Academic journal article
By Babcock, Dave
Journal of Environmental Health , Vol. 74, No. 8
An environmental health inspector is writing up his or her restaurant inspection report. An epidemiologist is logging food history with an ill member of the public. In either case, the possibility that the document may someday be held to close legal scrutiny may be the furthest thing from their minds. But, while an exceedingly small percentage of food poisoning cases become legal matters, it does happen. And when it does, the documents generated by local health agencies are often front and center.
The public health documents your agency creates are most likely the most accurate collection of information--the closest thing to "the truth" that a judge or jury may get access to. Thus, making sure that those records will be admitted, and stand up to scrutiny from both sides of a legal case, is an important task. (1)
Step one is making sure that the documents are admissible--meaning that the judge will allow the jury to consider them as part of the evidence in the case. Getting into a full discussion of admissibility would require a dissection of an evidence rule, the "hearsay" rule. Each state has its own hearsay rules, but the Federal Rule, Rule 801 et. seq. serves as a workable example. Hearsay is a term that is used more often than it is understood, and this forum is not the place to delve into its finer points. In short, legal rules of evidence are designed to admit evidence deemed reliable and preclude that which is deemed unreliable. The underlying idea of the hearsay rule is that statements made out of court, orally or in writing, are generally unreliable, and therefore inadmissible. (2)
What does this mean for that environmental health inspection report, or the food history taken down by an epidemiologist? It could mean that the admissibility of these documents can be challenged in court as an out of court statement, as hearsay. Thankfully, there are a number of well-settled exceptions to the hearsay rule that will generally allow documents generated in public health investigations to be admitted. Under the Federal Rule, the most likely used enumerated exceptions would be exception No. (6) Records of regularly conducted business activity and exception No. (8) Public records and reports. Thus, a lawyer who is trying to use public health documents as evidence in court will need to convince a judge that one of these or some other exception to the hearsay rule will apply.
Once the document is in evidence, there is still the matter of its impact on the jury. There are several recommendations to be made in this regard. My first suggestion is to involve photographs wherever possible to supplement reports. For example, our firm handled a case involving an E. coli O157:H7 outbreak at a buffet-style restaurant. The buffet style of the restaurant complicated the isolation of a single suspect food. Environmental health inspectors, though, documented raw meat being stored above a ready-to-eat dessert that was one of the foods showing statistical significance as a potential source of the illnesses. A quick photograph of the condition of the walk-in cooler would have greatly reduced any confusion or dispute about the accuracy of this portion of the report. …