784 F.

2d 1523
54 USLW 2501, 20 Fed. R. Evid. Serv. 263

John C. RAINEY, Individually and as Personal Representative

of the Estate of Barbara A. Rainey, Plaintiff-Appellant,
v.
BEECH AIRCRAFT CORPORATION, Beech Aerospace
Services, Inc.,
and Pratt & Whitney Canada, Ltd., Defendants-Appellees.
Rondi M. KNOWLTON, Individually and as Personal
Representative of the Estate of Donald Bruce
Knowlton, Plaintiff-Appellant,
v.
BEECH AIRCRAFT CORPORATION, Beech Aerospace
Services, Inc.,
and Pratt & Whitney Canada, Ltd., Defendants-Appellees.
Nos. 84-3625, 84-3626.

United States Court of Appeals,

Eleventh Circuit.
March 25, 1986.
Rehearing En Banc Granted and Opinion Vacated May 27, 1986.

Dennis K. Larry, Donald H. Partington, Pensacola, Fla., for plaintiffsappellants.

Thomas E. Scott, Joseph W. Womack, R. Benjamin Reid, Miami, Fla.,
Robert P. Gaines, Joe J. Harrell, Pensacola, Fla., for defendants-appellees.
Appeals from the United States District Court for the Northern District of
Florida.
Before FAY and JOHNSON, Circuit Judges, and HOFFMAN* , Senior
District Judge.
PER CURIAM:

Barbara Ann Rainey and Donald Bruce Knowlton died on July 13, 1982 in a
fiery plane crash at Middleton Field, Alabama. Their spouses, John Charles
Rainey ("Rainey") and Rondi M. Knowlton ("Knowlton") sought money
damages under the Florida Wrongful Death Act, Fla.Stat. Secs. 768.16-.27
(1985), in district court.1 The jury returned a verdict against Rainey and
Knowlton. We hold that the trial judge committed reversible error in two
evidentiary rulings and remand for a new trial.

I.
2

On July 13, 1982 Lieutenant Commander Barbara Ann Rainey, a flight

instructor with the United States Navy, was issued a T-34C Turbo-Mentor
aircraft, number 3E955, for a training exercise at Middleton Field, Alabama.
Her student was Ensign Donald Bruce Knowlton. Ensign Knowlton was to
practice "touch and go" landings and takeoffs.2 There were five aircraft in the
"touch and go" pattern.

Witnesses testified that Ensign Knowlton, after successfully completing four

"touch and go" patterns, began "climbing out low; that is, below the standard
altitude, and slow, slower than the 100 knots or 90 knots that the aircraft should
have been at." Witnesses also testified that Ensign Knowlton made an early
crosswind turn; this early turn prompted two radio transmissions. Captain
Charles E. Guthrie, a flight instructor riding in another aircraft in the pattern,
cautioned Lieutenant Commander Rainey:3 "Aircraft turning crosswind, you're
cutting somebody out." Similarly, Lieutenant Colonel David I. Habermacher,
Jr., a flight instructor in the aircraft forced out of the pattern, transmitted the
warning: "Aircraft turning crosswind, you're cutting us out. Heads up."

Lieutenant Commander Rainey did not verbally respond to these radio

transmissions. Witnesses testified, however, that following these transmissions
Lieutenant Commander Rainey's aircraft banked sharply to the right. While the
threatened midair collision with Lieutenant Colonel Habermacher's aircraft was
thus avoided, the aircraft piloted by Lieutenant Commander Rainey rapidly lost
altitude, crashed in a wooded area two miles southeast of Middleton Field, and
burned. Neither Lieutenant Commander Rainey nor Ensign Knowlton survived
the crash.

On July 14, 1982 Lieutenant Colonel Habermacher directed Lieutenant

Commander William C. Morgan, Jr. to conduct an informal investigation into
the circumstances surrounding the crash. On September 1, 1982 Lieutenant
Commander Morgan reported, in writing, his findings of fact, opinions and
recommendations pursuant to the requirements established by the Judge

Advocate General. Lieutenant Commander Morgan's report lists as an opinion

that pilot error was "[t]he most probable cause of the accident."
6

Rainey and Knowlton disagree with Lieutenant Commander Morgan's opinion.

In a letter written to Lieutenant Commander Morgan about the "aircraft
mishap," Rainey, also a flight instructor with the United States Navy,
concluded that the mishap was not the result of pilot error but more probably
"caused by some form of pneumatic sensing/fuel flow malfunction, probably in
the fuel control unit." According to Rainey, this malfunction prompted an inflight "power interruption" or "rollback" making it impossible for Lieutenant
Commander Rainey to sustain sufficient power to maintain flight. Knowlton
agreed with Rainey's conclusion and on April 15, 1983 Rainey and Knowlton
filed separate suits in the United States District Court for the Northern District
of Florida, alleging negligence and strict product liability causes of action.
Beech Aircraft Corporation, the manufacturer of the T-34C Turbo-Mentor
aircraft, Pratt and Whitney Canada, Inc., the manufacturer of the engine
incorporated into the T-34C aircraft, and Beech Aerospace Services, Inc., the
United States Navy's contract maintenance service for the T-34C aircraft, were
named as defendants.

At trial, the only disputed issue was the cause of the fatal crash. Because both
Lieutenant Commander Rainey and Ensign Knowlton were not available to
testify and because the aircraft was almost totally destroyed by fire, the parties
relied heavily on opinions developed by expert witnesses. The defendants also
relied on the opinions contained in the investigative report prepared by
Lieutenant Commander Morgan. Pointing to Lieutenant Commander Morgan's
opinion that pilot error was the most probable cause of the crash, the
defendants argued that they should not be held responsible. The jury agreed.

On August 1, 1984 Rainey and Knowlton, complaining about two of the trial
judge's evidentiary rulings, filed a motion for a new trial.4 The judge denied the
motion. This appeal promptly followed.

II.
9

The district court admitted into evidence, over Rainey and Knowlton's
objection, excerpts from the investigative report prepared by Lieutenant
Commander Morgan.5 On appeal, Rainey and Knowlton argue that many of the
excerpts from the investigative report, specifically Lieutenant Commander
Morgan's opinions, should not have been admitted into evidence because these
opinions did not fall within the public records exception to the general hearsay
rule.6

10

To be admissible, the excerpts from Lieutenant Commander Morgan's report

must satisfy the hearsay exception for public records and reports. See
Fed.R.Evid. 803(8). Rule 803(8) provides a hearsay exception in civil actions
for "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." Lieutenant Colonel Habermacher, with
authorization from the Manual of the Judge Advocate General Sec. 0902, at 9-3
to -5, appointed Lieutenant Commander Morgan to conduct an investigation
into the circumstances surrounding the aircraft accident. Lieutenant
Commander Morgan's report, since it was prepared in conjunction with an
authorized Judge Advocate General investigation, is a public record. Moreover,
because no evidence was introduced to show that the report lacked
trustworthiness, we find that the report was indeed trustworthy.7 Thus, the
factual findings contained in the report are admissible under Rule 803(8).

11

Cases interpreting Rule 803(8), however, disclose a difference of opinion as to

the meaning of "factual findings." Compare Complaint of American Export
Lines, Inc., 73 F.R.D. 454, 458 (S.D.N.Y.1977) (evaluative conclusions or
opinions are not "factual findings"); with Complaint of Paducah Towing Co.,
692 F.2d 412, 420 (6th Cir.1982) (evaluative reports are admissible as "factual
findings" if based upon circumstantial evidence) (citation omitted).8 In deciding
how to interpret "factual findings" in the context of this case, we are bound by
the Fifth Circuit's interpretation in Smith v. Ithaca Corp., 612 F.2d 215 (5th
Cir.1980).9 In Smith, the Fifth Circuit considered the admissibility of a Coast
Guard Marine Board of Investigation Report and found that the "evaluative
conclusions and opinions of the Coast Guard Marine Board of Investigation
contained in the report should not have been admitted into evidence." Id. at 222.
The Fifth Circuit noted that:

12 language of Rule 803 suggests that "factual findings" defines something other
the
than "opinions" and "diagnoses" which are admissible under Rule 803(6) when
contained in the record of "a regularly conducted business activity." Rule 803(8),
although similar to Rule 803(6), substitutes the term "factual findings" for
"opinions" and "diagnoses." Since these terms are used in similar context within the
same Rule, it is logical to assume that Congress intended that the terms have
different and distinct meanings.
13

612 F.2d at 221-22 (citations omitted). Thus, while the defendants urge us to
follow "[t]he prevailing view ... that all evaluative conclusions are within the
scope of Rule 803(8)(C)," Walker v. Fairchild Industries, 554 F.Supp. 650, 653
(D.Nev.1982) (citations omitted); see also Cohen v. General Motors Corp., 534
F.Supp. 509, 512 (W.D.Mo.1982) ("it appears that the more expansive reading

[of Rule 803(8) ] is gaining favor") (citations omitted), we are not free to do so.
The Fifth Circuit in Smith clearly launched this court's precedent in a different
direction, a direction we must follow. We therefore hold that the district court
erred in admitting into evidence the evaluative conclusions and opinions
contained in Lieutenant Commander Morgan's report.
14

Having concluded that the district court erred in admitting into evidence these
evaluative conclusions and opinions, we must now determine whether this error
was harmless. See Collins v. Wayne Corp., 621 F.2d 777, 782 (5th Cir.1980).
We hold that it was not.

15

Several of Lieutenant Commander Morgan's opinions touched on the cause of

the aircraft crash--the ultimate issue the jury was to decide. These opinions
were submitted to the jury without ever having been tested by crossexamination. Moreover, the defendants were able to capitalize on the improper
admission of these opinions by highlighting the opinions to the jury during
closing argument. The jury returned a verdict for the defendants but the
improper admission of Lieutenant Commander Morgan's opinions may have
influenced this verdict. The admission of these opinions, therefore, cannot be
considered harmless. The district court committed reversible error; Rainey and
Knowlton must be afforded a new trial.

III.
16

Another issue raised by this appeal is whether the district court improperly
restricted Rainey's trial testimony. A.H. Toothman, counsel for Beech Aircraft
Corporation, called Rainey as an adverse witness. Rainey was questioned about
the letter he had written to Lieutenant Commander Morgan about the "aircraft
mishap." The questions concerned paragraphs two and four of the letter. In
paragraph two, Rainey had written that before the training exercise, his wife,
Lieutenant Commander Rainey, was under "unnecessary" pressure. According
to Rainey, his wife had attempted to cancel the exercise "[o]n three separate
occasions," and "was observed to terminate [one] conversation in an
uncharacteristically heated and disgusted manner." In paragraph four, Rainey
had written that the aircraft piloted by his wife violated "pattern integrity ... as it
turned crosswind without proper interval." Rainey had also admitted that either
his wife or Ensign Knowlton "react[ed] instinctively and abruptly by initiating a
hard right turn, away from [the aircraft piloted by Lieutenant Colonel
Habermacher]." Because these statements tended to support the defendants'
theory that pilot error led to the crash, the district court, over Rainey and
Knowlton's objection, permitted Mr. Toothman's inquiry.

17

During Rainey's cross-examination, however, the district court sustained the

defendants' objection to the following question propounded by Dennis K.
Larry, counsel for Rainey and Knowlton: "In the same letter to which Mr.
Toothman made reference to in his questions, sir, did you also say that the most
probably [sic] primary cause of this mishap was rollback?" The district court
did not allow the question, holding that the question improperly sought to elicit
an opinion from a non-expert witness. On appeal, Rainey and Knowlton argue
that the district court improperly excluded Rainey's testimony.10 We agree.

18

A district court's evidentiary rulings are discretionary and "will not be disturbed
on appeal absent a clear showing of an abuse of discretion." United States v.
Russell, 703 F.2d 1243, 1249 (11th Cir.1983) (citations omitted). Under this
standard, we must conclude that the district court committed reversible error in
limiting Rainey's testimony.

19

Federal Rule of Evidence 106 provides: "When a writing or recorded statement

or part thereof is introduced by a party, an adverse party may require him at
that time to introduce any other part or any other writing or recorded statement
which ought in fairness to be considered contemporaneously with it." Rule 106
is based on the "rule of completeness," and seeks to avoid the unfairness
inherent in "the misleading impression created by taking matters out of
context."11 Fed.R.Evid. 106 advisory committee note.

20

Here, Rainey was questioned about a letter he had written to Lieutenant

Commander Morgan. The defendants questioned Rainey about several
statements in this letter that, in isolation, seemed to support the defendants'
position that pilot error caused the crash. Mr. Larry, counsel for Rainey and
Knowlton, sought to place these statements in perspective by questioning
Rainey about paragraph five of the letter. In paragraph five, Rainey had
concluded that "[t]he most probale [sic] primary cause factor of this aircraft
mishap is a loss of useful power (or rollback) caused by some form of
pneumatic sensing/fuel flow malfunction." This statement would have placed
the prior statements in context and clearly rebutted the misleading impression
created by the prior statements alone.

21

The court, therefore, erred in permitting the defendants to examine Rainey

about portions of his letter while prohibiting cross-examination about other
relevant portions.12 Because paragraph five of the letter would have harmonized
the prior statements with Rainey's stance at trial, the jury was given an
incomplete and misleading impression of Rainey's position. Under the "rule of
completeness" embodied in Rule 106, the limitation of Rainey's testimony was

thus inherently unfair and an abuse of discretion. Rainey and Knowlton are
entitled to a new trial.
IV.
22

We hold that the trial judge committed reversible error in 1) admitting into
evidence the evaluative conclusions and opinions contained in Lieutenant
Commander Morgan's investigative report and 2) limiting Rainey's trial
testimony. We therefore reverse the judgment entered against Rainey and
Knowlton and remand for a new trial.

23

REVERSED AND REMANDED.

JOHNSON, Circuit Judge, concurring specially:

24

I concur with the panel's opinion in this case. I write separately to urge that,
while we are clearly bound by Smith v. Ithaca Corp., 612 F.2d 215 (5th
Cir.1980), to hold that the evaluative conclusions contained in Lieutenant
Commander Morgan's report are not admissible under Fed.R.Evid. 803(8)(c),
our interpretation of this rule is ripe for reconsideration.

25

Smith is an anomaly among the circuits. The majority view favors broad
admissibility under Rule 803(8)(c)'s "factual findings" standard. See, e.g., Ellis
v. International Playtex, Inc., 745 F.2d 292, 300-301 (4th Cir.1984) ("[I]t is
well established that the phrase should be interpreted broadly"). Weinstein's
evidence treatise advocates such a reading, Weinstein on Evidence Sec. 803(8)
(1985) ("[i]f the report states a conclusion that would be helpful--and is
reliable--it should be admitted"), and the Advisory Committee's Note may be
read as consonant with this interpretation, id.

26

Broad admissibility releases trial judges from the duty to draw sometimes
arbitrary lines between fact and opinion, and focuses the court's inquiry instead
on the trustworthiness and relevance of the reports in question. This case
presents an appropriate opportunity for reconsideration of this critical
evidentiary issue by the full Court.

Honorable Walter E. Hoffman, Senior U.S. District Judge for the Eastern
District of Virginia, sitting by designation

Rainey brought suit individually, as the personal representative of his wife's

estate, and on behalf of his minor children, Cynthia Ann Rainey and Katharine
Marie Rainey. Knowlton sued individually, as the personal representative of her
husband's estate, and on behalf of her minor children, Ramsey Nia Knowlton
and Branigan McDermott Knowlton. By order dated March 20, 1984 the two
cases were consolidated "for all purposes including consolidation for trial."

A "touch and go" is a training exercise employed to familiarize students with

takeoffs and landings. After takeoff, the student circles the airfield in an oval or
racetrack pattern and then lands the aircraft. Upon landing, the student does not
stop the craft, but accelerates to take off again

It is, of course, impossible to determine whether Lieutenant Commander

Rainey or Ensign Knowlton was in control of the aircraft at this time. Witnesses
knowledgeable in flight instruction, however, testified that Lieutenant
Commander Rainey, a trained pilot and flight instructor, would, under these
circumstances, assume control over the aircraft

Rainey and Knowlton objected to the admissibility of several opinions

contained in Lieutenant Commander Morgan's investigative report. Rainey and
Knowlton also objected to the restriction of Rainey's trial testimony. These
objections are now raised on appeal

On March 20, 1984, at the pretrial conference, the district court ruled that
Lieutenant Commander Morgan's report was trustworthy and admissible but
"only on its factual findings and would not be admissible insofar as any
opinions or conclusions are concerned." On July 10, 1984, the day before trial,
the district court reversed in part its prior ruling. At that time, the judge decided
to admit into evidence the opinions and conclusions contained in the
investigative report
In light of the court's ruling, Rainey and Knowlton requested an opportunity to
review Lieutenant Commander Morgan's report and "leave, in the event we so
decide, to call as a witness such person or persons who might not have been
called at this trial, but who could present evidence concerning that conclusion
[that pilot error was the "most probable cause" of the crash] and the
trustworthiness of it." The district court granted the request.

The following opinions were admitted into evidence:

Examination of the findings of fact, aircraft history, and inspection records

indicate no irregularities which can be specified as a cause of the crash of
3E955

There is no factual evidence of command or supervisory error

There is no factual evidence to indicate that LCDR Rainey or ENS Knowlton

were not physically, socialogically [sic], or mentally prepared to complete their
flight

There is evidence to indicate that the failure of ENS Knowlton's rotary buckle
may have contributed to the severity of his head injury
***

The most probable cause of the accident was the pilots failure to maintain
proper interval

The Advisory Committee on the Proposed Rules notes that Fed.R.Evid. 803(8)
"assumes admissibility in the first instance but with ample provision for escape
if sufficient negative factors are present." Fed.R.Evid. 803(8) advisory
committee note. Thus, the burden was upon Rainey and Knowlton to show that
the report was inadmissible because its sources of information or other relevant
circumstances indicated a lack of trustworthiness. Melville v. American Home
Assurance Co., 584 F.2d 1306, 1316 (3d Cir.1978) (citing Muncie Aviation
Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975)). That burden was
not met here
Rainey and Knowlton argue that they were unable to meet their burden because
they were surprised by the district court's ruling the day before trial admitting
into evidence Lieutenant Commander Morgan's opinions. But Rainey and
Knowlton knew months before trial that the defendants would seek to admit
Lieutenant Commander Morgan's report into evidence. Still, Rainey and
Knowlton made no effort to attack the qualifications of Lieutenant Commander
Morgan or the methodology he employed in conducting the investigation. In
fact, when the trustworthiness of the report was discussed during the pretrial
conference, Rainey and Knowlton admitted that there was no evidence to
indicate that the report was untrustworthy.
On July 10, 1984 when the judge decided to admit the opinions into evidence,
he granted Rainey and Knowlton leave to review the report and, if they so
chose, to present evidence concerning the trustworthiness of the opinions.
Rainey and Knowlton presented no such evidence, and did not seek a
continuance.
Thus, in light of the fact that there was no evidence presented to show that the
report lacked trustworthiness we agree with the district court in finding that the
report was trustworthy.

The legislative history of the Rule reveals the origins of the conflict. The House

Committee on the Judiciary intended that " 'factual findings' be strictly

construed and that evaluations or conclusions contained in public reports shall
not be admissible under this Rule." H.R.Rep. No. 93-650, 93d Cong., 2d Sess.
4, reprinted in 1974 U.S.Code Cong. & Ad.News 7075, 7088. On the other
hand, the Senate Committee on the Judiciary took "strong exception to this
limiting understanding of the application of the rule." S.Rep. No. 93-1277, 93d
Cong., 2d Sess. 4, reprinted in 1974 U.S.Code Cong. & Ad.News 7051, 7064.
The Senate Judiciary Committee recommended a liberal interpretation of
"factual findings" so as to include "evaluative reports." Id. The Advisory
Committee on the Proposed Rules also suggested that "factual findings" might
encompass evaluative reports. See Fed.R.Evid. 803(8) advisory committee note

The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir.1981) (en banc), adopted as precedent decisions of the former Fifth Circuit
rendered prior to October 1, 1981

10

Federal Rule of Evidence 103(a)(2) cautions that error may not be predicated
upon a ruling excluding evidence unless "the substance of the evidence was
made known to the court by offer or was apparent from the context within
which questions were asked." United States v. Winkle, 587 F.2d 705, 710 (5th
Cir.) (quoting Fed.R.Evid. 103(a)(2)), cert. denied, 444 U.S. 827, 100 S.Ct. 51,
62 L.Ed.2d 34 (1979); see also 1 J. Weinstein & M. Berger, Weinstein's
Evidence p 103 (1985). While Rainey and Knowlton failed to make an offer of
proof indicating the substance of Rainey's excluded testimony, the substance of
the testimony was readily apparent from the language of the question the
defendants objected to

11

Technically, Rule 106 is limited in its application to instances when a party

introduces a writing or recorded statement into evidence. Here, we find the
defendants' questions concerning Rainey's letter tantamount to the introduction
of the letter into evidence. We therefore apply the concerns of the Rule-fairness and completeness--to this case

12

The district court's limitation of Rainey's testimony was erroneous for another
reason as well. As Rainey and Knowlton noted, the district court permitted the
defendants' inquiry into Rainey's letter, finding the statements in the letter
admissible against Rainey as a prior inconsistent statement under Fed.R.Evid.
801(d)(1)(A) and admissible against Knowlton as an adoptive admission under
Fed.R.Evid. 801(d)(2)(B). Mr. Larry sought to question Rainey about
paragraph five of the letter. Rainey and Knowlton contend that Rainey's
statement in paragraph five should have been ruled admissible under
Fed.R.Evid. 801(d)(1)(B) as "a prior consistent statement made by him offered
to rebut an implied or express charge that in other parts of his letter he had

made statements inconsistent with his trial theory." Brief for Appellants at 2829. We agree