MICHAEL RICE & another [Note 1] vs. JAMES HANRAHAN & SONS & another. [Note 2]

WARNER, J. In 1978, the plaintiffs, Nancy Rice and her husband, Michael, entered into a contract with the defendant James Hanrahan & Sons (Hanrahan) for the installation of

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ureaformaldehyde foam insulation (UFFI) in their home. The UFFI, allegedly manufactured by defendant Celsius Insulation Resources Inc., [Note 3] was installed in the Rice's home in February, 1979, by Hanrahan. Once installed, it allegedly emitted vapors which caused Nancy Rice to develop "moderate to mild neuropsychiatric memory losses" and which diminished the economic value of their home.

The case was tried on a breach of warranty of merchantability theory to a Superior Court jury which found, in answer to special questions, that the UFFI, at the time of its sale to the plaintiffs, was fit for the ordinary purposes for which it was intended. Judgment entered for the defendants, and the plaintiffs' motion for a new trial was denied. On appeal, the plaintiffs claim error in (1) the exclusion from evidence of Massachusetts regulations, promulgated after the sale to the plaintiffs, banning UFFI, (2) the judge's answer to a question from the jury during deliberations, (3) the defendants' counsel's closing arguments, and (4) the denial of the plaintiffs' new trial motion.

1. The plaintiffs' principal argument is that the judge erred in excluding from evidence certain Department of Public Health regulations. The regulations, which took effect in November of 1980, banned UFFI as a hazardous substance and required its repurchase and removal by manufacturers and installers. 105 Code Mass. Regs. Sections 650.221 - 650.222 (1981). [Note 4] The judge excluded the regulations on the dual bases that their effective date was subsequent to the sale of UFFI to the plaintiffs and that the designation of UFFI as a banned and hazardous substance was in the form of a legislative, as opposed to an adjudicatory, determination. We hold that the regulations were hearsay and were properly excluded.

Safety standards, whether enacted by governmental entities pursuant to their rule making power, by industry associations,

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or by testing organizations, have been found admissible, in the sound discretion of the trial judge, in products liability cases "as evidence of a failure to exercise due care . . . as proof that the defendant knew or should have known of the defect . . . as evidence of the availability or feasibility of a remedy to correct a defect . . . as reflective of industry custom and practice . . . and as a basis for the examination or cross-examination of expert witnesses" (citations omitted). Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 671 (1980). The issue in this case is whether government safety regulations effective subsequent to a product's sale [Note 5] are admissible as evidence that the product was in a defective condition unreasonably dangerous to the user or consumer at the time of sale, that is, unfit for the ordinary purposes for which the product was to be used. [Note 6]

In seeking to demonstrate UFFI's unfitness, [Note 7] the plaintiffs offered the regulations in issue for the truth of the assertion

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contained therein that UFFI was indeed hazardous enough to be banned. As extrajudicial statements offered for the truth of the matter asserted, the regulations were therefore inadmissible as hearsay, unless subject to some exception to the hearsay rule. [Note 8]

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The plaintiffs argue the admissibility of the regulations pursuant to G. L. c. 233, Section 75. [Note 9] Under Section 75, printed copies of rules and regulations promulgated by a department of the Commonwealth are admissible in evidence without attestation unless their genuineness is questioned. This provision facilitates the authentication of a document -- the method of proving that a document offered is in fact what its proponent represents it to be. See Liacos, Massachusetts Evidence 345, 375, 381 (5th ed. 1981). However, unlike statutes and rules exempting extrajudicial statements from the hearsay rule, [Note 10] Section 75 does not provide that legislative pronouncements and regulations are admissible to prove the truth of matters contained in them. Cf. Jacobs v. Hertz Corp., 358 Mass. 541, 543-544 (1970) (G. L. c. 233, Section 69, setting forth requirements for admissibility of court records and judicial proceedings of another State "does not make everything contained in such a record competent evidence" even though the record itself is properly authenticated). Section 75 is not in itself a sufficient basis for the admission in evidence of the regulations.

Although the plaintiffs have not argued on appeal, as they did at trial, the admissibility of the regulations under the public

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document exception to the hearsay rule, we examine the applicability of this exception because of the importance in general of the question of the admissibility of such regulations. Under the common law public document exception, "a record of primary fact, made by a public officer in the performance of official duty is or may be made by legislation competent prima facie evidence as to the existence of that fact." Commonwealth v. Slavski, 245 Mass. 405, 417 (1923). Julian v. Randazzo, 380 Mass. 391, 393 (1980). See Lodge v. Congress Taxi Assn., 340 Mass. 570, 573 (1960); Jacobs v. Hertz Corp., supra at 544. Ordinarily, "records of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records." Commonwealth v. Slavski, supra.

The regulations offered by the plaintiffs in this case were not records of primary facts. Contrast Commonwealth v. Slavski, supra at 415-416, and cases cited. The regulations were an "expression of public policy" of the Department of Public Health based on its investigations concerning UFFI and public hearings concerning the proposed ban. Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 712, 721, 726 & n.16 (1983). Cf. Grocery Mfrs. of America, Inc. v. Department of Pub. Health, 379 Mass. 70, 79-80 (1979). As such, they were not subject to the public documents exception. [Note 11] See Passanessi v. C.J. Maney Co., 340 Mass. 599, 603 (1960); Jacobs v. Hertz Corp., supra. See also Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87, 94 (2d Cir. 1980).

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Nor do we find that the regulations, for the purposes offered by the plaintiffs, were subject to judicial notice pursuant to G. L. c. 30A, Section 6, as appearing in St. 1976, c. 459, Section 5, which provides that "[t]he contents of the Massachusetts Register shall be judicially noticed." See Purity Supreme, Inc. v. Attorney General, 380 Mass. 762, 772 n.12 (1980); Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 926 (1980). Judicial notice of law, including agency regulations, dispenses with the need to offer evidence by permitting a court to recognize the principles of law governing the case before it. See McCormick, Evidence Section 335 (3d ed. 1984); Liacos, Massachusetts Evidence 18 (5th ed. 1981). The plaintiffs offered the regulations here, not as law governing the disposition of the breach of warranty action, but for the truth of the assertion that UFFI was indeed so hazardous as to require banning. [Note 12]

The Massachusetts cases cited by the plaintiffs in which a safety statute or regulation and violation thereof were admitted as evidence of negligence do not provide support for the admission of such regulations in a breach of warranty of merchantability action as evidence that a product was unfit. The violation of a safety regulation is admissible as evidence of negligence,

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although not conclusive of the issue, see Perry v. Medeiros, 369 Mass. 836, 841 (1976); LaClair v. Silberline Mfg. Co., 379 Mass. 21, 28 (1979); MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 139-140 (1985) (also holding that compliance with such a regulation is admissible to show lack of negligence); Eagan v. Marr Scaffolding Co., 14 Mass. App. Ct. 1036, 1037 (1982), since a regulation "enacted by a body representing the interests of the public, imposes prima facie upon everybody a duty of obedience. Disobedience is, therefore, a breach of duty, unless some excuse for it can be shown which creates a different duty, that . . . overrides the duty imposed by the statute or ordinance," Stevens v. Boston Elev. Ry., 184 Mass. 476, 479 (1904). See Newcomb v. Boston Protective Dept., 146 Mass. 596, 600 (1888); Gately v. Taylor, 211 Mass. 60, 64-65 (1912). Thus, in negligence actions evidence of a safety regulation is not hearsay, as it is not offered as proof of the truth of matters contained in or underlying the regulation but rather to establish the prescribed standard of care. However, the inquiry in a breach of warranty case does not focus on whether a defendant has taken all reasonable measures to make a product safe but on whether a product was defective and unreasonably dangerous. Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 355 (1983).

Nor are we persuaded by the cases from other jurisdictions relied on by the plaintiffs. In Johnson v. William C. Ellis & Sons Iron Works, 609 F.2d 820 (5th Cir. 1980), the court found statements in industry safety codes and, apparently, a government safety bulletin promulgated by the Department of Labor admissible in a products liability action under Fed.R. Evid. 803(18), the Federal hearsay exception for learned treatises. Massachusetts does not currently recognize that exception, see Liacos, Massachusetts Evidence at 352-353, except as authorized under G. L. c. 233, Section 79C, in medical malpractice cases. See Mazzaro v. Paull, 372 Mass. 645, 648 (1977). In Pyatt v. Engel Equip., Inc., 17 Ill. App. 3d 1070, 1071-1072 (1974), the court found health and safety rules of the industrial commission of the State of Illinois admissible in a strict liability action but failed to address the hearsay nature

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of that evidence. Ellis v. International Playtex, Inc., 745 F.2d 292, 299-304 (4th Cir. 1984), offers little guidance in the instant case. There, two government sponsored epidemiological studies on toxic shock syndrome consisting of "data compilations . . . setting forth factual findings" as well as "tentative conclusions," were found by the court to be admissible in a products liability action under Fed.R.Evid. 803(8) (C). Id. at 301. In contrast, the regulations in this case did not constitute scientific studies setting forth factual findings. In Stonehocker v. General Motors Corp., 587 F.2d 151, 154-157 (4th Cir. 1978), the court, in a products liability action based on negligence, upheld the admission in evidence of a subsequently enacted Federal safety standard and the defendant's compliance therewith as evidence of due care. See MacDonald v. Ortho Pharmaceutical Corp., supra at 140. As we have noted, the duty to exercise due care is foreign to liability predicated on breach of warranty. See Correia v. Firestone Tire & Rubber Co., supra at 355. [Note 13]

Other jurisdictions have either recognized or implictly assumed the relevancy and admissibility of government regulations in strict liability and breach of warranty actions. [Note 14] Some

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States have enacted statutes governing the admissibility and effect of government regulations in such cases. [Note 15] We conclude that there is no basis under the law of Massachusetts for the admission of the regulations in question, promulgated after the sale of the UFFI to the plaintiffs, for the purpose for which they were offered, namely, as evidence that the UFFI was unfit for the ordinary purposes for which it was intended. [Note 16]

2. The judge instructed the jury to determine whether the UFFI, at the time of its sale to the plaintiffs, was fit for the ordinary purposes for which it was intended to be used. [Note 17] The first of several special questions submitted for the jury's consideration dealt with whether there had been a breach of the

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warranty of merchantability at the time of sale. The jury interrupted their deliberations to ask the judge the following question:

"Question number one says, `at the time of sale.' The Rice case hinges on persistent odor beyond the time of the sale. If we are restricted to the time of the sale, there is no case, true or false?"

During the colloquy between the judge and counsel which followed, plaintiffs' counsel suggested that the judge simply answer the question "false." The judge, believing that some explanation was needed, gave the following answer:

"Now let me answer it this way. When we're talking, the words, "at the time of the sale," meaning: Was there something about that product, at the time that it was sold, that made it unfit, something inherent in the product, the fact, if it is a fact, that an odor may have existed then or developed at some time later might be evidence of its fitness or unfitness. But that's not really the controlling factor.

"The question is: At the time that it was sold, was there something inherently wrong with that product such as would render it unfit for installation in a home for insulation purposes. That, I think, is really the way the question should be considered."

At the conclusion of the answer, the judge asked if counsel had "any problem with that," and the plaintiffs' counsel registered no objection. The jury were then discharged for the day. Before the jury renewed deliberations on the next morning, the plaintiffs' counsel again asked the judge to answer the jury's question: "false." The judge reminded counsel that, despite the judge's invitation for comment, he had made no objection to the answer as given. The judge declined to instruct the jury further on the question, saying that to do so would confuse the jury. Giving the plaintiffs the benefit of the doubt

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as to the timeliness of counsel's objection, since the jury had not "retire[d] to consider its verdict" following the answer, Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974), we conclude that there was no error.

The plaintiffs objected to the judge's answer on the basis that it was confusing. The plaintiffs argue that the judge should have answered the question, "false," with an explanation that a product's unfitness may be established by its long-term effects. We think that the answer, read as a whole, see Wilson v. Boston Redevelopment Authy., 366 Mass. 588, 591 (1975), adequately and accurately informed the jury that (1) the critical time, on the evidence presented, of fitness was the time of the sale and (2) contemporaneous or subsequent odor [Note 18] could be considered evidence of unfitness.

3. The plaintiffs argue that defense counsels' closing arguments contained expressions of personal opinion which were improper and prejudicial. As the plaintiffs failed to object to those portions of the arguments, we decline to review the matter. See Commonwealth v. Johnson, 374 Mass. 453, 458 (1978); Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 666 n.3 (1980).

4. The plaintiffs present nothing in their arguments of error in the denial of their motion for a new trial which we have not addressed. There was no abuse of discretion in the denial.

Judgment affirmed.

Order denying motion for new trial affirmed.