FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`No. 20-15908
`
`D.C. No.
`3:15-cv-08019-
`SPL
`
`
`OPINION
`
`
`
`
`
`JAMIEN RAE JENSEN, individually
`and as parent and next friend of minor
`D.J. and as Personal Representative of
`the Wrongful Death Estate of unborn
`child C.J.; CHAVIS JOHNSON,
`individually and as Personal
`Representative of the Wrongful Death
`Estate of Butch Corey Johnson;
`MARGARET JOHNSON; FRANK
`JOHNSON; FRANCESCA
`JOHNSON; JUSTIN JOHNSON;
`HOLLY JOHNSON; DOMINIQUE
`JOHNSON; RAYMOND JENSEN,
`Sr.; LOUISE R. JENSEN; KATRINA
`JENSEN; RAYMOND JENSEN, Jr.;
`MURPHY JENSEN; NICOLE
`JENSEN; RYAN JENSEN; JUSTIN
`JENSEN,
`
`
`
` v.
`
`EXC, INC., DBA D.I.A. Express,
`Inc., DBA Express Charters, a
`Nevada corporation; CONLON
`GARAGE, INC., a Colorado
`
`
`
`
`
`Plaintiffs-Appellants,
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`No. 20-15908
`
`D.C. No.
`3:15-cv-08019-
`SPL
`
`
`OPINION
`
`
`
`
`
`JAMIEN RAE JENSEN, individually
`and as parent and next friend of minor
`D.J. and as Personal Representative of
`the Wrongful Death Estate of unborn
`child C.J.; CHAVIS JOHNSON,
`individually and as Personal
`Representative of the Wrongful Death
`Estate of Butch Corey Johnson;
`MARGARET JOHNSON; FRANK
`JOHNSON; FRANCESCA
`JOHNSON; JUSTIN JOHNSON;
`HOLLY JOHNSON; DOMINIQUE
`JOHNSON; RAYMOND JENSEN,
`Sr.; LOUISE R. JENSEN; KATRINA
`JENSEN; RAYMOND JENSEN, Jr.;
`MURPHY JENSEN; NICOLE
`JENSEN; RYAN JENSEN; JUSTIN
`JENSEN,
`
`
`
` v.
`
`EXC, INC., DBA D.I.A. Express,
`Inc., DBA Express Charters, a
`Nevada corporation; CONLON
`GARAGE, INC., a Colorado
`
`
`
`
`
`Plaintiffs-Appellants,
`
`
`
`2
`
`JENSEN V. EXC INC.
`
`corporation; GO AHEAD
`VACATIONS, INC., a Massachusetts
`corporation; RUSSELL J. CONLON,
`individually; NATIONAL
`INTERSTATE INSURANCE CO.,
`
`
`
` Defendants-Appellees.
`
`
`
`
`
`
`
`
`
`
`
`Appeal from the United States District Court
`for the District of Arizona
`Steven P. Logan, District Judge, Presiding
`
`Argued and Submitted May 11, 2021
`San Francisco, California
`
`Filed September 22, 2023
`
`Before: WALLACE and COLLINS, Circuit Judges, and
`RAKOFF,* District Judge.
`
`Opinion by Judge Collins;
`Partial Concurrence and Partial Dissent by Judge Wallace
`
`
`
`* The Honorable Jed S. Rakoff, United States District Judge for the
`Southern District of New York, sitting by designation.
`
`
`
`JENSEN V. EXC INC.
`
`
`
`3
`
`SUMMARY**
`
`Evidence / Arizona and Tribal Law / Negligence
`
`
`
`
`
`
`
`In a diversity action involving personal injury and
`wrongful death claims arising from a collision between a
`sedan and a tour bus on a U.S. highway within the
`boundaries of the Navajo Nation reservation, the panel
`affirmed the district court’s judgment in favor of defendants
`to the extent that it dismissed all claims that had been
`asserted solely under Navajo law; reversed the district
`court’s judgment on the claims that were submitted for trial
`because
`the district court erroneously allowed
`the
`introduction of hearsay opinions of a non-testifying putative
`expert; and remanded for a new trial.
`
`The panel held that the district court abused its discretion
`in allowing, under the guise of impeachment evidence
`against plaintiffs’ expert witnesses, defendants’ counsel to
`elicit the opinions expressed in a police report prepared by
`the Arizona Department of Public Safety as to the cause of
`the accident. An opinion rendered by a person of unknown
`qualifications and contained in a report that, without any
`other explanation, relies uncritically on
`the hearsay
`statements of only selected witnesses and that does not
`expressly take account of, or address, any other relevant
`considerations, does not bear sufficient indicia of reliability
`and trustworthiness to be admitted as a competing expert
`“opinion” that a testifying expert may be required to address
`
`
`** This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`
`
`4
`
`JENSEN V. EXC INC.
`
`on cross-examination. The panel held that the error was not
`harmless, and reversed and remanded for a new trial.
`
`Next, the panel affirmed the district court’s conclusion
`that Arizona law applied and its resulting dismissal of all
`claims that were asserted only under Navajo law. In
`determining what law governed the case, the panel applied
`Arizona substantive law. Arizona courts generally follow
`the Second Restatement of Conflict of Laws in determining
`the applicable law in a tort case. Applying the relevant
`factors set forth in the Restatement, the panel agreed with the
`district court that Arizona law applied rather than Navajo
`law.
`
`Finally, plaintiffs challenged the district court’s refusal
`to hold that, as a matter of law, defendant Russell Conlon’s
`negligence proximately caused the accident. As a threshold
`issue, the panel held that it could not review the district
`court’s denial of summary judgment on the causation issue
`where an actual trial has intervened between the summary
`judgment ruling and the final judgment on appeal. The panel
`was limited to reviewing only the denial of plaintiffs’
`comparable arguments in its Fed. R. Civ. P. 50 motions for
`judgment as a matter of law at trial. The panel held that the
`district court properly denied plaintiffs’ motions for
`judgment as a matter of law because, under Arizona law, a
`reasonable jury could find that Conlon’s negligence was not
`the proximate cause of the accident.
`
`Concurring in part and dissenting in part, Judge Wallace
`would affirm the district court in all respects. He concurred
`with the majority that Arizona state law governed this action
`and that the district court did not err in denying plaintiffs’
`motion for judgment as a matter of law. He dissented from
`the majority’s resolution of the evidentiary question, and he
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`5
`
`would hold that the district court did not abuse its discretion
`in permitting defendants’ counsel to ask the plaintiffs’
`experts about the police officer’s report and conclusions
`because the report was sufficiently reliable to be considered
`and to be the subject of limited cross-examination.
`
`
`
`COUNSEL
`
`Geoffrey R. Romero (argued), Law Offices of Geoffrey R.
`Romero, Albuquerque, New Mexico; John P. Lavelle,
`University of New Mexico, Albuquerque, New Mexico;
`Thomas A. Biscup, Zebrowski Law, Shelby Township,
`Michigan; for Plaintiffs-Appellants.
`
`Eileen D. GilBride (argued), John T. Masterson, Elizabeth
`A. Gilbert, and Brandi C. Blair, Jones Skelton & Hochuli
`PLC, Phoenix, Arizona, for Defendants-Appellees.
`
`
`
`OPINION
`
`
`COLLINS, Circuit Judge:
`
`This diversity suit involves personal injury and wrongful
`death claims arising from a collision between a sedan and a
`tour bus on a U.S. highway within the boundaries of the
`Navajo Nation reservation. Before trial, the district court
`held that Arizona law applies to the accident, and it therefore
`dismissed all claims based on Navajo law. At trial, the jury
`rejected all remaining claims asserted by the sedan’s
`surviving passengers and by the estate of the sedan’s driver,
`and the district court entered judgment in favor of the tour
`bus driver, the tour organizer, and other related corporations.
`
`
`
`
`
`6
`
`JENSEN V. EXC INC.
`
`We affirm the dismissal of all claims that were based on
`Navajo law. However, we conclude that the district court
`erroneously permitted defense counsel to introduce, and to
`rely upon at trial, the hearsay opinions of a non-testifying
`putative expert, namely, the state trooper who investigated
`the crash and who expressed an opinion as to how it
`occurred. We therefore affirm in part, reverse in part, and
`remand for a new trial.
`
`I
`
`A
`
`On the night of September 20, 2004, a group of tourists
`participating in a National Parks tour organized by Go
`Ahead Vacations, Inc. (“Go Ahead Vacations”) stayed at a
`Hampton Inn on Highway 160 in Kayenta, Arizona, within
`the Navajo reservation. Go Ahead Vacations had chartered
`a bus for the tour from EXC, Inc. (“EXC”), which provided
`a 2004 Van Hool 57-seat motor coach driven by Russell
`Conlon. At around 8:00 AM on the morning of September
`21, Conlon, together with a tour guide and 38 passengers,
`boarded the bus to head out to the Grand Canyon. The
`Hampton Inn from which they departed is located on the
`north side of U.S. Highway 160, which is an east-west road
`that “is open to the public and maintained by the State of
`Arizona under a federally granted right-of-way over Navajo
`Nation land.” EXC Inc. v. Jensen, 2012 WL 3264526, at *1
`(D. Ariz. Aug. 9, 2012), aff’d, 588 F. App’x 720 (9th Cir.
`2014), cert. denied, 579 U.S. 941 (2016). Driving the tour
`bus, Conlon turned to the right out of the Hampton Inn’s
`driveway, and the bus began heading westbound on
`Highway 160.
`
`At the point at which the tour bus entered Highway 160
`in front of the Hampton Inn, the highway has two westbound
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`7
`
`travel lanes. However, shortly down the road to the west,
`those two lanes merge into one. Just before he turned
`westbound onto Highway 160, Conlon looked to the east and
`saw a Chevy Tahoe (driven by Bert Wisner) turn out of a
`nearby Burger King into the left-most westbound lane of
`Highway 160. Despite seeing the Tahoe turn into the left-
`most lane, Conlon turned onto the highway and then
`proceeded to move into that very same left-most lane before
`the Tahoe had passed the bus. Presumably annoyed that the
`slow-moving 40,000-lb. bus had turned directly in front of
`him in the left lane rather than stay in the right lane, Wisner
`moved his vehicle into the right lane and began catching up
`to the bus.
`
`At the same time, a Pontiac Sunfire sedan driven by
`Butch Corey Johnson was proceeding eastbound on
`Highway 160. In the front passenger seat of the sedan was
`his wife, Jamien Rae Jensen, who was holding their one-
`year-old son D.J. and who was also pregnant with their
`unborn second child. The front left of Johnson’s sedan
`collided with the front left of the tour bus. Johnson died as
`a result of the crash, Jensen and their son D.J. suffered
`injuries, and Jensen’s unborn child was killed. At the time
`of the collision, Wisner’s Tahoe was next to the bus. Both
`vehicles veered to the right, following roughly parallel paths
`until they came to rest off the north side of the westbound
`highway, about 20 to 25 feet apart from each other.
`
`At the time of the accident, Highway 160 had just been
`resurfaced and the lanes were marked with temporary yellow
`tabs instead of painted lines. The parties agree that the
`accident occurred in the vicinity of the left-most westbound
`lane, but they disagree about most other major points about
`exactly what happened. Plaintiffs’ theory at trial was that
`Johnson was driving in the lane immediately to the south of
`
`
`
`
`
`8
`
`JENSEN V. EXC INC.
`
`the left-most westbound lane (which was either a center,
`universal turn lane or was the left-most eastbound lane); that
`Conlon, distracted by Wisner’s nearby vehicle, entered
`Johnson’s lane; and that Conlon veered to the right shortly
`before the impact. Defendants’ theory was that Johnson
`crossed into the westbound lanes and collided with the bus.
`
`B
`
`The ensuing tort litigation was first filed in the courts of
`the Navajo Nation in 2006, but we ultimately held in
`December 2014 that the tribal court lacked jurisdiction. See
`EXC, Inc., 588 F. App’x at 722. Two months later, this
`lawsuit was filed in federal court by Jensen, suing
`individually and on behalf of D.J., and by Johnson’s brother
`Chavis Johnson, as the representative of Johnson’s wrongful
`death estate (collectively, “Plaintiffs”).
` Named as
`Defendants were Conlon, EXC, Go Ahead Vacations, and
`another corporation
`related
`to Conlon
`(collectively,
`“Defendants”). Asserting that Navajo law applied and
`permitted additional persons to sue for damages arising from
`Johnson’s death, the original complaint named, as additional
`plaintiffs, the wrongful death estate of Jensen’s unborn child
`and several additional family members other than Jensen and
`D.J. The complaint also asserted, based on Navajo law,
`direct claims against EXC’s insurer. However, the district
`court subsequently granted Defendants’ motion
`for
`judgment on the pleadings and held that Arizona law, not
`Navajo law, governed this case. Accordingly, the court held
`that “Plaintiffs and Defendants that have been made party to
`this suit pursuant only to Navajo and customary law are
`dismissed with prejudice.”
`
`Plaintiffs then filed their operative First Amended
`Complaint. That complaint asserted two causes of action:
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`9
`
`(1) a claim for personal injuries and related damages caused
`by negligence, negligence per se, and aggravated
`negligence; and (2) a claim, based on similar alternative
`theories of negligence, for wrongful death. The case
`ultimately proceeded to a jury trial. After the district court
`denied Plaintiffs’ motion for judgment as a matter of law
`under Federal Rule of Civil Procedure 50(a), the case was
`submitted to the jury, which rendered a special verdict
`finding that Defendants were not at fault for the death of
`Johnson or for the injuries to Jensen and D.J. The clerk
`entered judgment on the jury verdict for Defendants in
`December 2019, and Plaintiffs thereafter filed a timely
`renewed motion for judgment as a matter of law under Rule
`50(b). The district court denied that motion in April 2020,
`and Plaintiffs timely appealed. See FED. R. APP. P.
`4(a)(4)(A)(i).
`
`II
`
`Plaintiffs argue that the district court erred in allowing,
`under the guise of impeachment evidence against Plaintiffs’
`expert witnesses, the introduction of inadmissible evidence
`from a police report prepared by the Arizona Department of
`Public Safety (“ADPS” or “DPS”). We review a district
`court’s admission of evidence,
`including purported
`impeachment evidence, for abuse of discretion. See, e.g.,
`United States v. Osazuwa, 564 F.3d 1169, 1173 (9th Cir.
`2009). We conclude that the district court abused its
`discretion and that the error was not harmless. Therefore,
`we remand for a new trial.
`
`A
`
`Prior to trial, Plaintiffs filed a motion in limine
`concerning the accident reports that had been prepared by
`the ADPS and by the Kayenta Police Department. In their
`
`
`
`
`
`10
`
`JENSEN V. EXC INC.
`
`motion, Plaintiffs conceded that the portions of the police
`reports that contained “personal knowledge, photos, and
`measurements taken by the investigating officers” were
`admissible under Federal Rule of Evidence 803(8)(A)’s
`hearsay exception for public records. But to the extent that
`the
`reports
`contained
`“discussions, opinions,
`and
`conclusions about what allegedly happened based on
`interviews and other inadmissible sources,” Plaintiffs
`contended that the reports were inadmissible hearsay under
`Rule 802 and also that they were unduly prejudicial under
`Rule 403. Therefore, Plaintiffs requested that the district
`court exclude “any evidence, testimony, reference, or
`argument related to investigation of the accident, including
`any conclusions or opinions, that are not based solely on
`personal knowledge and measurements.” In their response
`to this motion, Defendants stated that they did “not object to
`. . . preclusion of hearsay contained within police reports,
`coroner’s reports, and medical records that are not subject to
`a hearsay exception.” The district court granted Plaintiffs’
`motion in limine. In doing so, the court agreed that
`Defendants could still “introduce statements in the police
`reports that are made by the officer and based on personal
`knowledge and observation,” but the court cautioned that,
`before seeking to introduce any such statements, Defendants
`should first request a “sidebar” to “raise the issue with the
`Court.”
`
`On the second day of trial, Plaintiffs called Robert
`Turner, whom the district court found to be qualified to
`testify as an expert “in commercial vehicle code enforcement
`and training.” During his brief direct examination, Turner
`testified that, by moving into the left-most westbound lane
`of Highway 160 when he exited the Hampton Inn parking
`lot, Conlon had violated Arizona Revised Statutes § 28-721,
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`11
`
`which he said generally required the bus to stay in the right-
`most lane. See ARIZ. REV. STAT. § 28-721 (2004 ed.).1 On
`cross-examination, Turner further opined that Conlon
`“should have waited until the Tahoe had passed” before
`turning into the highway and that, in his view, the “main
`cause” of the accident “was the fact that the bus” moved “out
`of its lane” and “was to the left of the lane.” Defense counsel
`elicited from Turner that he had reviewed the ADPS report
`about the accident, and counsel then asked if “that was one
`of the materials or documents [Turner] relied upon in
`preparing [his] opinions as an expert witness.” Turner
`responded, “It all contributed. I read it all and evaluated it.”
`Turner also confirmed that it would be “customary” and
`“reasonable” for an expert in his field to review such reports.
`
`Defense counsel then asked for a sidebar, which the court
`allowed. Counsel stated that he “want[ed] to be careful
`because of a motion in limine,” and he explained that he was
`“intending to ask the witness about information he reviewed
`in the Arizona Department of Public Safety report that
`includes witness statements, statements from the driver, and
`actual information provided by the DPS officer in that report
`that this witness just testified he relied upon in preparing his
`opinions.” Defense counsel argued that he should be
`allowed to ask about those items to show “bias of this
`witness, because what he’s doing is he’s disregarding every
`single witness and every single finding other than” the
`findings of another of Plaintiffs’ experts
`(Gabriel
`Alexander). Defense counsel specifically stated that he
`wanted to ask Turner about the ADPS report’s conclusion
`“that there was no improper driving by the bus.” Plaintiffs’
`counsel objected, stating that only the officers’ own
`“measurements” and observations should be admitted and
`
`1 The text of that statute is quoted and discussed below. See infra note 9.
`
`
`
`
`
`12
`
`JENSEN V. EXC INC.
`
`not the “ultimate conclusions by the officers.” Plaintiffs’
`counsel also objected that the “opinion by the officer is not
`expert testimony opinion.” Defense counsel responded by
`arguing that it is proper to ask an expert witness about what
`he “read and relied upon in preparing his opinions.” The
`court ruled that, because it had “agreed that [Turner] should
`be considered as an expert,” it would allow “that limited
`question.”
`
`Defense counsel
`questioning:
`
`then engaged
`
`in
`
`the following
`
`Q. When you read the Arizona Department of
`Public Safety report, you noted in the report
`that vehicle number one—excuse me, sir—or
`traffic unit number one is the white car driven
`by Butch Johnson. Do you recall that?
`
`A. I remember, yes.
`
`Q. And traffic unit two or vehicle number two
`is the bus, right?
`
`A. Yes.
`
`Q. And as you recall that the Department of
`Public Safety police report indicated that
`with respect to vehicle number two, the bus,
`there was no improper action, right?
`
`A. I vaguely remember that.
`
`Q. Okay.
`
`A. It’s been awhile since I reviewed that
`report.
`
`Q. And in the DPS report, the DPS officer
`who investigated the accident who was
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`13
`
`actually out at the scene of the accident,
`investigated
`the
`accident,
`took
`the
`measurements, talked to all the witnesses,
`also determined that the car driven by Mr.
`Johnson was traveling at a speed too fast for
`conditions, correct?
`
`A. That may have been in the report, yes.
`
`Q. And the Department of Public Safety
`police report shows that vehicle number one,
`the car driven by Mr. Johnson, engaged in
`unsafe passing?
`
`A. In unsafe passing?
`
`Q. Yes, sir.
`
`A. Like I say, it’s been awhile since I read the
`report, so—
`
`Q. Would you disagree with me if I tell you
`it says that?
`
`A. I’d have to look at it.
`
`Q. Well, you do agree that the report says
`there was no improper action by the bus,
`right?
`
`A. I remember some of that, yes.
`
`Q. And you do agree with me that the DPS
`report states that the car driven by Mr.
`Johnson was traveling at a speed too fast for
`conditions, right?
`
`A. Well, if the report says that and it conflicts
`with the—if it conflicts—
`
`
`
`
`
`14
`
`JENSEN V. EXC INC.
`
`Q. Well, ley me stop you, sir, because my
`question was only doesn’t the report say that?
`
`A. Does it say that? Yes.
`
`Q. Okay. So the Arizona Department of
`Public Safety—And that’s the Highway
`Patrol, right, the state police?
`
`A. Right.
`
`Q. They went out to the scene of the accident,
`investigated
`the
`accident,
`made
`measurements, took photos, correct?
`
`A. Yes.
`
`Q. Talked to witnesses at the scene who saw
`the accident, correct?
`
`A. Yes.
`
`Q. And they were out there the same day as
`the accident, right?
`
`A. Yes.
`
`Q. And the Arizona Department of Public
`Safety report says, with respect to the bus,
`there was no improper action, right?
`
`A. Yes.
`
`Q. And says the white car driven by Mr.
`Johnson was driving too fast?
`
`A. Could I speak to that?
`
`Q. Well, is the answer yes?
`
`A. Yes.
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`15
`
`Plaintiffs also called Gabriel Alexander, whom the
`district court found was qualified to testify as an expert on
`“accident
`reconstruction.”
` On direct examination,
`Alexander opined that, based on the position of the bus’s tire
`skid marks, he believed that the bus was over the line of the
`left-most westbound lane at the time of the accident.
`Alexander’s view was that, because Conlon was aware that
`Wisner was trying to pass him on the right before the two
`westbound lanes merged down to one, Conlon moved
`leftward to allow Wisner to pass and ended up going over
`the line into the eastbound lane. Although the point was
`sharply disputed at trial, Alexander testified that he believed
`that the arrangement of temporary tabs marking the lanes did
`not provide for a center, universal turn lane—meaning in his
`view that, when Conlon assertedly crossed over the line, the
`bus was in the eastbound lanes rather than a center turn lane.
`Alexander estimated that, “[p]rior to impact, [Conlon] was
`about five feet” over the line. Alexander’s opinion was that,
`in reaction to seeing the bus come over the line, Johnson then
`veered to his left; that Conlon simultaneously veered back to
`his right; and that the two vehicles then collided. Alexander
`also opined that Conlon must have been over the center line
`because, if he had instead begun moving right from the
`westbound lanes, he would have hit Wisner’s vehicle, which
`would have been too close to the bus to react in time. The
`fact that Wisner had time to react and to stay parallel to the
`bus as it drove off the road on the right suggested to
`Alexander that the bus had been further to the left from
`Wisner when it first began moving over to the right.
`
`On cross-examination, Alexander acknowledged that his
`expert report had not claimed that there was no center
`universal turn lane and that, during his deposition, he had
`agreed that there was such a lane. Alexander further
`
`
`
`
`
`16
`
`JENSEN V. EXC INC.
`
`acknowledged that his own diagram showed that there was a
`center turn lane further east, in front of the Hampton Inn and
`the Burger King. Alexander also admitted that, in his
`deposition, he had agreed that, at the time of impact, no part
`of Johnson’s vehicle was in the eastbound lanes but was
`instead “completely in the universal turn lane or even
`partially within the westbound lane.” On redirect, Alexander
`noted that he had also stated during his deposition that only
`one side of what would have been the universal turn lane had
`double yellow
`tabs, meaning
`that,
`from Johnson’s
`perspective, the lane would appear to be an eastbound lane.
`
`During cross-examination, Alexander was also asked
`about his assumption that there had been no contact between
`the bus and Wisner’s Tahoe. Although the parties had
`formally stipulated that “[t]here was no contact between the
`bus and Mr. Wisner’s SUV,” Wisner actually testified at his
`deposition that the bus hit his “left-hand mirror,” but no
`other part of his vehicle. The relevant deposition excerpts
`were presented to the jury, and defense counsel asked
`Alexander whether Wisner’s testimony was consistent with
`his theory. Alexander responded that he did not “see how it
`could have happened” that way, and he agreed that, if Wisner
`said that, he was “just wrong.”
`
`At one point in the cross-examination, Defense counsel
`confirmed that Alexander had reviewed and relied upon the
`ADPS report, and counsel then engaged in the following
`colloquy with Alexander:
`
`Q. And the Arizona Department of Public
`Safety did investigate this accident, right?
`
`A. Yes.
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`17
`
`Q. And a state trooper went out to the scene
`of the accident on the day of the accident and
`took photographs and measurements and
`talked to witnesses and prepared the report
`that you reviewed, right?
`
`A. Well, I’m going to assume that.
`
`the
`then based upon
`Q. Okay. And
`investigation conducted by the state trooper
`at the scene of the accident on the day of the
`accident, a report was prepared, correct?
`
`A. That’s correct.
`
`Q. And the report and—and you reviewed the
`report—says that traffic unit one, Johnson,
`was traveling eastbound on U.S. 160 when it
`crossed the center line and collided into
`traffic unit two, correct?
`
`A. Yes.
`
`Q. And it also says, with respect to vehicle
`number two, the bus, there was no improper
`action, correct?
`
`A. That’s correct.
`
`Q. And the Arizona Department of Public
`Safety report, the investigating officer also
`checked the box that indicates that vehicle
`number one, the Johnson car, was traveling at
`a speed too fast for conditions, correct?
`
`A. That’s correct.
`
`Defense counsel subsequently mentioned the ADPS
`report during his closing argument. After first noting that all
`
`
`
`
`
`18
`
`JENSEN V. EXC INC.
`
`of the eyewitnesses to the accident testified that Johnson
`drove into the bus, defense counsel stated:
`
`The Department of Public Safety
`highway patrol officer who was at the scene
`of the accident who investigated the accident
`on the same day of the accident designated
`the Johnson vehicle [as] vehicle number one.
`What does that mean?
`
`Well, Mr. Alexander told you that DPS
`officers will determine who they think is at
`fault, and they will designate that vehicle [as]
`vehicle number one. So the DPS officer who
`was at the scene of the accident that day,
`investigated the accident, talked to witnesses,
`took photographs, took measurements, made
`the decision that Mr. Johnson’s vehicle was
`the at-fault vehicle, vehicle number one.
`
`And the DPS officer went further. The
`DPS officer who investigated the accident,
`who was at the scene of the accident, who
`took photographs, who took statements, who
`took measurements stated that the Johnson
`vehicle was traveling eastbound on U.S. 160
`when it crossed the center line and collided
`into traffic unit number two. Traffic unit
`number two is the bus.
`
`And the DPS report prepared by the
`officer who was at
`the scene, who
`investigated
`the
`accident, who
`took
`measurements, who took photographs, who
`talked to witnesses and prepared a report
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`19
`
`said, with respect to vehicle number two, the
`bus, there was no improper action.
`
`And he also noted that the Johnson
`vehicle was traveling at a speed too fast for
`conditions, in other words, that he was
`speeding.
`
`Defense counsel then argued that Alexander’s opinion
`concerning the accident was not credible because Alexander
`had changed his view about whether there was a universal
`turn lane and because Alexander’s opinion was inconsistent
`with all of the eyewitness testimony, with Wisner’s
`testimony about his left mirror being hit by the bus, and with
`the ADPS report.
`
`B
`
`On appeal, Plaintiffs renew their objections, made in
`their pretrial motion in limine and during the sidebar at trial,
`that (1) no portion of the ADPS police report should have
`been admitted other than the officers’ own “measurements”
`and observations; and (2) in particular, the “opinion by the
`officer” concerning the accident “is not expert testimony”
`and the “ultimate conclusions by the officers” should have
`been excluded. We conclude that, on this record, the district
`court abused its discretion in allowing Defendants’ counsel
`to elicit the opinions expressed in the ADPS report as to the
`cause of the accident.
`
`As a general matter, hearsay is an out-of-court statement
`offered “to prove the truth of the matter asserted in the
`statement,” FED. R. EVID. 801(c)(2), and it is “not
`admissible” unless otherwise provided by federal statute or
`rules, FED. R. EVID. 802. Among the exceptions provided in
`the Federal Rules of Evidence is the exception for public
`
`
`
`
`
`20
`
`JENSEN V. EXC INC.
`
`records, which states that the rule against hearsay does not
`exclude a “record or statement of a public office” that “sets
`out . . . a matter observed while under a legal duty to report,
`but not including, in a criminal case, a matter observed by
`law-enforcement personnel.” FED. R. EVID. 803(8)(A)(ii).2
`This public-records hearsay exception applies only if “the
`opponent [of admission] does not show that the source of
`information or other circumstances indicate a lack of
`trustworthiness.” FED. R. EVID. 803(8)(B). We have held
`that, under the public-records exception, “entries in a police
`report which result from the officer’s own observations and
`knowledge may be admitted” in a civil case. United States
`v. Morales, 720 F.3d 1194, 1202 (9th Cir. 2013) (emphasis
`added) (citation omitted). By contrast, any statements from
`third parties that are recounted in a police report involve an
`additional layer of hearsay that must be separately justified
`by another exception to the hearsay rule. See FED. R. EVID.
`805; see also Morales, 720 F.3d at 1202 (stating that “the
`exception allowing for a ‘matter observed while under a
`legal duty to report’ in Rule 803(8) ‘generally does not pave
`the way for official records to prove conclusions resting on
`statements by outsiders or to prove what such outsider
`statements
`themselves assert’ unless
`‘the outsider’s
`statement itself fits an exception’” (citation omitted)).
`
`Contrary to what Plaintiffs suggest, this latter restriction
`against the admission, for their truth, of the contents of third-
`party statements recounted in police reports was not violated
`
`
`2 The evidence rules also contain a separate hearsay exception for
`business records, see FED. R. EVID. 803(6), but we have held that “this
`exception does not apply to records of government agencies, which are
`public records for purposes of Rule 803.” United States v. Morales, 720
`F.3d 1194, 1201 (9th Cir. 2013); see also United States v. Orozco, 590
`F.2d 789, 793–94 (9th Cir. 1979).
`
`
`
`
`
`JENSEN V. EXC INC.
`
`
`
`21
`
`in this case. As our earlier verbatim excerpts of the relevant
`questioning and arguments make clear, defense counsel did
`not disclose or elicit anything about the actual substance of
`any witness statements recounted in the police report.
`Instead, he elicited that the officer at the scene took various
`witness statements—whose content was not disclosed—and
`that the officer then reached a conclusion, based on all of the
`information gathered (including those statements), as to how
`the accident occurred. See supra at 12–19.
`
`The central question, instead, is whether the district court
`properly admitted, in cross-examination of Plaintiffs’
`experts, the police report’s conclusions as to how the
`accident transpired. That question implicates, in the first
`instance, a different provision of
`the public-records
`exception to the hearsay rule, viz., a portion of Rule 803(8)
`that allows the admission—absent a showing of lack of
`trustworthiness—of a “record or statement of a public
`office” that sets out, “in a civil case or against the
`government in a criminal case, factual findings from a
`legally authorized
`investigation.”
` FED. R. EVID.
`803(8)(A)(iii); see also FED. R. EVID. 803(8)(B). The
`Supreme Court has held that the “factual findings” covered
`by this hearsay exception include a “conclusion” or
`“opinion” in such a report that “is based on a factual
`investigation” as described in the rule and that “satisfies the
`Rule’s trustworthiness requirement.” Beech Aircraft Corp.
`v. Rainey, 488 U.S. 153, 170 (1988) (construing the same
`hearsay exception, which was then in Rule 803(8)(C)). That
`construction of the rule would extend to a police report’s
`conclusions as to the manner in which a traffic accident
`occurred. See, e.g., Simmons v. Chicago & Nw. Transp. Co.,
`993 F.2d 1326, 1327–28 (8th Cir. 1993).
`
`
`
`
`
`22
`
`JENSEN V. EXC INC.
`
`In moving in limine to exclude the police report,
`Plaintiffs argued
`that
`the report’s conclusions were
`untrustworthy and were therefore inadmissible under Rule
`803(8). In their respo
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