brennan v. Horsefeathers, et al. CV-01-036-B 06/12/02

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stephen Brennan

v. Civil N o . 01-036-B Opinion N o . 2002 DNH 123 Horsefeathers, Inc., Brendan Hawkes, Brooke Pearson, David R. Brown, and Michael Venditti

MEMORANDUM AND ORDER

Plaintiff Stephen Brennan has sued the North Conway

restaurant Horsefeathers, Inc., and the bartenders who work

there, alleging violations of New Hampshire Rev. Stat. Ann. 507-

F:4, which prohibits serving alcohol to visibly intoxicated

patrons, and seeking damages for injuries he argues were

proximately caused therefrom. Before me is Brennan’s pretrial

motion requesting an evidentiary ruling that would permit him to

introduce at trial two documents. The first document is a

“Report of Violation” (the “Report”) completed by an investigator

for the New Hampshire Liquor Commission (the “Commission”), and

contains the results of interviews with witnesses as well as the investigator’s opinions concerning the events that took place on

the night in question. The second document is an order dated May

2 7 , 1999 issued by the Commission memorializing the terms of a

settlement agreement it reached with Horsefeathers. The order

reflects that the Commission voted to issue a suspension of

liquor license and to impose a fine in response to its finding

that Horsefeathers violated N.H. Rev. Stat. Ann. 179:5, allowing

service of alcoholic beverages to an intoxicated person.

Federal Rule of Evidence 803(8) permits the admission of

public records and reports that set forth “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.” The Supreme

Court has held that the term “factual findings” can include

conclusions and opinions, so long as the underlying information

is trustworthy.1 See Beech Aircraft Corp. v . Rainey, 488 U.S.

153, 162, 167-68, 170 (1988). The defendants, apparently for

1 Factors to consider when determining trustworthiness include: “(1) the timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation.” Beech Aircraft, 488 U.S. at 167 n.11.

-2- tactical purposes, or because they agree with the contents,

concede that the factual information contained in the Report and

the investigator’s opinions are admissible.2 Nevertheless, they

argue that identifying a Liquor Commission investigator as the

source of the Report would cause them unfair prejudice. I assume

that defendants base their argument on Federal Rule of Evidence

403, which states that “evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice. . . .” Because defendants agree that the Report’s

findings should be admitted, the jurors must be told that the

report was prepared by a government investigator conducting an

official investigation. Otherwise, they would be unable to

determine what weight, if any, to give to his findings.

2 The First Circuit has concluded that hearsay statements of third persons appearing in public records are not admissible where the report contains no findings. See United States v . Mackey, 117 F.3d 2 4 , 28-29 (1st Cir. 1997). It has also determined, however, that a report’s opinions or conclusions are admissible even though they are based on hearsay “[a]s long as the conclusion is [1] based on a factual investigation and [2] satisfies [Rule 803(8)’s] trustworthiness requirement.” Lubanski v . Coleco Industries, Inc., 929 F.2d 4 2 , 45 (1st Cir. 1991). The court has not yet considered whether hearsay statements that serve as the basis for admissible conclusions are also admissible. Because the defendants don’t contest the admissibility or trustworthiness of the Report’s hearsay statements, I will not analyze this issue further.

-3- Moreover, any unfair prejudice can be avoided by a limiting

instruction. Thus, I reject defendants’ challenge because the

probative value of the evidence they seek to exclude is not

substantially outweighed by the danger of any unfair prejudice

that they would suffer if the evidence is admitted.

Defendants also object to the admission of the Commission’s

order. The Commission based its order on a settlement agreement

in which the defendants did not admit liability. It never held

an evidentiary hearing on the matter, and its order does not

contain factual findings resulting from an investigation.

Without these safeguards, the order does not satisfy Rule

803(8)’s trustworthiness requirement.3 See Beech Aircraft, 488

U.S. at 162, 167-68 & n.11, 170.

SO ORDERED.

Paul Barbadoro Chief Judge

June 1 2 , 2002

3 Plaintiff does not argue that the Commission’s order is admissible under a collateral estoppel theory. Thus, I do not consider this issue.

-4- cc: Kenneth M. Brown, Esq. Brian T . McDonough, Esq.

-5-