Opinion
No. 1:95-CV-266.
9-19-2002
HICKSON CORP., Plaintiff and Counterdefendant, v. NORFOLK SOUTHERN RAILWAY CO., Defendant and Counterclaimant.
On April 29, 2002, the Court issued rulings from the bench on two important evidentiary issues. In the first ruling, the Court allowed the Hickson Corporation ("Hickson") to introduce evidence of a felony conviction sustained by the Norfolk Southern Railway Company ("Norfolk Southern") to impeach evidence the railway company introduced tending to show its good character for environmental stewardship. In the second ruling, the Court allowed Hickson to introduce certain findings of the National Transportation Safety Board ("NTSB") related to the arsenic acid spill giving rise to this lawsuit for the limited purpose of rebutting the inference created by Norfolk Southern's introduction of a letter written by Jim Hall, the Director of the NTSB, praising Norfolk Southern's clean-up efforts. On May 1, 2002, upon Norfolk Southern's renewed objection to the introduction of an excerpt from the NTSB findings, the Court reaffirmed its second ruling. This Order elucidates the rationale behind the Court's decisions.
I. PROCEDURAL HISTORY
On March 15, 2002, prior to the beginning of the retrial of this matter, Hickson moved in limine to exclude any reports of the NTSB and any testimony based on those reports pursuant to 49 U.S.C. § 1903 (Court File Nos. 729-30). Norfolk Southern responded, stating it had no intention of offering any NTSB reports (Court File No. 737).
Norfolk Southern filed a similar motion in the first trial (Court File No. 425).
On April 22, 2002, during its case in chief, Norfolk Southern offered the testimony of Joe Oliver, an engineer employed by Norfolk Southern's environmental operations group. Mr. Oliver testified:
Norfolk Southern — and I'm proud to say this — we have won the gold medal for safety for 12 consecutive years. Our railway is the safest railway industry in the nation.
. . . . .
[The award is] called the E.H. Harriman award. The Harriman award is presented to the different classes of railroads. And there's basically three classes. You've got your big Class 1 carriers, you've got your small senior medium-sized railroads, and then you've got your short lines. For Class 1 railroads we have won the gold medal for 12 consecutive years. And that, to me, says everything about your safety program.
Prior to us getting on this run of winning this award so many years in a row, I think the most that anybody had ever won it was maybe two or three times in a row. So we're on a roll. And we're very, very proud of our safety record. We have set a new benchmark in the industry, and we're very proud of it. It's been difficult to achieve, but we have worked to make sure our employees are safe.
(Exh. A, Uncertified Realtime Transcript, Apr. 22, 2002, at 70-71).
On April 25, 2002, during its case in chief, Norfolk Southern offered, via deposition, the testimony of Jack Waters, Norfolk Southern's superintendent of terminals in Chattanooga. Norfolk Southern queried Mr. Waters about a visit to the deButts yard made by Jim Hall. Norfolk Southern asked Mr. Waters about a letter Mr. Hall sent to him following the visit. In the letter, Mr. Hall praised the company's clean-up efforts at the deButts yard. Hickson objected to the questions about Mr. Hall's letter, arguing Mr. Hall's praise of Norfolk Southern's clean-up efforts improperly implied a finding of the NTSB and that such findings are not admissible pursuant to 49 U.S.C. § 1154(b). Hickson contended Mr. Waters's testimony about the letter, if allowed, would necessarily open the door to its introduction of NTSB findings to rebut Mr. Hall's praise. Norfolk Southern responded that the letter, which it offered to show its cooperation with the NTSB, fell within a hearsay exception (Exh. B, Uncertified Realtime Transcript, Apr. 25, 2002, at 179; Exh. F, Uncertified Realtime Transcript, May 1, 2002, at 30). The Court overruled Hickson's objection but warned the letter "may also be character evidence" (Exh. B, at 180), such that the introduction of the letter might open the door to Hickson's limited use of the NTSB findings as rebuttal evidence (Exh. B, at 181). Despite the Court's warning, Norfolk Southern introduced the letter.
At the time the letter was written, Mr. Hall was the head of the NTSB. This position was a presidential appointment that required the confirmation of the Senate. Mr. Hall is a lifelong resident of the Chattanooga area. He has been a prominent member of the community for a number of years and has been favorably considered for a number of political positions, both statewide and nationwide. He is widely known and respected in this community. It is reasonable to assume that many of the jurors would be familiar with Mr. Hall, at least by reputation.
On April 29, 2002, during its cross-examination of Henry Wyche, who at the time of the spill was Norfolk Southern's assistant vice president in charge of environmental protection, Hickson pursued a line of questioning designed to elicit testimony about Norfolk Southern's conviction of a felony in 1989 for the improper disposal of paint at a rail yard in Moberly, Missouri (Exh. C, Uncertified Realtime Transcript, Apr. 29, 2002, at 102). Norfolk Southern objected, arguing the evidence should be excluded pursuant to Rule 609 and/or Rule 403 of the Federal Rules of Evidence. Hickson contended the evidence should be allowed to impeach Norfolk Southern's testimony through its representatives and to rebut the character evidence developed through the testimony of Mr. Oliver and the letter of Mr. Hall.
Later on the same day, Hickson informed the Court it desired to rebut Mr. Waters's testimony about Mr. Hall's letter by introducing certain findings of the NTSB. Norfolk Southern objected, stating the Court would introduce error into the record should it admit the NTSB findings. Moreover, Norfolk Southern argued, if any portion of the NTSB report were admitted, then the entire report would need to be admitted.
The Court issued the following ruling from the bench:
Before we recessed for lunch, Hickson Corporation moved the Court to admit evidence of Defendant Norfolk Southern Railway's prior felony conviction. Hickson argues this evidence is admissible to counter evidence of Norfolk Southern's good character
Such evidence is impeachment and is governed by Federal Rule of Evidence 609. Evidence of a prior felony conviction is admissible under Rule 609 if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted.
Since we're dealing with a corporation here, the distinction between a felony conviction and a misdemeanor is the amount of the imposable fine. It is conceded that this conviction is a felony conviction. Hickson sought to use the evidence in its cross-examination of the present witness, a former officer and employee of Norfolk Southern. The conviction pertains to Norfolk Southern and not the witness. The Court notes Rule 609 only refers to the credibility of witnesses and not the credibility of corporations.
The Court has been unable to locate any case that has dealt with the applicability of Rule 609 to a corporation; however, the Court realizes a corporation can only act through the words and actions of its officers, agents, and employees. When such officers, agents, and employees testify on behalf of the corporation, in reality it is the corporation testifying. In such cases it would be reasonable to allow impeachment just as if the corporation was a person. Any other ruling would give the corporation an unreasonable advantage under Rule 609 as compared to a natural person.
Alternatively, even if Rule 609 is determined not to apply to the circumstances of this case, the Court will still find the prior conviction relevant under Federal Rule of Evidence 401.
Norfolk Southern has already introduced evidence interjecting its good character into the trial. Specifically it has introduced evidence it has won a safety award for a period of several consecutive years and is the only railroad company in the country to have achieved this accomplishment. It has also introduced evidence that Jim Hall, the former head of the National Transportation Safety Board, praised Norfolk Southern for its cleanup efforts for the accident in this case. Thus, Norfolk Southern has made its good character for safety an issue subject to impeachment. Its felony conviction for an environmental violation speaks directly to the issue of its credibility regarding its good character for safety and its response to the spill involved here. Any prejudicial effect of this conviction does not substantially outweigh its probative value. Therefore, the Court will allow Hickson to use the prior conviction under Rule 403 of the Federal Rules of Evidence.
As the Court just indicated, Norfolk Southern introduced a letter written by Jim Hall, the former head of the National Transportation Safety Board. This letter praised Norfolk Southern for its cleanup efforts for the accident in this case. Plaintiff Hickson Corporation moved the Court to admit the specific findings of the National Transportation Safety Board in order to rebut this evidence.
Normally no portion of a report of the NTSB is admissible pursuant to statute, that is, 49 United States Code, Section 1903. The jury, having heard this evidence of Jim Hall's letter, would be entitled to infer from this letter that the NTSB found no fault with Norfolk Southern's efforts in cleaning up the spill. To the extent their findings of the NTSB contradict this inference, simple fairness dictates that Hickson should be allowed to do so. The Court therefore will admit the specific findings of the NTSB report for the limited purpose of rebutting Jim Hall's statements in his letter to Norfolk Southern.
(Exh. D, Uncertified Realtime Transcript, Apr. 29, 2002, at 116-19).
On April 30, 2002, Norfolk Southern renewed its objection to the admission of the Rule 609 evidence. After hearing further arguments, the Court adhered to its earlier decision (Exh. E, Uncertified Realtime Transcript, Apr. 30, 2002, at 13).
On May 1, 2002, during its cross-examination of Mr. Wyche, Hickson moved the admission of an excerpt of the NTSB findings. Norfolk Southern renewed its objections based on 49 U.S.C. § 1154(b), arguing all the conclusions of the NTSB should be admitted if any were. The Court responded by restating its previous decision:
As counsel for Norfolk Southern stated, there is a federal statute that prohibits the introduction into evidence of the NTSB report. However, Norfolk Southern in this case introduced a letter from Jim Hall, who at the time was the head of the NTSB, and this letter made reference to how Norfolk Southern had conducted itself with regard to the cleanup. The Court admitted that letter over objection from Hickson Corporation. In the interest of fairness, the Court believes that it is only appropriate to allow Hickson to introduce anything in the report itself that in any way contradicts the contents of the letter from Mr. Hall. The Court believes that this limited exception is authorized by the case law construing that statute. But that would not open the door for the introduction of any other portion of the report. That was the decision of the Court previously. The Court reaffirms that decision, and the Court will issue a written memorandum and order elaborating on the rationale for its decision. So the findings, to the extent that they would allow inferences contrary to what was contained in Jim Hall's letter, are admitted.
(Exh. F, at 26-27).
H. ANALYSIS
A. Norfolk Southern's Prior Conviction
Under Rule 609 of the Federal Rules of Evidence, a party may introduce evidence of a witness's prior felony conviction, subject to the requirements of Rule 403, to attack the witness's credibility. The Court has not found case law applying Rule 609 to a corporation. This dearth of precedent is not surprising, of course, given that an inanimate corporation cannot itself be a witness. Because a corporation speaks through its officers, employees, and other agents, however, it stands to reason a corporation can be a vicarious witness. The Court concludes, therefore, Rule 609 allows the use of a corporation's felony conviction to impeach the corporation's vicarious testimony.
Rule 609 provides:
For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused. ...
Fed.R.Evid. 609.
Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste or time, or needless presentation of cumulative evidence.
Fed.R.Evid. 403.
The Court notes one federal appellate court has held a corporation's conviction cannot be used to impeach an individual employee witness who had not participated in the criminal conduct at issue. See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 523-24 (3d Cir.1997). The situation in Walden, however, involved the use of a corporate conviction to impeach an employee — not the employee's employer. For this reason, the Court finds Walden inapropos.
Indeed, if the Court were to read Walden as broadly as Norfolk Southern suggests — that is, standing for the proposition Rule 609 never applies to corporations because they cannot be actual witnesses — the self-professed credibility of a corporation for a particular character trait could never be impeached with evidence of past felonious malfeasance.
In this case, Hickson sought to introduce evidence of Norfolk Southern's felony conviction after Joe Oliver, an employee of Norfolk Southern, testified about the company's good environmental and safety record, and Jack Waters, an employee of Norfolk Southern, testified about a letter he received from Jim Hall praising the company's clean-up efforts at the deButts yard. Unlike the circumstances in Walden, Hickson's apparent intent was to impeach Norfolk Southern, not a particular witness. Indeed, Hickson sought to introduce the evidence through Henry Wyche, another Norfolk Southern employee. Hence, it cannot be said Hickson attempted to use the evidence to impeach either Messrs. Oliver or Waters.
When Mr. Oliver testified about Norfolk Southern's twelve-year run of awards for safety, and when Mr. Waters testified about Mr. Hall's praise of Norfolk Southern's clean-up efforts, they testified as representatives of Norfolk Southern. More to the point, their testimony placed Norfolk Southern's credibility at issue. Speaking through its agents, Norfolk Southern told the jury the company had a good environmental and safety record. The Court therefore concluded Hickson should be allowed to use the evidence of the prior felony conviction to impeach Norfolk Southern's vicarious testimony. Because the probative value of Norfolk Southern's felony conviction was not substantially outweighed by its prejudicial effect, the Court further concluded Rule 403 should not bar its admission.
B. The NTSB Findings
No part of a report of the [NTSB], related to an accident or an investigation of an accident, may be admitted as evidence or used in a civil action for damages resulting from a matter mentioned in the report.
49 U.S.C. § 1154(b). Congress enacted this rule because "NTSB investigatory procedures are not designed to facilitate litigation." Chiron Corp. & PerSeptive Biosys., Inc. v. NTSB, 198 F.3d 935, 940 (D.C.Cir.1999). Section 1154(b) also serves to prevent the use of NTSB reports in a manner that would encroach on the province of a judge or jury. See Lobel v. American Airlines, 192 F.2d 217 (2d Cir. 1951). Although NTSB findings are inadmissible, the admission of factual data from NTSB investigations is not barred by § 1154(b), as the NTSB made clear in a regulation promulgated in 1975:
Accident, for purposes of this part includes "incident."
Board accident report means the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer format ("briefs" of accidents). Pursuant to section 701(e) of the Federal Aviation Act of 1958 (FA Act), and section 304(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1154(b)) (Safety Act), no part of a Board accident report may be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports.
Factual accident report means the report containing the results of the investigator's investigation of the accident. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident reports. In the case of a major investigation, group chairman factual reports are factual accident reports
49 C.F.R. § 835.2 (2001); see also Chiron Corp., 198 F.3d at 940 (explaining earlier courts unnecessarily labeled the admission of such factual findings an exception to § 1154(b), erroneously confusing investigators' findings with findings of the NTSB).
Had the Court considered only the plain language of § 1154(b), it would not have admitted any portion of the NTSB report into evidence. However, the circumstances created by Norfolk Southern required the Court to admit otherwise inadmissible evidence to cure the prejudicial inference that arose when Norfolk Southern introduced Mr. Hall's letter over Hickson's objection and despite the Court's warning about the consequences. Because a reasonable juror would infer from Mr. Hall's letter the NTSB found Norfolk Southern's clean-up efforts not just adequate but laudable, the Court determined it needed to allow a limited portion of the NTSB report to counter the inference. The Court's decision was guided, in no small part, by Mr. Hall's special status in the Chattanooga area as a local boy made good. Given this status, the Court concluded the jury would reasonably equate Mr. Hall's praise of Norfolk Southern with the NTSB's official approval of Norfolk Southern's conduct in cleaning up the leak. In short, the Court determined it needed to admit certain NTSB findings to remove the prejudice injected by Norfolk Southern's use of Mr. Hall's letter. See 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure § 5039, at 204-05 (1977).
Under the law of the United States Court of Appeals for the Sixth Circuit, the rule of completeness does not justify the admission of the NTSB report. Rule 106 of the Federal Rules of Evidence provides:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Fed.R.Evid. 106. There is a split of opinion among the federal appellate courts as to whether Rule 106 merely regulates the order of proof or makes admissible that which otherwise would not be. The Sixth Circuit falls within the former camp. See United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982) ("The rule covers an order of proof problem; it is not designed to make something admissible that should be excluded."); see also Polk v. Yellow Freight Sys., Inc., 876 F.2d 527, 532 (6th Cir.1989) (stating Rule 106 does not allow the use of otherwise inadmissible evidence for completeness "just because part of a document may be utilizable for impeachment purposes"). But see 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure § 5078 (1977 & 2002 Supp.) (arguing the "order of proof" analysis adopted by the Sixth Circuit (among others) is erroneous).
In any event, to the extent the Court's decision constituted error, it appears to be error invited by Norfolk Southern's own actions and insistence on introducing Mr. Hall's letter:
Under the "invited error" doctrine, it is an accepted matter of law that where the injection of allegedly inadmissible evidence is attributable to the action of the party seeking to exclude that evidence, its introduction does not constitute reversible error.
All American Life & Cas. Co. v. Oceanic Trade Alliance Counsel Int'l Inc., 756 F.2d 474, 479-80 (6th Cir.1985); see also Fields v. Bagley, 275 F.3d 478, 485-86 (6th Cir. 2001); Harvis v. Roadway Exp., Inc., 923 F.2d 59, 60-61 (6th Cir.1991); 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure § 5039, at 204 & n. 18.1 (1977 & 2002 Supp.). The Court determined Norfolk Southern provoked the admission of portions of the NTSB report. Because Norfolk Southern fostered the inference of the NTSB's approval of its clean-up efforts, the Court did not find its objection to evidence of the NTSB's disapproval of those efforts welltaken.
The Court understands the doctrine of invited error is a "cardinal rule of appellate review." See Harvis, 923 F.2d at 60. Hence, it did not rest its decision to admit a portion of the NTSB report on that doctrine.
III. CONCLUSION
For the foregoing reasons, the Court has admitted both evidence of Norfolk Southern's prior felony conviction and a portion of the NTSB report on the leak at the deButts yard.
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