Chiropractic Antitrust Suit: New Zealand Report

Memorandum Opinion and Order:
III. New Zealand Report

During trial, I reserved ruling on an important evidentiary ruling, the admissibility of a report summarizing the findings of a task force appointed by the New Zealand government to study chiropractic in that notion, “Chiropractic in New Zealand: Report of the Commission of Inquiry” (“the New Zealand Report”). The New Zealand Report was heavily relied upon by the plaintiffs to show that chiropractic was a valid health care profession. The defendants opposed introduction of the report, and the parties have now briefed the issue.

The Report was published in 1979 after nearly two years of investigation including 78 days of public hearings, 15 days of closed sessions, and visits to medical and chiropractic establishments both in New Zealand and other English-speaking countries. The plaintiffs assert that these acts entitle the Report to admission as evidence both for the truth of the matters asserted and for the purpose of showing the information available on chiropractic as of 1979. With one narrow exception, I disagree.

Rule 803(8) of the Federal Rules of Evidence, which is an exception to the hearsay rule embodied in Rule 802, makes admissible

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth … in civil actions … factual findings resulting from an investigation made pursuant to authority granted by low, unless the sources of information or other circumstances indicate lack of trustworthiness.

The burden of proving untrustworthiness lies with those opposing admission. As explained in the advisory committee notes, “the rule … assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.” Among these factors are the untimeliness of the inquiry, the lack of special skill or experience on the part of the investigating officials, procedural defects in the conduct of the investigation (such as failure to hold hearings), and/or the bias or motivation problems of the investigators. Other factors, both positive and negative, may, of course, also be considered.

With these considerations in mind, the defendants assert that the New Zealand Report is fundamentally untrustworthy primarily because its conclusions are based upon otherwise inadmissible, unreliable evidence collected and evaluated by persons with no particular skill or background to make assessments respecting the safety or efficacy of health care practices. Defendants particular object to the New Zealand Commission’s acceptance, at “face value,” of the testimonial accounts of patients’ experiences with chiropractors. The Commission found that such “evidence is not decisive but it is compelling.”

Defendants’ view of the scientifically questionable basis of the New Zealand Report’s conclusions is supported by a review of the Report prepared by the United States Congress’ Office of Technology Assessment (“the OTA review”). That review questions the applicability of the New Zealand findings to the United States and finds “serious problems” in the Report’s treatment of safety and efficacy issues. Although the plaintiffs have suggested that the OTA review may be biased because it was prepared by a doctor of medicine, the court disregards these conclusory allegations. The OTA review itself is balanced and well-reasoned in its assessment of the New Zealand Report. Its primary criticism of the Report is not that its conclusions are wrong, but that they are not based upon well-designed, controlled clinical trials. Regarding the efficacy of chiropractic, the New Zealand Commission considered only five randomized trials. Of these, only two involved chiropractic services — each of which contained significant design flows. The OTA review concluded: “There is a strong hint that spinal manipulation has efficacy in the immediate relief of back pain and other kinds of pain that goes beyond placebo effect. However, this can only be considered suggestive without further research.” With respect to the question of chiropractic safety, the OTA review — after disparaging as “not evidence” anecdotal accounts in the medical literature purporting to show chiropractic is unsafe — stated it was unable to find any well designed study. It concluded, consistent with this finding, that the New Zealand Report’s review of the safety issue was “unsatisfactory.”

In light of this thorough and well-considered appraisal of the New Zealand Report, with which I agree, I do not find the Report’s conclusions trustworthy. The request for admission for the purposes of showing the truth of the matter asserted is therefore denied.

The plaintiffs urge, alternatively, that the New Zealand Report should be admitted to show first notice to the defendants that chiropractic was not quackery, and second that any belief that chiropractic was quackery could not be objectively reasonable. To the extent that the Report is offered solely to show information available on chiropractic in the latter half of 1979, the request to admit is unobjectionable. It is not, however, especially probative. The Report was not written until three years after the commencement of this lawsuit; its only possible relevance is with respect to plaintiffs’ continuing violation point. The Report therefore may come in to show that the defendants may hove suspected that their public position on chiropractic was untenable. It may not come in to show that the public stand was objectively unreasonable. To hold otherwise would negate my ruling on admissibility for the truth of the matter asserted. As the defendants correctly note, there is no basis upon which to infer that the defendants’ belief was not reasonable absent reliance on the truth of the Report itself. I hold, accordingly, that the New Zealand Report may be admitted, but only for the limited purpose stated.

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