In many product liability cases we try, plaintiffs argue that certain government statements (e.g., on causation or adequacy of the labeling), are inadmissible on hearsay grounds. In a recent case having very little to do with product liability law, a Michigan state appellate court issued a favorable ruling regarding the admissibility of FDA, CDC, and other government-authored documents. In Kagen v. Kagen, 2014 WL 7217819 (Mich. App. Dec. 18, 2014), a divorced couple disputed whether to continue vaccinations for their children (pursuant to the divorce judgment, neither party was permitted to make major medical decisions relating to the children without consulting the other). The mother claimed that she maintained religious objections to employing vaccinations and refused to authorize them. Over the mother’s objections, the father took the daughter to the doctor for four vaccinations, and the mother filed a motion in the circuit court to prevent any further unilateral action.

The circuit court agreed with the mother; the critical finding was that the court agreed that the parties had previously agreed not to vaccinate the children and that the father failed to present sufficient evidence that a change in their prior agreement was in the children’s best interests. But, in order to reach that conclusion, the court had excluded statements and summaries of scientific studies regarding the safety, benefits, and risks of childhood inoculations, issued by the CDC, NIH, and FDA. The court held that those statements were inadmissible hearsay that did not fall within the “catch-all” exception, as argued by the father. The court ruled that the “catch-all” exception only applies where the hearsay is the “best evidence” and it is in the interest of justice to admit it. The court contended that the best evidence about the safety and necessity of childhood vaccinations would have come from the children’s pediatrician which would be nonhearsay derived from firsthand knowledge. [Note: it is not clear why the father did not argue the “public record and report” exception applied].

On appeal, the Michigan appellate court reversed. “The circuit court abused its discretion in excluding [the] proffered evidence based on the “best evidence” requirement . . . . The four reports proffered by [the father] were prepared by experts in the field of child immunizations and were based on scientific study. The fact that the reports were otherwise hearsay does not render them less worthy of belief. And, as noted by [the father], it would impose an unreasonable burden to expect him to present the testimony of the government agents who compiled or prepared the reports.”

In addition, the appellate court recognized the obvious – if the question at hand is whether the vaccinations are the appropriate medical treatment (or, in cases we often litigate, whether a medicine causes a particular condition or the label is adequate) – the FDA, the CDC, and the NIH’s conclusions on the topic are often the most relevant and reliable evidence in the case. If the goal is to get to the truth, a judge or jury ought to consider (and frankly, give great weight to), such evidence. The appellate court agreed, stating: “The focus of the hearing was the parties’ disagreement on childhood vaccinations. Mr. Kagen believed such vaccinations to be safe, necessary and in the children’s best interests while Mrs. Kagen thought they are poisonous, unnecessary and contrary to the children’s best interests. The opinions of these particular government agencies would certainly assist the fact finder in resolving whether the best interests of the children would be served by vaccination against disease.” In addition, while (as noted above), the father did not argue for the applicability of the public record exception, the appellate court cited to it as further support for its conclusions. “All four reports are official (formal) statements by government agencies. The presentation of this information in a public forum and as part of the authors’ official duties suggests ‘that the declarant would have been likely to consider the accuracy of the statement when making it’ . . . ‘The principal basis for the presumption of trustworthiness of public records is the assumption that public officials will properly perform their duties with accuracy and fidelity. Officials have the duty to make accurate statements, and this special duty will usually suffice as a motive to incite the officer to its fulfillment.’” (internal citation omitted).

Kudos to this court for applying common sense when analyzing the admissibility of hearsay evidence.