Oberg v. Honda Motor Co.

PETERSON, J.,

dissenting.

I disagree with the majority on two points. I would hold that the trial court erred in admitting the Consumer Product Safety Commission documents. Second, I believe that due process requires post-verdict review beyond that which the majority finds sufficient (which, essentially, is no post-verdict review).

The Consumer Product Safety Commission (CPSC) is a federal “independent regulatory commission” created by Congress to regulate consumer products, by protecting the *290 public against unreasonable risks of injury associated with consumer products, assisting consumers in evaluating the comparative safety of consumer products, developing uniform safety standards for consumer products, and promoting research and investigation into the causes and prevention of product-related injuries and illnesses. 15 USC §§ 2051 , 2053 (1991). The record shows that CPSC received product safety reports under a “NEISS” reporting system. Concerning the CPSC and the NEISS system, one witness testified:

“Q. [BY DEFENSE COUNSEL] What * * * is the function of the Consumer Products Safety Commission?

‘ ‘A. It’s the federal agency charged by the Consumer Products Safety Act to monitor the safety of consumer products to provide consumers with comparative safety data on consumer products, and to take such actions as the legislation dictates to perform its function.

“Q. You mentioned the NEISS Data System, and there’s been reference to that earlier in this trial. My question first, sir, is could you give us an explanation of the NEISS System, including what that acronym means * * *.

“A. * * * N EIS S, National Electronic Injury Surveillance System, and it truly is an electronics surveillance system.

“The Consumer Products Safety Commission pays an individual to work in currently it’s about one and a half percent of all the hospital emergency rooms in the nation, and this is a carefully selected one and a half percent, to be statistically representative of the entire population of emergency rooms. * * * And in these hospitals, individuals are paid to acquire information from admitted patients to the emergency room on whether or not their injury was related to a consumer product. And the relationship has just got to be some sort of association or relation, that is, if you were standing on a chair to change a light bulb and you fell off the chair, that would likely be coded as light bulb related and chair related, even if you never got to the light bulb, because you were trying to get to the light bulb.

“And along the same lines, if you stepped on aroller skate and ultimately fell down a stair, you would be coded that would get two product codes, related to stairs and roller skates, or so on down the line. As you can imagine the range. And the data is collected by product category, that is roller skates are a category, stair steps are a category. Light bulbs, *291 incandescent are a category as opposed to light bulbs fluorescent, and so on down the line.

“And there are 850 categories that are monitored. And the CPSC coder collects that information daily and transmits that information electronically to the Consumer Products Safety Commission in Washington. That’s why it’s the National Electronic Injury Surveillance System. The function of that system and the reason it is a daily entry is it is the hope and the design of the system that if for instance a sudden — there was a sudden importation of toys from some Third World country that had tainted, say stuffed toy that had poisonous fur, it would be the hope of the system to begin to catch a sudden unanticipated rise in the poisonings associated with stuffed toys or child admissions to emergency rooms and would cause — it wouldn’t be this monthly stuff that the emergency rooms would treat patients all month and then next month the paper would go to Washington.

“The next month they’d look at the paper and you would be three months into these toys before you figured out there was a problem. By transmitting that information electronically daily to the CPSC headquarters, they would hope to see a blip if it happened in one of their 850 categories, and take action.

<<$ * * *

“Q. Does the NEISS data in any way attempt to explain how accidents occurred or why?

“A. No. I mean basically what I’ve described to you is just about all the information you can put in a report. Even the product type itself is not described. In other words, you don’t get a description of a Schwinn Bicycle, you get product code through something, it will be a four digit code for bicycles, two-wheel. [1]

*292 “Q. Dr. McCarthy, is there another level or layer of data collection utilized by the CPSC?

“A. There are several.

“Q. What’s the next layer?

“A. Occasionally there will be what’s called the term for it is an IDI, an In-Depth Investigation, IDI. And most of the time that’s a phone call. I mean it’s called an In-Depth Investigation, but overwhelmingly that’s a phone call.

“Q. Would you describe in a little greater detail what kinds of data and how it’s collected in the IDI process

“A. Well, IDIs can occur, an In-Depth Investigation can occur for any number of reasons and take any number of forms, but most of the time they will be an injury and something will look interesting, or for some reason the product category will be flagged that month for IDIs, and one will make a follow-up phone call to the residence of the individual who was treated at the hospital, because when you get admitted to a hospital, especially when the NEISS coder is there, they’ve got your phone number, right? So they can call your home. Now, there’s no real requirement, and indeed it’s not uncommon for a quarter or a third of these In-Depth Investigations not even to talk to a witness. Someone does have to answer the phone. And they talk to them about the nature of the injury, the accident, they may or may not be a witness, just generally what happened, if someone knows; if *293 they don’t know or won’t talk to them, that may be it. Most of the time that is it. After the phone call, that’s the end of the investigation.”

The NEISS statistics included information about all ATVs, irrespective of who the manufacturer was or how the accident happened.

At the end of plaintiffs case-in-chief, copies of nine CPSC documents were received in evidence, over the objections of defendants. Copies of the exhibits are set forth in the Appendix. The exhibits include three kinds of information:

1. Interoffice memoranda containing information about ATV accidents reported to CPSC.

2. Interoffice memoranda containing opinions of CPSC personnel concerning the safety or design of ATVs.

3. CPSC notices concerning ATVs.

The majority holds that all the documents were relevant and admissible. I disagree.

OEC 801(3) provides:

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Plaintiff asserts that these exhibits were “offered to prove notice to Defendants of [their] contents, not for the truth of the matter asserted, and therefore [were] not hearsay.” Plaintiff read the nine exhibits — Exhibits 20, 23, 25, 28, 31, 37,120,121, and 122 — to the jury. Before the exhibits were read to the jury, the trial judge told the jury:

“Jurors, I am now going to permit plaintiffs counsel to read to you excerpts from some documents of the federal agency. The documents that I will allow plaintiffs counsel to read to you are not admitted for the purpose of establishing the truth of the statements contained in those documents. That means that you should not assume that the statements in those documents are true.

“These documents are admitted for the limited purpose of notice. Plaintiff has alleged that these documents gave defendants notice before the date of the Oberg’s [sic] accident that the ATVs could overturn.

*294 “I will not suggest to you that these documents constitute adequate notice. The adequacy of the notice is an issue for you to decide. The statements contained in these documents, the ones that will be read to you, may or may not be true. But we are not going to resolve their truth in this courtroom. In other words, they are coming in for a limited purpose on the basis that the plaintiff has alleged that Honda had notice, and this is the evidence that’s submitted to you and you will make that ultimate determination.”

The trial judge’s decision on the “other accidents” evidence was made after days of discussions between the trial judge and the lawyers on the subject. On April 3, 1990, after an extensive discussion between the trial judge and counsel, the court stated:

“Now, we’re going to have to have a subdivision because I recognize that there is going to be controversy on the word ‘stability,’ so the first criterion is that before a document will be considered by the Court, it has to deal with lack of stability.

“Then that will be divided into two components, instability, which relates to rearward — what do you call that?

“[DEFENDANTS’ LAWYER]: Rearward turnover.

“[PLAINTIFF’S LAWYER]: Flips, Your Honor.

“THE COURT: — which reasonably is similar to the normal test of similarity of our accident. And then the other criteria are those things which the Plaintiff is saying that this report deals with instability in general.

“I’m signaling the Plaintiffs team that you are going to have difficulty in convincing me that general instability will be adequate, but I’ll certainly look at every document you want me to look at.”

Seven of the nine exhibits are internal office memoranda, one (Exhibit 122) is a CPSC press release, and one (Exhibit 37) is a notice of proposed rulemaking published in the Federal Register.

There actually are two issues concerning the admissibility of the CPSC documents. One concerns the admissibility of the CPSC documents in light of the evidentiary rule that limits evidence of other accidents. The second issue concerns the admissibility of opinions contained in a public *295 agency’s records. I first discuss the evidence of other accidents.

Both parties appear to agree as to the rule applicable to evidence of other accidents. Rader v. Gibbons and Reed Co., 261 Or 354, 359 , 494 P2d 412 (1972), states the rule as follows:

“Evidence of prior similar occurrences is admissible under some circumstances in a negligence action. As a general rule, evidence of prior accidents or acts of negligence is not admissible to prove a specific act of negligence. Such evidence is, however, admissible to prove the existence of a continuing defect or a continuing course of negligent conduct, and that the condition or course of conduct is in fact dangerous, or that the defendant had notice of its dangerous character. The admissibility of such evidence for these purposes is, however, subject to the requirement that the prior accidents must have occurred under similar conditions and circumstances.” (Emphasis added; citations omitted.)

This court, in a long line of cases, has held that, in a negligence case, evidence of prior accidents is not admissible “to prove a specific act of negligence.” Such evidence may be admissible, however, as notice to a defendant of, among other things, a dangerous condition. In Rader , the plaintiffs decedent was killed when the windshield in the car in which the decedent was riding was struck by a falling rock. A policeman who regularly patrolled the area testified that, on previous occasions, large trucks carried rock on the haul road. There was evidence that shows that rocks had fallen onto the highway from the haul road, and that the defendant was aware of this. The court upheld the ruling admitting the evidence, saying that “the evidence objected to tended to show both the existence of a dangerous condition and that defendant had notice of the dangers. The real question is whether the circumstances were sufficiently similar in each instance.” 261 Or at 360 .

Rader is a pre-evidence code decision, and the Oregon Evidence Code does not itself touch on this relevancy issue. Plaintiff states that “[t]he ‘similarity’ issue * * * is no more than a question of relevance’ ’ and that the rule stated in Rader is the rule to be applied. I agree.

*296 The “other accident” evidence in the exhibits is very general. 2 References are made to many different types of accidents and to machines manufactured by other companies. There is no evidence in this record concerning other accidents that provides any detail concerning the manner in which the accidents occurred. When this court has upheld the admission of evidence of other accidents, the record contained evidence of the manner in which those other accidents occurred. See Rader v. Gibbons and Reed Co., supra, 261 Or at 361 (testimony concerning rocks falling on earlier occasions on very highway where accident occurred held admissible because it “tends to prove that the movement of equipment on the haul road created a danger of accidents like that suffered by [plaintiff]”); Clary v. Polk County, 231 Or 148, 152 , 372 P2d 524 (1962) (evidence showing prior accidents at the same place “is some evidence that the condition was dangerous”); Saunders v. Williams & Co., 155 Or 1, 7 , 62 P2d 260 (1936) (evidence that witness had slipped in oil on the floor of the defendant’s store on two prior occasions held admissible to show a continuing defect or condition). This is necessary in order to determine whether the other accidents occurred under similar conditions and circumstances.

Unquestionably, the evidence received is replete with prejudicial information about ATVs. But aside from some general comments that there were a lot of ATV accidents involving tipping over backward, there was no specific evidence of even one accident that “must have occurred under similar conditions and circumstances.” Rader v. Gibbons and Reed Co., supra, 261 Or at 359 . The documents received show that the reported accidents may have had a number of different causes, such as “loss of control” or hitting a bump, ditch, or other terrain feature.

In the decisions from other courts involving product claims where evidence of other accidents was offered, the courts have adhered to the requirement that the evidence of the other accidents be more specific, more detailed, than is the *297 case here. The Tenth Circuit Court of Appeals recently considered the very issue here before us. Kloepfer v. Honda Motor Co., Ltd., 898 F2d 1452 (10th Cir 1990), arose out of a rearward overturn accident of a three-wheeled Honda ATV on a steep hill and involved claims that the ATV was defective in its design and warnings. Unlike this case, however, the federal district court excluded evidence of the CPSC study of ATVs. The Tenth Circuit Court of Appeals affirmed, noting that ‘ ‘the proffered reports were not limited to three-wheeled vehicles, did not relate to an investigation into this accident or to the Honda model involved herein, but rather accidents, injuries and statistics involving all-terrain vehicles manufactured by over twenty manufacturers.” Id. at 1458. The court also observed that there was “a real possibility that the jury would give undue deference to such evidence.” Ibid.

Other courts have excluded CPSC-generated reports as inadmissible hearsay. For example, in McKinnon v. Skil Corp., 638 F2d 270, 278-80 (1st Cir 1981), the court considered the admissibility of several CPSC reports concerning circular saw guards. Like this case, the plaintiff claimed that CPSC reports gave the defendant “notice” of prior accidents, established a defect, and undermined the credibility of one of defendant’s witnesses. The First Circuit Court of Appeals noted that the proffered CPSC reports contained multiple levels of hearsay and held that they were properly excluded.

Similarly, in Henkel v. R and S Bottling Co., 323 NW2d 185, 192-93 (Iowa 1981), the Iowa Supreme Court held that the trial court properly excluded evidence of a CPSC “hazard analysis” similar to plaintiffs Exhibit 28. The plaintiff contended that a CPSC report titled “Hazard Analysis of Carbonated Soft Drink Bottles” was admissible under the public records exception to the hearsay rule. The court concluded that the CPSC report lacked the indicia of trustworthiness necessary for admissibility and that the report would have misled the jury. Accord: Prashker v. Beech Aircraft Corporation, 258 F2d 602, 608-09 (3d Cir 1958) (trial court refused to admit 38 of 45 other accidents involving Bonanza aircraft. “To hold the aircraft responsible on such evidence would be utterly to disregard the factor of human fallibility known inevitably to occur in such circumstances and would be patently unjustified.”); Johnson v. Amerco, Inc., 87 Ill App *298 3d 827, 42 Ill Dec 684, 409 NE2d 299, 315-16 (1980) (The plaintiff attempted to introduce reports of 1,000 prior accidents involving U-Haul trailers overturning. “The complexity of factors bearing upon the issue of whether a trailer is unreasonably dangerous under a certain set of conditions made it impossible to ascertain from the sketchy information provided in the reports which of the prior occurrences was sufficiently comparable to the Johnson accident. In addition, an examination of individual reports commonly reveals * * * either silence or dissimilarity concerning essential factors such as how the trailer was loaded, the size and nature of the tow vehicle, the type of hitch, as well as other factors.”).

Exhibit 31 refers to other accidents and states:

“After reviewing 169 cases, two main problems seen in the majority of ATV accidents seem to continue to be 1) instability — as documented in flipover, turnover, rollover on uphill or when hitting a rut, bumps, etc., and 2) difficulty of controlling the 3 wheel design — as seen in rollover when-attempting to turn quickly on a flat or hilly surface, and or a paved or gravel surface. These patterns have repeatedly occurred in accidents and deaths, whether alcohol, riding double or speeding were present or not, and for all ages of drivers. Also, although some victims were first time ATV users, half had ATV experience, and also were experienced with motorcycles or minibikes.”

It was error to receive any part of Exhibit 31. The references to the accidents referred to therein contain no information concerning any specific accident. For the same reasons, the evidence of other accidents contained in Exhibits 20 and 21 should not have been received. Neither exhibit meets the relevance requirement that the other accidents be substantially similar.

The majority concludes:

“Second, defendants contend that the accidents that were referred to or described in the CPSC documents were not ‘substantially similar’ to the accident that caused plaintiffs injury here. Again, we disagree with defendants’ contention. One of the excerpts at issue concerned reports of the instability of ATVs as a class. Another concerned reports showing a ‘pattern of loss of control’ specifically associated. *299 with ATVs manufactured by Honda. Three excerpts concerned reported incidents in which ATVs overturned backward, and three others more specifically concerned incidents in which ATVs overturned backward while climbing hills. As noted, the ninth excerpt concerned the similarity in configuration among all brands of ATVs. The trial court was entitled to find that the prior occurrences that were described in those excerpts were sufficiently similar to the accident at issue in this case to make those occurrences relevant.” 316 Or at 268.

The CPSC documents provide no details concerning the prior accidents. The most that can be said is that some involve “rearward flips.” That is not enough.

Beyond this, I maintain that the exhibits offered to establish that prior similar accidents had occurred are hearsay. The party offering evidence of other accidents has the burden of establishing that the other accidents “occurred under similar conditions and circumstances.” Rader v. Gibbons and Reed Co., supra, 261 Or at 359 . The “other accidents” rule rests on the premise that the other accidents happened. The theory is that the happening of other accidents of which defendant is aware is admissible to prove notice to defendant. In truth, this evidence was offered to prove that the other accidents had happened. The jury, in weighing this evidence, would consider how the other accidents had occurred. How similar were the other accidents?

That brings me to the second category of evidence contained within these nine exhibits — opinions of various CPSC personnel concerning the design or safety of ATVs. Exhibit 28 is the most prejudicial. It is a memorandum from a person named Harvey Tzuker to Nick Marchica, neither of whom are otherwise identified in the record, either as to their job or responsibilities, their education, or training, or as to their qualifications. The memorandum states:

“The front end of the vehicle is relatively light and acceleration on hills can cause the front wheel to lift, tipping the machine over backwards onto the operator. * * *

“Conclusion, the more than tripling of projected nationwide ATV associated injuries, their relative severity, the rate *300 at which accidents are occurring and the ever widening knowledge of fatal incidents are all alarming and ominous.

“It is the opinion of this directorate, based on the data in our files, as well as information from other sources, that three-wheeled all-terrain vehicles may present one of the most significant and explosively growing product hazards ever considered by this agency.”

Exhibit 23 is a similar document, a memorandum from Victoria R. Brown and Roy W. Deppa to Elizabeth Haught. As with Exhibit 28, the record is silent concerning their responsibilities or qualifications. The exhibit reads:

“Based upon our examination of the incidents and the machines, Engineering Sciences is of the opinion that the dynamic stability characteristics of the ATV comprise the single most prominent factor identifiable as a cause of loss of control.”

There were extensive on-the-record discussions concerning documents such as these. Specifically concerning Exhibit 28, these discussions occurred:

“THE COURT: * * * This conclusion is rather potent language, and I’m sure the defendants are concerned about it. Now, we’re talking about notice, and we’re trying to say the plaintiffs argue that this comment is notice of the problems this plaintiff has alleged existed in their complaint. It doesn’t relate to any plaintiffs allegation. It’s a broad conclusion re type of observation about ATV-associated injuries.

CC* *

“THE COURT: It would be my view * * * that the probative value on notice, if any, of that comment, could only relate to your claim for punitive damages, because I would think that its only value it has, it doesn’t give notice in the context of the court’s analysis or rulings, but it may be a basis to argue to the jury, after receiving this notice, they continued to or did nothing, continued to put these things on the market, et cetera, et cetera.

“I’m having real difficulty -with that conclusionary comment. You know, you never — I’m just kind of thinking out loud — you’d never under certain circumstances, for example, well I’m too strong, but I think it would be very difficult to get that kind of testimony from any kind of witness under any circumstances, and my letting it in through kind of a back door approach — and next level of consideration is, you *301 know, this is — if there ever was anything inflammatory, this is it, but it may be relevant to punitives.

“THE COURT: * * * You know, how do you — how does one really know that this writer is making that damning conclusion that emotional indictment, based on lack of stability, which is your whole theme?

“Now, I grant you, and I acknowledged earlier that you do have the paragraph which refers to stability, and that’s why I’m just not outright saying no, I’m agonizing over that tenuous connection, and it is tenuous.

"[PLAINTIFF’S LAWYER]: I don’t think I understood your concern until just now.

“THE COURT: All right.

“This writer, the man or woman who made this statement is making a harsh opinionated indictment. Just follow me step by step, and let [defense counsel] take care of his own problems.

“How does a person, a jury who’s going to hear you read this, know that this person is referring to lack of stability as distinguished from possibly a defective gas tank?

“[PLAINTIFF’S LAWYER]: My first thought in response to that is the context of this document. The second thought is the context of all the documents, and all we know-from all the documents about the nature of the investigation CPSC conducted.

“THE COURT: I just don’t accept that argument. You just can’t say: Judge, you have to look at all these documents. This document has to stand on its own four feet, or two feet, or how many feet it’s got. My similes get twisted here after a while.

“[PLAINTIFF’S LAWYER]: May I refer the court back to the earlier portions of the documents which admittedly aren’t highlighted or proposed for submission to the jury at this point, but this is a document which spends three pages talking about hospital data and evidence, epidemiological evidence of accidents involving ATVs, and then specifies some preliminary findings about the nature of those accidents, one of which we highlight, and then draws this conclusion. It’s — I don’t think there can be two interpretations to the general source of this conclusion. It is clearly related to the stability issue of ATVs. They refer to the rate at which accidents are occurring in this paragraph.

*302 ‘ ‘THE COURT: Well, I’m going to waffle, at least until I tell you to the contrary, and I’m sorry if it disrupts your case, it’s going to have to disrupt your case.

“At this stage of the trial, and I’m not indicating any concept in my mind, I’m simply saying I want to think and sleep on this last paragraph, so you can use the paragraph on three, but until I instruct you to the contrary, the language in the paragraph conclusion will not be brought to the jury’s attention.”

The trial judge later made this comment concerning the conclusions in Exhibit 28:

“About Plaintiffs 28, that one-page conclusion that I have under advisement, [plaintiffs lawyer],'if you are telling me now, ‘Judge, it’s critical to our case that we include that ruling, that comment to the jury at this time,’ I’m going to admit it. It’s your lawsuit.

“I think sometimes you have to share — although I have the ultimate responsibility, I would feel more comfortable if we could defer disclosing that to the jury.

“I think it’s that category of evidence which has to be labeled as a real close call. So you have — I’m not going to interfere with a trial lawyer’s tactical decisions. If you think it’s critical, you can do so. But I would much prefer this matter be looked at.”

Plaintiff opted to include Exhibit 28, and it was received.

The majority concludes that this opinion evidence is not within the hearsay definition of OEC 801(3), because it was not offered “to prove the truth of the matter asserted.” The evidence ostensibly was offered to show that defendants had notice that the writers of the memoranda had expressed opinions such as (I quote from Exhibit 28) “three-wheeled all-terrain vehicles may present one of the most significant and explosively growing product hazards ever considered by this agency.” The question is: Are opinions of persons contained in government records concerning the safety of a product admissible in evidence to establish that the manufacturer of a product is on notice of the dangerousness of the product? I would hold that such opinions, offered under the circumstances in this case, are not admissible.

I begin with an elementary but important proposition. All evidence must rest on a foundation. The most *303 common foundation is the direct knowledge of the witness who is testifying, knowledge based on actual experience — “I saw the accident.” An expert’s basis for knowledge, whether expert testimony or other testimony, whether offered as direct evidence, as impeachment, or otherwise, must rest on a foundation of reliability.

The foundation of reliability for eyewitness testimony is, “I perceived it.” “There is a rule, more ancient than the hearsay rule, * * * that a witness is qualified to testify to a fact susceptible of observation, only if it appears that he had a reasonable opportunity to observe the facts.” 2 McCormick, Evidence 99, § 247 (1992). True, some evidence reposes on other foundations of reliability. Business records are a good example.

“Unusual reliability is furnished by the fact that regularly kept records typically have a high degree of accuracy. The very regularity and continuity of the records are calculated to train the recordkeeper in habits of precision * * *.

“The common law exception had four elements: (1) the entries must be original entries made in the routine of a business, (2) the entries must have been made upon the personal knowledge of the recorder or of someone reporting the information, (3) the entries must have been made at or near the time of the transaction recorded, and (4) the recorder and the informant must be shown to be unavailable. If these conditions were met, the business entry was admissible to prove the facts recited in it.” 2 McCormick, supra, at 264-65, § 286 (footnote omitted).

The admissibility of government records similarly rests on a foundation of reliability. See United States v. Meyer, 113 F2d 387 (7th Cir) (a map was properly received into evidence because it was compiled from records of the U.S. Corps of Engineers, the witness was in charge of that office, and the men who furnished the information were working under the witness’ control), cert den 311 US 706 (1940).

These CPSC records ostensibly were not offered under OEC 801(3) to prove the truth of the matters asserted in the record. Plaintiff disclaims reliance on OEC 803(8). What, then, is the foundation for the receipt into evidence of the opinions contained in these records? There has to be some foundation for all evidence.

*304 Even though the majority disclaims reliance on OEC 803(8), it is relevant to our inquiry for reasons that follow. OEC 803(8) provides:

“The following are not excluded by OEC 802, even though the declarant is available as a witness:

"(8) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:

“(a) The activities of the office or agency:

“(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel; or

“(c) In civil actions and proceedings and against the government in criminal cases, 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.”

Plaintiff claims, and the majority concludes, that OEC 803(8) does not apply because the records were not offered to establish the truth of the matter asserted. 3 But all of the documents are government records. I look to OEC 803(8) for its policy concerning limitations on the use of government records. The public policy of Oregon is clear concerning opinions in government records: Opinions of government employees contained in government records are not admissible.

The commentary to OEC 803(8) states in part:

“The Legislative Assembly intends that this paragraph not provide a sweeping exception for public records containing evaluations or opinions. ‘Factual findings’ is to be strictly construed to allow as evidence only those reports, otherwise in accord with the rule, which are based on firsthand observation by the public official making the report.”

The commentary makes two things clear. One is that the factual findings must be “based on firsthand observation by the public official making the report.” The second is that *305 there is no “sweeping exception for public records containing evaluations or opinions.”

The reasons for this conclusion of the drafters of the Oregon Evidence Code are these:

“The first danger posed by Rule 803(8)(C) is the use of a fact finding in a public report without an opportunity for the opponent to cross-examine the reporter to determine the basis for the finding. One justification for the use of such fact findings is that public officials are objective and sufficiently responsible to include fact findings in their reports only if based on reliable information. In our adversary system, however, this assertion should be tested. For example, it is reasonable to expect that jurors could more effectively assess the reliability of a fact finding if they knew the background, training, and experience of the fact finder. Such information is unlikely to appear in a public report and would certainly not be revealed to the extent that it could be through cross-examination. Juries are likely to benefit even more from knowing specifically how the public reporter arrived at the finding. Even if such an explanation appears in the report, without cross-examination the opponent would have little or no opportunity to demonstrate weaknesses in the fact finder’s methodology or to suggest better procedures that could have been employed.

“An even greater problem arises when reports are admitted containing conclusions based in whole or in part upon the observation or information of third parties. Such information may not possess any guarantees of trustworthiness that customarily underlie the hearsay exceptions, yet still form the basis for a fact finding admitted under Rule 803(8)(C).” Grossman & Shapiro, The Admission of Government Fact Findings Under Federal Rule of Evidence 803(8)(C): Limiting the Dangers of Unreliable Hearsay, 38 U Kan L Rev 767, 771-72 (1990) (footnotes omitted).

Those reasons are applicable, as well, to opinions in government records offered to prove notice. Cross-examination is no less important concerning evidence to prove notice.

The majority confidently states that “[defendants’ hearsay objections were not well taken, because the excerpts from the CPSC documents were not offered to prove the truth of the matters asserted therein.” 316 Or at 269. There is a problem with this conclusion, because the documents that *306 contain the opinions of CPSC personnel, like the documents concerning other accidents, have a hearsay aspect that renders them inadmissible.

Exhibit 28 is illustrative. The effect of admitting Exhibit 28 is to say: CPSC is an agency of the United States. Nick Marchica works for CPSC. 4 Nick Marchica has an opinion concerning ATVs. He wrote to another CPSC employee, “three-wheeled all-terrain vehicles may present one of the most significant and explosively growing product hazards ever considered by this agency.” The jury was instructed that this statement was admissible only for the purpose of giving notice to the defendants “that the ATVs could overturn.”

It may be true that Exhibit 28 was not offered to prove that “three-wheeled all-terrain vehicles present one of the most significant and explosively growing product hazards ever considered by this agency.” But the document offered was the opinion of a CPSC employee, Nick Marchica, and it was received as the opinion of a CPSC employee having knowledge of ATVs, received with no opportunity for cross-examination concerning the basis for the opinion. No one could deny that this document, even as limited by the trial court’s instructions, had immensely more weight than would an opinion from some unidentified third person. Why does it have more weight? Because it is an opinion of one having knowledge of ATVs, a CPSC employee. I concede that the document, as offered and received, had but one nonhearsay aspect — to prove that defendants were on notice that a person had told them that ATVs were dangerous. The document has several hearsay aspects: that Nick Marchica had knowledge on which to base his opinion, that Nick Marchica was a CPSC employee, and that this was Nick Marchica’s opinion.

In order for the jury to consider whether the CPSC documents did provide “notice” to defendants, the jury must evaluate the reliability of the statements in those documents. In determining reliability, the jury implicitly will consider two things: (1) Does the out-of-court declarant have knowledge about the subject; and (2) is the statement of the out-of- *307 court declarant likely to be viewed by defendants as truthful? In considering this second step, the jury must necessarily inquire into the “truth of the matter asserted.”

The opinion in Exhibit 28 was addressed to the very question that the jury was required to decide: Were defendants’ ATVs unreasonably dangerous? The trial judge opined that “it would be very difficult to get that kind of testimony from any kind of witness under any circumstances * * *, this is — if there ever was anything inflammatory, this is it * *

Professor Wigmore states that cross-examination “is beyond any doubt the greatest legal engine ever invented for the discovery of truth. * * * [Cjross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure.” 5 Wigmore, Evidence in Trials at Common Law 32, § 1367 (1979). Jones states that “the real basis of weakness [of hearsay] lies in the fact that the absent person, whose assertion is offered to prove the facts he asserts, is not subject to the testing process of cross-examination to reveal weaknesses in his perception, his memory and his integrity.” 2 Jones on Evidence 166, § 8:2 (1972). Mr. Tzuker was not available for cross-examination concerning his basis of knowledge, his employment, and his experience and training.

The public policy stated in the commentary to the Evidence Code is clear — opinions of government employees contained in government records are not admissible. It may be that an expert would be permitted to express an opinion such as is contained in this exhibit, if the expert were available for cross-examination. See OEC 704 (expert testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact). However, those opinions are patently untrustworthy and thus their relevance, even for the purpose of notice, is greatly reduced. I would hold that such records are not admissible for any purpose.

To the best of my knowledge, no court has upheld the admissibility of opinion evidence like that contained in Exhibits 28 and 23 when offered as part of a government record. OEC 602 provides:

*308 “Subject to the provisions of OEC 703, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness.”

The effect of admitting Exhibit 28 was to permit Nick Marchica to testify without being present, and with no opportunity to cross-examine.

My decision on the remaining five exhibits is:

Exhibit 25 is a memorandum from William Walton to the commission. It raises “questions about CPSC-investi-gated (IDEs) death and injury incidents.” However, the memorandum provided no details of those incidents. Nor does it contain any admissible factual.findings.

Exhibit 120 refers to previous ATV accidents, without providing any details regarding the circumstances under which those accidents occurred. As is the case with all the exhibits mentioned above, this is the very type of evidence to be excluded by the rule in Rader . Absent any showing of the circumstances surrounding the accidents referred to in these exhibits, evidence of those accidents is not relevant. Nor do these exhibits contain any admissible factual findings.

Exhibit 122 does not refer to any prior accidents. Because it was offered to prove defendants’ knowledge that ATV’s could overturn backwards, and was not offered to prove the truth of the matter asserted, it is admissible. 5

Most of the exhibits set forth in the Appendix are not admissible for any purpose, either as evidence of relevant “other accidents” or otherwise.

On the punitive damages question, I disagree with the majority. I read the Supreme Court decision in Pacific Mut. Life Ins. Co. v. Haslip, 499 US 1 , 111 SCt 1032 , 113 L Ed 2d 1 (1991), to require three due process procedural protections:

1. At trial, the jury must have adequate guidance by instructions, so that its award is reasonable, and not *309 a product of “unlimited jury discretion.” Ill S Ct at 1044. “As long as [the jury’s] discretion is exercised within reasonable constraints, due process is satisfied.” Ibid.

2. The state must establish post-trial procedures for trial court review of punitive damages awards to ensure “meaningful and adequate review by the trial court.” Ibid.

3. The state must establish post-trial appellate review procedures. “This appellate review makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Id. at 1045. It also ensures “that punitive damage awards are not grossly out of proportion to the severity of the offense and have some understandable relationship to compensatory damages.” Ibid.

The majority appears to require no post-verdict review procedures.

I would reverse the trial court and the Court of Appeals. I therefore dissent.

*310 [[Image here]]

Plaintiffs lawyer read the following exhibit excerpts to the jury:

EXHIBIT 20

“United States U.S. Consumer Product

Government Safety Commission

Memorandum Washington, D.C. 20207 Date: 09 JUL 1984

“TO: The Commission

“FROM: Nick Marchica, Program Manager for Product Safety Commission, Office of Program Management

“SUBJECT: All-Terrain Vehicles (ATVs)

“Stability is of concern. The handling characteristics are peculiar to the ATV and are distinctly different compared to a two-wheeled vehicle. Considerable practice is required to master ‘all-terrain’ use. However, a beginner may readily ride the ATV on gentle terrain, due to the static stability of the tricycle configuration.

11 >|; í¡: %

“In reviewing 40 in-depth investigations of ATV accidents from January 1981 through March 1984, several hazard patterns were identified:

“• Flipover or Rollover — Thirty-four cases resulted from rollover or tipover of the vehicle. In 13 of the rollover cases the injuries were serious and included concussions, eye injuries and fractured shoulders. Contact with the handlebars during rollover contributed to several cases of fractured skull, face, or jaw.

“Medical Opinion

“The Medical Director’s opinion is that there is a lack of comprehension of the complexity of the vehicle’s actual performance characteristics and the consequent inherent dangers. This is due to two factors: the deceptive impression of stability given by a tricycle type vehicle with a wide tread and broad wheels, and the agility of the vehicle which is advertised frequently as showing the vehicle in flight, operating at high speeds and performing complex maneuvers.”

*311 [[Image here]]

“United States U.S. Consumer Product

Government Safety Commission

Memorandum Washington, D.C. 20207 Date: 11 FEB 1985

“TO: Elizabeth Haught, CACA

“FROM: Victoria R. Brown, ESHF and Roy W. Deppa, ESES

“SUBJECT: Assessment of the Specialty Vehicle Institute of America Proposed Rider Training Program for All Terrain Vehicles

“* * * Based upon our examination of the incidents and the machines, Engineering Sciences is of the opinion that the dynamic stability characteristics of the ATV comprise the single most prominent factor identifiable as a cause of loss of control.”

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“United States U.S. Consumer Product

Government Safety Commission

Memorandum Washington, D.C. 20207 Date: 29 MAR 1985

“TO: The Commission

“FROM: William W. Walton, AED, ES

“SUBJECT: Forwarding of ATV Meeting Log.

<<# Hi * * Hi

“SUBJECT: Design and Development of the Honda ATC[*]

% Hi ❖ ❖

“*Note that ATC (All Terrain Cycle) is the Honda trademark name of the device more generally referred to as the All Terrain Vehicle (ATV). a Hi Hi Hi Hi Hi

“Discussion of ATV Safety

“The dialogue dealt at some length on safety consideration in the design of the ATC, with specific question raised as to the extent of those considerations encompassed in the *312 development process. Specifically, we raised questions about CPSC-investigated (IDEs) death and injury incidents. The emerging awareness by the Engineering Sciences staff that a common pattern of loss of control due to the dynamic characteristics of the ATV was described.”

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“United States U.S. Consumer Product

Government Safety Commission

Memorandum Date: MAR 20 1985

‘ ‘TO: Nick Marchica, EX-P

“FROM: Harvey Tzuker, EPHA

“SUBJECT: Further Information on All Terrain Vehicles (ATVs)

“• The front end of the vehicle is relatively light and acceleration on hills can cause the front wheel to lift, tipping the machine over backwards onto the operator. * * *

“Conclusion, the more than tripling of projected nationwide ATV associated injuries, their relative severity, the rate at which accidents are occurring and the ever widening knowledge of fatal incidents are all alarming and ominous.

“It is the opinion of this directorate, based on the data in our files, as well as information from other sources, that three- wheeled all-terrain vehicles may present one of the most significant and explosively growing product hazards ever considered by this agency.”

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U.S. Consumer Product “United States

Safety Commission Government

Date: February 11, 1985 Memorandum

Nick Marchica, EX-P * * * “TO:

George Rutherford, EPHA Jean Kennedy, EPHA “FROM:

Updated Injury Data on All Terrain Vehicles “SUBJECT:

“DISCUSSION

*313 “After reviewing 169 cases, two main problems seen in the majority of ATV accidents seem to continue to be 1) instability - as documented in flipover, turnover, rollover on uphill or when hitting a rut, bumps, etc., and 2) difficulty of controlling the 3 wheel design - as seen in rollover when attempting to turn quickly on a flat or hilly surface, and or a paved or gravel surface. These patterns have repeatedly occurred in accidents and deaths, whether alcohol, riding double or speeding were present or not, and for all ages of drivers. Also, although some victims were first time ATV users, half had ATV experience, and also were experienced with motorcycles or minibikes.”

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“Federal Register / Vol. 50, No. 105 /

Friday, May 31, 1985 / Proposed Rules

“CONSUMER PRODUCT SAFETY COMMISSION CC* * # *

“All-Terrain Vehicles; Advance Notice of Proposed Rulemaking; Request for Comments and Data

“Agency: Consumer Product Safety Commission

“Summary: Based on available data, the Commission has preliminarily determined that there may be an unreasonable risk of injury associated with the use of all-terrain vehicles (ATVs) which may be sufficiently severe to require regulatory action by the Commission. The commission is aware of at least 161 deaths associated with ATVs occurring between January 1982 and April 1985. Estimates on the number of hospital emergency room treated injuries associated with ATVs in 1984 was 68,956. This is almost two and one-half times the number of injuries in 1983 and more than seven times the number in 1982. An estimated 28,000 ATV related injuries were treated in hospital emergency rooms nationwide in the first four months of 1985. This is approximately 80 percent higher than the estimated injuries treated during the same time period in 1984. The Commission is primarily concerned about accidents which result from (1) loss of control of the vehicle; (2) the vehicle overturning, such as flipping over backward, tipping over forward, or rolling over sideways; and (3) the rider being thrown from the ATV after it hits bumps, ditches, and other terrain features. [Footnote omitted.]

*314 “* * * The Commission is concerned about whether the performance characteristics of three and four wheel ATVs, including their dynamic stability and handling, are reasonably safe. The Commission’s technical staff has not determined the feasibility, practicality, appropriateness, or cost of performance or other modifications, which would adequately reduce or eliminate the risk of injury associated with ATVs. However, based on available data, the Commission staff believes that the performance characteristics of ATVs, including their dynamic stability and handling, are a significant factor in ATV related accidents.

“* * * Overturning and loss of control were documented in the majority of reported ATV deaths.

“D. Engineering Information

“The basic configuration of the ATV and its unique performance characteristics, including dynamic stability and handling, appear to play a major role in accidents involving ATVs. Many of the serious-injuries and deaths reported in the in-depth investigations resulted from loss of control of the ATV and were observed regardless of whether alcohol, riding double, or speeding were also observed. These incidents involved drivers of all ages. Also, although some victims were first time ATV users, many had previous experience riding ATVs, and experience riding motorcycles or minibikes.”

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“United States U.S. Consumer Product

Government Safety Commission

Memorandum Date: 5/1/84

“TO: Nick Marchica, Program Management * * *

“FROM: Albert F. Esch, M.D. Medical Director

“SUBJECT: All Terrain Vehicles, (ATVs)

“As indicated in the reports prepared by Epidemiology, The common mechanisms that appear to be associated with *315 the severe injuries are the dislodgment of the operator from the vehicle while it is in motion, and/or the overturning of the vehicle with consequent entrapment and crushing injuries to the driver. * * *

“* * * [Tjhere appears to be common lack of understanding or comprehension of the complexity of the vehicle’s actual performance characteristics; and its consequent inherent dangers. This could be due in part to the deceptive impression given by a comfortable appearing, tricycle type vehicle, with a wide tread and broad wheels which would seem to assure stability. Such confidence might be furthered by the erroneous image of the vehicle’s implied agility * * *.

U* i|; >¡: ífí

“The nature of the risk therefore can be characterized as circumstances in which there is a deceptively dangerous vehicle, (possibly mistermed All Terrain within reasonable constraints of safe operation), requiring a high degree of skill and insight into its performance for proper control, utilized by a cross section of ages. As with aircraft, these vehicles can be unforgiving of minor errors in judgement and consequent accidents usually result in major injuries.”

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“United States U.S. Consumer Product

Government Safety Commission

Memorandum Date: 3 MAY 1984

“TO: Elizabeth Haught, CACA

“FROM: Roy Deppa, ESES Medical Director

“SUBJECT: * * * Review of Information Relating to Mechanical Characteristics of All Terrain Vehicles (ATV’s)

“The ARTECH report reveals that the three-wheeled ATV’s currently being marketed are very similar in configuration, and there is little variation either between brands or from year to year. * * *”

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“U.S. Consumer Product Safety Commission Washington, D.C. 20207 (202) 634-7710

*316 “RECEIVED APR 30 1985

“TO: ALL MEDIA (News Directors, Consumer Reporters, Action-Line Columnists, Editorial Page Editors)

“RE: Rising Death & Injury Toll from All-Terrain Vehicles (ATVs)

<£* * * H*

“CAUSES. At this time, Commission staff identify two underlying problems in ATV-related accidents. These involve: (1) instability of the vehicle (causing flipovers, turnovers, and rollovers when an ATV is moving uphill or hits a rut or bump); * * *. Variables which appear to have contributed to incidents, or their severity, include: riding surface, speed, alcohol involvement, additional passenger, nighttime use, and lack of helmet.

“An in-depth review of hazard patterns involved specifically in ATV-related fatalities revealed three basic scenarios: * * * (2) tipover/flipover/rollover (vehicle flipped backwards ascending a hill, tipped over frontwards, descending a hill, or rolled over sideways while turning); * * (Emphasis in original.)

1 This testimony is similar to the summary of the NEISS system described in Edward J. Heiden, Alan R. Pittaway, and Rosalind S. O’Connor, Utility of the U.S. Consumer Product Safety Commission’s Injury Data System as a Basis for Product Hazard Assessment, 5 J Prod Liab 295, 295 and 295 n 1 (1982):

“The U.S. Consumer Product Safety Commission (CPSC) has jurisdiction over approximately 10,000 products, with the power to recall, ban, regulate safety characteristics, or provide product safety information. The basis for all CPSC action is its system of health and safety data. The precision, accuracy, and reliability of these data are a critical issue for CPSC, consumers, and the business community dealing with liability considerations for CPSC-regulated products.

“One of the principal bases for CPSC’s actions is the National Electronic Injury Surveillance System (NEISS), a reporting system based on product-associated *292 injuries that occur in a national sample of emergency rooms within approximately seventy-five hospitals. NEISS is used as abasis to obtain estimates of the total of all national medically attended injuries associated with the great majority of consumer products. The national estimates consist of three methodological elements: (1) recording of injury data, in terms of product(s) associated with that injury, from the sample of emergency room visits (ERVs); (2) projection of sample data upward to an estimate for the total universe of all emergency room product-related injury visits; and (3) projection of total national emergency room injuries from (2) to a total for all medically attended injuries.

“1- Injuries associated with consumer products are reported via teletype either by in-house hospital personnel or contractor personnel to a central computer on a frequent basis — usually daily — for several hundred general product codes. Each injury report indicates a product, the lype of injury involved, and provides information about the victim and the injury — age, sex, injury diagnosis, body part involved, locale, date of treatment, whether the victim was treated and released, was hospitalized, or was dead on arrival at the emergency room. A subset of these cases is selected for in-depth follow-up investigation for products of special interest to CPSC staff or Commissioners.”

The information that CPSC obtained concerning other accidents was received from hospitals. All of the reports are “double hearsay” or “hearsay within hearsay” in the sense that some person told a care-giver about the accident, and the care-giver reported to CPSC. Unless otherwise stated, for purposes of this discussion, concerning “other accidents,” I assume that the evidence is not subject to a valid hearsay objection.

But as will be discussed below, there is another hearsay aspect of this evidence that the majority has not considered.

Exhibit 20 refers to Mr. Marchica as “Program Manager for Product Safety.”

Portions of Exhibit 37 may be admissible. Exhibit 121 appears to refer to some other report (“The ARTECH report”). It should not have been received.