# Rehm v. Ford Motor Co.

> Court of Appeals of Kentucky · October 7, 2011 · 365 S.W.3d 570

URL: https://www.frixlaw.com/law-library/cases/5109659

## Case

- **Full name:** Debbie Ellen REHM Debbie Ellen Rehm, of the Estate of James David Rehm Christina Marie Rehm, by and through Parent Guardian and Next Friend Debbie Ellen Rehm and Nicholas James Rehm, by and through Parent Guardian and Next Friend Debbie Ellen Rehm v. FORD MOTOR COMPANY and Garlock Sealing Technologies, Inc., and Ford Motor Company v. Debbie Ellen Rehm, of the Estate of James David Rehm, Cross-Appellee
- **Court:** Court of Appeals of Kentucky
- **Decided:** October 7, 2011
- **Citations:** 365 S.W.3d 570; 2011 Ky. App. LEXIS 195; 2011 WL 4632924
- **Precedential status:** Published
- **Opinion:** Concurring in part by Caperton
- **Judges:** Caperton, Combs, Thompson
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

CAPERTON, Judge,
Concurring in Part and Dissenting in Part:
I concur with the learned majority on the cross-claim of Ford Motor Company concerning the denial of its summary judgment motion. Otherwise, I dissent.
First, I address the testimony of Dr. Morgan on the theory of household exposure to asbestos which supported Ford’s theory that Rehm’s father could have been exposed to asbestos because of his occupation and, in turn, exposed Rehm to asbestos. Rehm’s father provided the only testimony on this issue and testified that he had not been exposed to asbestos. Since there was no evidence to the contrary, the introduction of testimony from Dr. Morgan on the household exposure theory was error because it was without basis, irrelevant and prejudicial. Additionally, this evidence affected the substantial right of Rehm to a fair trial and is not harmless. I would reverse the trial court and remand for a new trial.
Secondly, I address the admission into evidence of the newspaper article under KRE 803(16). Initially, I note that this evidentiary exception to the hearsay rule is not frequently used and, as a result, only a limited number of cases discuss it. Additionally, this exception is not a wide open door but a narrow crevice, as shall be apparent from the following analysis.
Of the several cases that discuss such an exception, only two will be discussed: Columbus-America Discovery Group, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 742 F.Supp. 1327 (E.D.Va.1990), and Hicks v. Charles Pfizer & Co., Inc., 466 F.Supp.2d 799 (E.D.Texas 2005). *580 Trae, they discuss the Federal Rules of Evidence (Fed.R.Evid.), but, for our purposes, Fed.R.Evid. 803(16) and Fed. R.Evid. 805 are essentially the same as our Kentucky Rules of Evidence. I quote the two cases at length and in detail in hopes that the reasoning therein and the cases they cite will provide for robust debate of the confínes of KRE 803(16), and caution that my analysis is not meant to be an exhaustive dissertation.
In Columbus-America Discovery Group the court stated:
First, the Court must consider whether the newspaper accounts are subject to the hearsay objection raised at trial.
Rule 802 of the Federal Rules of Evidence provides:
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by act of Congress.
Rule 803 of said rules provides:
That the following are not excluded by the hearsay rule[:j
(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.
In a discussion of the admissibility of hearsay, we begin with the established principle that cross-examination is of vital importance in establishing the value and trustworthiness of such evidence. The requirement the witness be sworn, testify in the presence and hearing of the trier and be subject to cross[-] examination is lost in most instances of hearsay. The restriction in the admissibility of ancient documents is “the authenticity of which is established.” The purpose of the admission and exactly what is sought to be established by the item will often determine its admissibility. For instance, in Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir.1961), a 58[-]year[-]old newspaper story was admitted to prove the occurrence of a fire in a public building. However, the same Court in Poretto v. United States, 196 F.2d 392, 395 (5th Cir.1952) ruled that newspaper articles are not admissible to prove facts stated therein. In Montana Power Co. v. Federal Power Commission, 185 F.2d 491 (D.C.Cir.1950), cert. denied, 340 U.S. 947 , 71 S.Ct. 532 , 95 L.Ed. 683 [ (1951) ], old newspaper accounts on the question of navigability of the Mississippi River during the 19th century were admitted to prove navigability at that earlier date. The question often arises as to whether assertive statements in the article are admissible. In Wathen v. United States, 527 F.2d 1191, 1199 (Ct.Cl.1975), the Court in considering a newspaper account of a shooting, held it hearsay, but said “that insofar as they reported the fact of the shooting, resulting in death observed by witnesses, they provided reliable and substantial evidence.”
Columbus-America Discovery Group at 1342 (emphasis supplied.)
In Hicks the court stated:
The Hicks assert that the ancient documents exception should be applied to render the newspaper articles admissible. This exception provides that “[sjtatements in a document in existence twenty years or more the authenticity of which is established” are admissible. FED.R.EVID. 803(16). Under the Federal Rules of Evidence, newspaper articles are self-authenticating. See FED. R.EVID. 902(6); Woolsey v. National Transp. Safety Bd., 993 F.2d 516, 520 (5th Cir.1993), cert. denied, 511 U.S. 1081 , 114 S.Ct. 1829 , 128 L.Ed.2d 459 (1994); Perez v. Alcoa Fujikura, Ltd., 969 F.Supp. 991, 998 (W.D.Tex.1997).
*581 The dangers of hearsay relate to flaws in perception, memory, narration, and sincerity. See Park v. Huff, 506 F.2d 849, 865 (5th Cir.), cert. denied, 423 U.S. 824 , 96 S.Ct. 38 , 46 L.Ed.2d 40 (1975) (citing Morgan, Hearsay Dangers & the Application of the Hearsay Concept, 62 HARV. L.REV. 177, 218 (1918)); JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE § 215 (5th ed.2003). An assertive statement found in an ancient document is more likely to be truthful because “age affords assurance that the writing antedates the present controversy,” as such a document must have been written before the current motive to fabricate arose. See United States v. Stelmokas, No. 92-3440, 1995 WL 464264 , at *6 (E.D.Pa. Aug. 2,1995), aff'd, 100 F.3d 302 (3d Cir.1996), cert. denied, 520 U.S. 1242 , 117 S.Ct. 1847 , 137 L.Ed.2d 1050 (1997); JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE § 323 (5th ed.2003); FED. R.EVID. 803(16) NOTES OF ADVISORY COMMITTEE ON 1972 PROPOSED RULES. Moreover, the requirement that an ancient document be written protects against the danger of inaccurate narration. See Stelmokas, 1995 WL 464264 , at *6; JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE § 323 (5th ed.2003). Finally, an ancient document is more likely to be accurate than the memory of a person after the passing of a lengthy period of time. See Dallas County, 286 F.2d at 396-97 ; Stelmokas, 1995 WL 464264 , at *6; JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE § 323 (5th ed.2003). Thus, if the author of the ancient document had personal knowledge of the substance underlying the relevant assertive statements, then Rule 803(16) clearly applies.
The crucial issue, however, is whether Rule 803(16) inoculates all assertive statements contained within an ancient document, including double hearsay, against application of the general prohibition against hearsay contained in Rule 802. The rationale of Rule 803(16) in permitting the admission of statements in ancient documents where the author is the declarant does not justify the admission of double hearsay merely because of its presence in an ancient document. The danger of faulty perception persists unabated because a narrator, such as a reporter, may not properly record the remarks of the speaker. See Stelmokas, 1995 WL 464264 , at *6; Greg Kettles, Ancient Documents & the Rule Against Multiple Hearsay, 39 SANTA CLARA L.REV. 719, 735 (1999). More generally, the risk of deception or mistake is compounded with each additional layer of hearsay, as any error will inevitably be passed on regardless of the accuracy or sincerity of the author of the ancient document or prior relators. See id.
Courts are divided as to the proper application of Rule 803(16) to ancient documents involving double hearsay. One position is that a separate hearsay exception must apply to each layer of hearsay contained within the ancient document to warrant admission of the specific statement into evidence. See United States v. Bronislaw Hajda, 135 F.3d 439, 444 (7th Cir.1998) (holding that “if the [ancient] document contains more than one level of hearsay, an appropriate exception must be found for each level”) (citing FED.R.EVID. 805); Columbia First Bank, FSB v. United States, 58 Fed.Cl. 333, 338 (Fed.Cl.2003) (noting that if Rule 803(16) were read so as to inoculate multiple levels of hearsay, “Rule 805 would be superfluous”) (citing Stelmokas, 1995 WL 464264 , at *5-6). Analogously, the Fifth Circuit *582 requires that a separate hearsay exception be applicable to each level of hearsay in a business record to render the document admissible. See United States v. Ismoila, 100 F.3d 380, 392-93 (5th Cir.1996), cert. denied, 520 U.S. 1219 , 117 S.Ct. 1712 , 137 L.Ed.2d 836 (1997), 520 U.S. 1247 , 117 S.Ct. 1858 , 137 L.Ed.2d 1060 (1997) (explaining that double hearsay is admissible only when each layer is excused by a hearsay exception) (citing United States v. Baker, 693 F.2d 183, 188 (D.C.Cir.1982)).
Some courts have implied that multiple levels of otherwise inadmissible hearsay may be admitted under Rule 803(16). See Murray v. Sevier, 50 F.Supp.2d 1257 , 1265 n. 6 (M.D.Ala.1999) (permitting statements made in an interview in a newspaper article to be used under Rule 803(16), vacated on other grounds, Murray v. Scott, 253 F.3d 1308 (11th Cir.2001); Gonzales v. North Twp. of Lake County, 800 F.Supp. 676, 681 (N.D.Ind.1992), rev’d on other grounds, 4 F.3d 1412 (7th Cir.1993)) (“As the newspaper articles in Exhibit C are well more than twenty-years old, the statements contained within are admissible into evidence ....”) (citing Ammons v. Dade City, 594 F.Supp. 1274 , 1280 n. 8 (M.D.Fla.1984), aff'd, 783 F.2d 982 (11th Cir.1986) (admitting newspaper articles to prove the existence of a street paving program in 1925 without inquiry into the double hearsay issue); Bell v. Combined Registry Co., 397 F.Supp. 1241, 1246-47 (N.D.Ill.1975), aff'd, 536 F.2d 164, 166-67 (7th Cir.1976) (receiving into evidence newspaper articles detailing the use of a poem to further good works and announcing the poet’s death)); JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE § 323 (5th ed. 2003) (“The more common tendency appears to be to admit newspaper articles over 20 years old without the proper inquiry.”).
Better reasoned authority indicates that the ancient documents exception permits the introduction of statements only where the declarant is the author of the document. Even if a document qualifies as ancient under Rule 803(16), other hearsay exceptions must be used to render each individual layer of hearsay admissible. This interpretation best reconciles the underlying justifications of Rule 803(16) with the limitations of Rule 805. See Columbia First Bank, FSB, 58 Fed.Cl. at 338 ; Stelmokas, 1995 WL 464264 , at *6. Rule 805 provides that “[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule.... ” FED.R.EVID. 805. “[A]s long as there is no ‘positive repugnancy’ between two laws ... a court must give effect to both.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 , 112 S.Ct. 1146 , 117 L.Ed.2d 391 (1992) (citing Wood v. United States, 41 U.S. 342 , 16 Pet. 342, 363 , 10 L.Ed. 987 (1842)). Rule 805 would be superfluous if the explicit hearsay exceptions excused double hearsay. Therefore, the canons of statutory interpretation compel this court to give effect to Rule 805 as well as Rule 803(16), rendering the newspaper articles inadmissible under the ancient documents exception to the hearsay rule.
Hicks at 804-807 (emphasis supplied).
A reading of both Columbus-America Discovery Group and Hicks leaves me with multiple conclusions: (1) We must, in applying any exception, remember that cross-examination is vital in establishing the value and trustworthiness of evidence and that when a hearsay exception is applied, the benefits of a sworn witness, tes *583 tifying in the presence of the trier of fact and subject to cross-examination, are often lost; (2) The purpose of the evidence will often determine its admissibility under KRE 808(16); (3) A newspaper may avoid the pitfalls of recent fabrication, inaccurate narration and faded memory; and lastly, (4) The rationale of Rule 803(16) does not justify the admission of multiple levels of hearsay merely because they are present in an ancient document.
I would align with the reasoning of Hicks and find that the ancient-documents exception found in KRE 803(16) permits the introduction of statements only where the declarant is the author of the document. If multiple levels of hearsay exist, then each level must meet a hearsay exception to be admissible because this interpretation of KRE 803(16) reconciles it with KRE 805 and avoids the faulty interpretation or perception an author may have of another’s statements.
In applying these conclusions to the newspaper admitted into evidence sub ju-dice, which stated that the last Ford LTD rolled off the line on a particular date, I conclude it was admissible for the purpose of showing that a Ford LTD did roll off the line on that date but would require a showing that, either the author-declarant knew it was the last LTD through his personal knowledge, or, that the hearsay upon which he relied in determining it to be the last LTD met a hearsay exception pursuant to KRE 805. Because there was no showing of the author-declarant’s knowledge that the LTD was the last LTD or that the hearsay upon which he relied met an exception to KRE 805, it should have been excluded. This evidence was of importance, detrimental to Rehm’s case, and affected his substantial right to a fair trial. Therefore, I would reverse the decision of the trial court admitting the evidence and remand for a new trial.
Last, I address the consortium claim asserted by Rehm. I agree with Capital Holding Corporation v. Bailey, 873 S.W.2d 187 (Ky.1994) that a cause of action does not accrue until the exposure to asbestos causes the injury that produces the loss or damage. A plain reading of Kentucky Revised Statutes (KRS) 411.145 would allow the claim to be asserted by Rehm against Ford. Therefore, I would reverse the trial court on this issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5109659. Public record. Not legal advice.