UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-20056

Summary Calendar

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JACKIE SMITH, Individually and on behalf of all beneficiaries

of BERNARD ALLEN, deceased, ET AL.,

Plaintiffs,

JACKIE SMITH, Individually and on behalf of all beneficiaries

of BERNARD ALLEN, deceased;

Plaintiff-Appellant.

versus

ISUZU MOTORS LIMITED, ET AL.,

Defendants,

AMERICAN ISUZU MOTORS INCORPORATED;

ISUZU MOTORS AMERICAN INCORPORATED,

Defendants-Appellees.

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Appeals from the United States District Court for the

Southern District of Texas

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April 2, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge:

On July 22, 1994, Bernard Allen died in a single-vehicle

accident, while driving a 1987 Isuzu Trooper. Allen’s mother,

Jackie Smith, individually and on behalf of the beneficiaries of

his estate, brought suit against American Isuzu Motors, Inc., Isuzu
 

1 The district court dismissed Isuzu Motors Limited because

plaintiffs failed to obtain service of process on it in a timely

manner. Smith does not appeal this dismissal.

2

Motors America, Inc., and Isuzu Motors Limited.1 Smith claimed

that the Trooper was unreasonably dangerous because it had a

propensity to roll over, that it was not crashworthy because the

windshield allowed Allen to be ejected, that Isuzu’s warnings were

inadequate, and that the defendants were negligent. The district

court rendered judgment on a take-nothing jury verdict against

plaintiffs. 

Appellant challenges three of the district court’s evidentiary

rulings, which excluded evidence relating to crashworthiness and

unreasonable dangerousness. We affirm.

I.

We review the district court’s evidentiary rulings for abuse

of discretion. Johnson v. Ford Motor Co., 988 F.2d 573, 578 (5th

Cir. 1993). Under Federal Rule of Civil Procedure 61, we may not

set aside a verdict based on an error in the exclusion of evidence,

“unless refusal to take such action appears to the court

inconsistent with substantial justice.” Fed. R. Civ. P. 61. To

vacate a judgment based on such an error, we “must find that the

substantial rights of the parties were affected.” Carter v.

Massey-Ferguson, Inc., 716 F.2d 344, 349 (5th Cir. 1983).
 

2 Smith argues that the district court did not refuse to

admit the article because of the different year models involved but

on other grounds. Regardless, this court may affirm a district

court’s evidentiary ruling on any grounds presented to the district

court. See Metallurgical Indus. Inc. v. Fourtek, Inc., 790 F.2d

1195, 1207 (5th Cir. 1986). Defendants-appellees squarely raised

the difference in year models as grounds for excluding the article.

3

II.

A.

Smith first complains that the district court erroneously

refused to admit a 1996 Consumer Reports article regarding the

stability of 1995 and 1996 Isuzu Troopers. The article gave 1995

and 1996 Isuzu Troopers a “not acceptable” rating because Consumer

Reports’ testing showed that those vehicles had a propensity to

roll over. The article, however, specifically disclaimed its

applicability to earlier year-model Troopers: “The Not Acceptable

rating does not apply to 1994 and earlier Troopers, which had a

slightly different suspension.” Id. Thus, the probative value of

this piece of evidence was negligible, while the risk of confusing

the issues and misleading the jury was significant. See Fed. R.

Evid. 403. Accordingly, we conclude that the district court did

not abuse its discretion in refusing to admit the article.2

B.

Plaintiffs next argue that the district court abused its

discretion by refusing to admit three memoranda prepared by staff

members of the National Highway Traffic Safety Administration (the

“NHTSA”). Those memoranda related to a petition filed with the

NHTSA in 1986 by Colorado Congressman Timothy Wirth, which asked
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that agency to establish stability standards for certain types of

passenger vehicles. This petition was based on the research of

Leon Robertson, who served as an expert for the plaintiffs in this

case. The NHTSA ultimately rejected the Wirth petition.

Nevertheless, plaintiffs sought to introduce the memoranda, in

which NHTSA staff members expressed opinions that support

Robertson’s methodology and the plaintiffs’ theory in this case. 

The district court excluded these memoranda on hearsay

grounds. Smith argues on appeal that these memoranda satisfy

Federal Rule of Evidence 803(8), which excepts certain public

records from the general rule that hearsay is inadmissible. That

rule exempts:

Records, reports, statements, or data compilations, in any

form, of public offices or agencies, setting forth (A) the

activities of the office or agency, . . . 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.

Fed. R. Evid. 803(8). We conclude that the district court properly

concluded that the memoranda did not fall within the scope of this

exception.

Smith first argues that the memoranda qualify as public

records within the meaning of Rule 803(8)(A). We disagree.

Although NHTSA staff members prepared the memoranda in the course

of evaluating the Wirth petition, the memoranda do not “set forth”

the “activities of the agency” within the meaning of Rule

803(8)(A). See, e.g., United States v. Vidaure, 861 F.2d 1337,

1340-41 (5th Cir. 1988) (holding that copies of defendant’s
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convictions contained in “pen packet” were admissible under public

records exception); Alexander v. Estepp, 95 F.3d 312, 314 (4th Cir.

1996) (holding that county’s registry of applicants for firefighter

position was a public record under Rule 803(8)(A)), cert. denied,

117 S. Ct. 1425 (1997); United States v. Ramirez, 45 F.3d 1096,

1101 (7th Cir. 1995) (holding that an automobile’s title history

was admissible under the public records exception).

Smith cites no case law in which Rule 803(8)(A) has been

applied to allow the admission of the preliminary or interim

evaluative opinions of agency staff members. Indeed, to apply Rule

803(8)(A) in the fashion Smith suggests would swallow whole Rule

803(8)(C) and its limitations. Rule 803(8)(C) provides a hearsay

exception for “factual findings resulting from an investigation

made pursuant to authority granted by law” unless those findings

lack trustworthiness. If memoranda reflecting the preliminary

opinions of agency staff members were admissible under Rule

803(8)(A), then Rule 803(8)(C)’s limitations would be meaningless.

We further conclude that the memoranda do not satisfy Rule

803(8)(C). The memoranda do not reflect “factual findings” of the

NHTSA. Rather, they embody the positions and opinions of

individual staff members, which the agency ultimately declined to

accept. Our conclusion is in accord with other circuits that have

held that interim agency reports or preliminary memoranda do not

satisfy Rule 803(8)(C)’s requirements. See Figures v. Board of

Pub. Util., 967 F.2d 357, 360 (10th Cir. 1992) (holding that a

draft of a proposed letter from an area director of a government
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agency to a municipal administrative agency was properly excluded

because it did not represent an agency finding); United States v.

Gray, 852 F.2d 136, 139 (4th Cir. 1988) (holding that the district

court properly refused to admit a tentative internal IRS referral

report because it did not contain “agency factual findings”); City

of New York v. Pullman, Inc., 662 F.2d 910 (2d Cir. 1981)(holding

that an interim recommendation by a transit authority staff member

to the transit authority administrator was not a factual finding of

an agency within the meaning of Rule 803(8)(C)); cf. United Air

Lines, Inc. v. Austin Travel Corp., 867 F.2d 737, 743 (2d Cir.

1989) (concluding that the district court did not abuse its

discretion in excluding government reports that the district court

concluded were untrustworthy because of the “interim or

inconclusive nature of the reports . . . .”). The cases relied

upon by Smith are inapposite.

For these reasons, we conclude that the district court in this

case acted within its discretion in excluding the NHTSA internal

memoranda on hearsay grounds. 

C.

Finally, Smith appeals from the district court’s refusal to

allow plaintiffs’ expert David Lowry to testify to the ultimate

issues of crashworthiness and unreasonable dangerousness.

We reject out of hand the plaintiffs’ complaint as to Lowry’s

crashworthiness opinion. The factual basis underlying Smith’s

crashworthiness theory was that Allen was ejected through the
 

3 Plaintiffs argue that the exclusion of Lowry’s testimony

was harmful because Robertson was a statistician, while Lowry was

an engineer. We are unpersuaded.

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Trooper’s windshield. The jury, however, specifically found that

Allen was not ejected through the windshield, and Smith does not

challenge that finding on appeal. Thus, the error, if any, in

excluding Lowry’s opinion on crashworthiness did not affect Smith’s

substantial rights.

As to the exclusion of Lowry’s opinion on unreasonable

dangerousness, the district court sustained Isuzu’s objection that

plaintiffs had failed to offer a sufficient foundation for his

testimony. Plaintiffs did not attempt to provide further

foundation for Lowry’s testimony at trial and do not provide any

argument on appeal as to why the foundation offered was sufficient.

Under these circumstances, we conclude that the district court did

not abuse its discretion in excluding his testimony as to the

ultimate issue of unreasonable dangerousness.

Moreover, even if the plaintiffs had offered a sufficient

foundation for Lowry’s opinion as to the ultimate issue of

unreasonable dangerousness, we find it unlikely that the absence of

that testimony affected the plaintiffs’ substantial rights. Lowry

was allowed to testify that the Trooper had a higher-than-average

center of gravity, a narrower-than-average track width, and that

these features made the vehicle more likely than other vehicles to

roll over. Additionally, plaintiffs’ expert Robertson was

permitted to testify that the Trooper was unreasonably dangerous

because of its tendency to roll over.3 
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III.

For these reasons, the judgment of the district court is

AFFIRMED.