Threadgill v. Armstrong World Industries, Inc.

MANSMANN, Circuit Judge.

This appeal requires that we resolve an evidentiary dispute arising in the context of a personal injury action alleging negligence and conspiracy on the part of various manufacturers and distributors of asbestos-containing products. The plaintiffs appeal the district court's denial of their motion for a new trial following a jury verdict in favor of the defendants, contending that the district court erred in excluding certain exhibits, well-known in asbestos litigation, as the "Sumner Simpson documents," on authenticity grounds. The district court declined to review the disputed documents and based its ruling of inadmissibility on a prior decision involving essentially the same documents rendered by another district judge in an unrelated case in the same district. Because we conclude that the district court erred in excluding the documents on the basis of authenticity, we will reverse the order of the district court and remand the case for a new trial.

On March 18, 1988, the widow and children of Walter Threadgill filed suit in the United States District Court for the District of Delaware against multiple defendants. The plaintiffs contended that as a result of the defendants' negligent failure to warn of health hazards associated with asbestos, and conspiracy to conceal those hazards, Walter Threadgill was exposed to asbestos, contracted mesothelioma, and died. Prior to trial, all of the defendants except the Manville Corporation Asbestos Disease Compensation Fund ("the Fund"), were dismissed on limitations grounds.

In anticipation of trial, the parties filed witness and exhibit lists. Among the documents listed by the plaintiffs were some of the approximately 6,000 so-called "Sumner Simpson documents." These documents, which have been considered with some frequency in the context of asbestos litigation, consist primarily of correspondence among a former president of Raybestos-Manhattan Sumner Simpson, Johns-Manville's former in-house counsel Vandiver Brown, and others. The documents, originally produced by Raybestos-Manhattan in the course of nation-wide asbestos litigation, have been offered by various plaintiffs in other asbestos-related actions in an attempt to show that as early as the 1930's, asbestos manufacturers knew of the health hazards associated with asbestos and knowingly concealed those dangers. While many courts considering these documents have admitted them, others, responding to various defense objections, have not....

The history of the Sumner Simpson documents can be traced through a summary of the original deposition testimony of William Simpson, Sumner Simpson's son.

The William Simpson deposition establishes that Sumner Simpson was the president of Raybestos-Manhattan, Inc. from the 1930's until his death in the 1950's. William Simpson, who spent his career at Raybestos-Manhattan and also served as president, testified that he was personally aware of the fact that Sumner Simpson had stored personal files in the Raybestos-Manhattan vault. The vault, in which William Simpson had seen documents filed, was secured by a combination lock, with access prior to 1969 limited to Sumner Simpson, William Simpson, two secretaries and the security guards. William Simpson never received reports of theft or tampering.

In 1969, the box containing the papers at issue was moved to William Simpson's Bridgeport, Connecticut office where it remained secure in a closet until 1974. In 1974, the box was delivered to Raybestos-Manhattan's Director of Environmental Affairs, John Marsh. At some point between 1974 and 1977, Marsh told Simpson that the papers were relevant to asbestos disease and, in 1977, the papers were transferred to lawyers for Raybestos-Manhattan pursuant to a document production request in a then pending lawsuit.

While the original documents remain in the possession of Raymark (the successor to Raybestos-Manhattan), copies were produced during discovery in this matter. The plaintiffs contend that the documents show that Johns-Manville had knowledge of health-related asbestos hazards and conspired with Raybestos-Manhattan to suppress information regarding these risks. Brief excerpts from these documents illustrate why the plaintiffs desire to have them admitted.

In a letter dated September 25, 1935, written on "Asbestos" magazine letterhead and signed "A.S. Rossiter," Rossiter wrote to Sumner Simpson at Raybestos-Manhattan asking whether Simpson would object to "Asbestos" printing an article on the company's dust control procedures. The letter included the following:

You may recall that we have written you on several occasions concerning the publishing of information, or discussion of, asbestosis and the work which has been and is being done, to eliminate or at least reduce it.

Always you have requested that for certain obvious reasons we publish nothing, and naturally your wishes have been respected.

A carbon copy of an October 1, 1935 letter from Bridgeport, Connecticut (Raybestos headquarters), to Vandiver Brown, general counsel for Johns-Manville, indicates that the Rossiter letter was enclosed. The copy, while unsigned, contains the word "President" beneath the signature line. The initials "SS-G" appear in the bottom left-hand corner of the copy. The letter, presumed to have been written or dictated by Sumner Simpson, and typed by Miss Garvey reads in part:

As I see it personally, we would be just as well off to say nothing about it until our survey is complete. I think the less said about asbestosis, the better off we are, but at the same time, we cannot lose track of the fact that there have been a number of articles on asbestos dust control and asbestosis in the British trade magazines. The magazine "Asbestos" is in the business to publish articles affecting the trade and they have been very decent about not re-printing the English articles.

Vandiver Brown apparently received the Sumner Simpson letter as, on October 3, 1935, Brown wrote a letter to Simpson on Johns-Manville letterhead. This letter acknowledged receipt of the September 25th Rossiter letter and read as follows:

I quite agree with you that our interests are best served by having asbestosis receive the minimum of publicity. Even if we should eventually decide to raise no objection to the publication of an article on asbestosis in the magazine in question, I think we should warn the editors to use American data on the subject, rather than English. Dr. Lanza has frequently remarked, to me personally and in some of his papers, that the clinical picture presented in North American localities where there is an asbestos dust hazard is considerably milder than that reported in England and South Africa.

The plaintiffs contend that these documents indicate that certain asbestos manufacturers knew of the health hazards posed by asbestos and acted in concert to conceal those hazards....

Our review of the district court's exclusion of the Sumner Simpson documents requires that we focus on the issue of authentication. Federal Rule of Evidence 901(a) provides that "[t]he requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." We have stated the standard to be applied in authenticating a document under Rule 901 as follows:

[The] showing of authenticity is not on a par with more technical evidentiary rules, such as hearsay exceptions governing admissibility. Rather, there need be only a prima facie showing, to the court, of authenticity, not a full argument on admissibility. Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence. The only requirement is that there has been substantial evidence from which they could infer that the document was authentic.

United States v. Goichman, 547 F.2d 778, 784 (3d Cir. 1976). Where the authenticity of the Summer Simpson documents has been challenged, the documents have most often been analyzed under Federal Rule of Evidence 901(b)(8), the ancient document provision. Under the ancient document provision, a document is admissible if it "(A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered." Once a document qualifies as an ancient document, it is automatically excepted from the hearsay rule under Fed. R. Evid. 803(16).

While the ancient documents provision has not been a subject of frequent discussion in reported opinions, those cases which do address the provision establish that the point of a Rule 901(b)(8) inquiry is to determine whether the documents in question are, in fact, what they appear to be. "Although the rule requires that the document be free of suspicion, that suspicion does not go to the content of the document but rather to whether the document is what it purports to be...." United States v. Kairys, 782 F.2d 1374, 1379 (7th Cir.), cert. denied, 476 U.S. 1153, 106 S. Ct. 2258, 90 L. Ed. 2d 703 (1986). Questions as to the documents' content and completeness bear upon the weight to be accorded the evidence and do not affect the threshold question of authenticity. Id. The determination that a set of documents are, indeed, prima facie authentic in no way precludes counsel from challenging the content of the documents or from arguing that missing documents subject the contents to a different interpretation....

Having reviewed the Sumner Simpson documents originally contained on the plaintiffs' exhibit list and the relevant portions of the original William Simpson deposition, we are convinced that on the basis of these materials alone, the plaintiffs have met their burden of establishing the prima facie authenticity of the documents. The Simpson deposition indicates to us that the manner of retaining the Sumner Simpson documents was consistent with what might have been expected.

In view of this clear and unsuspicious history of custody ... the papers are authentic under the standard of 901(b)(8). Defendants cannot put forward so much as a hint that these documents have been tampered with in any way. Nor in [our] perusal of the transcripts of the argument on similar motions in other asbestos litigation have [we] found any serious suggestion that the documents are fake or that they have been altered.

Parsons v. Celotex Corporation, C.A. No. CV 478-319, slip op. at 3 (S.D. Ga. Aug. 27, 1980). We conclude that the district court's exclusion of the Sumner Simpson documents ... was not consistent with the sound exercise of judicial discretion and that the ultimate determination of the authenticity of these documents was a question for the jury.

We have concluded that the district court's ... conclusions ... [are] not consistent with a sound exercise of discretion and that the error was not harmless. Thus we will reverse the order of the district court and remand this matter for a new trial on the counts of negligence and conspiracy.