Larry W. ROBBINS, et al., Plaintiffs, Appellants, v. Robert W. WHELAN, Defendant, Appellee.
No. 79-1647.
United States Court of Appeals, First Circuit.
July 7, 1981.
Vacated and remanded.
Levin H. Campbell, Circuit Judge, filed dissenting opinion.
Robert W. MacDonald, Bourne, Mass., on brief for appellants.
Thomas D. Burns, James F. Kavanaugh, Jr., and Burns & Levinson, Boston, Mass., on brief for appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
After rehearing and the submission of briefs we withdraw our first opinion and issue the following decision.
This appeal stems from an automobile accident involving a 1971 Mercedes car driven by the defendant-appellee, Robert Whelan, and a second car in which the two plaintiffs-appellants were passengers. The driver of the second car, Curtis Frye, is not a party to this suit. The accident took place as the Mercedes was traveling east on a four lane undivided highway and the Frye car was exiting a rest area, abutting the southern edge of that same highway. The plaintiffs assert that the Mercedes was first
The defendant‘s version claims that he was traveling at about 40 to 48 miles per hour when the Frye car was first noticed some 750-900 feet away advancing in the rest area in the opposite direction. The defendant says he maintained his speed up to a point where the Frye car entered the highway in a “sudden swerve” which left little time for any reaction. After a bifurcated trial the jury decided the issue of liability in favor of the defendant.
Appellants’ first claim of error is that the trial court should have admitted into evidence a copy of a Department of Transportation National Highway Safety Bureau report entitled “Performance Data for New 1971 Passenger Cars and Motorcycles.” This report contains information on the maximum stopping distances for all automobiles manufactured in a certain year. Specifically, the plaintiffs sought to introduce into evidence that part of these tables stating that the particular type of automobile driven by the defendant had, when traveling at a speed of 60 miles per hour, a maximum stopping distance of 160 feet with a light load and 169 feet with a heavy load. The defendant objected to this document on the grounds that it was not relevant. The district court agreed.
We think the evidence was relevant.1 A Massachusetts State Police Trooper previously had testified that the defendant‘s car, which he thought had been traveling faster than 50 miles per hour, had left 160 feet of skid marks. The braking performance report stated that new cars of the defendant‘s model required at most 169 feet to stop under the test conditions of 60 miles per hour. If factors other than speed were common to both the test and the accident, the report would have supported an inference that the defendant—who presumably was trying to stop as fast as possible—was in fact driving faster than his claimed 40 to 48 miles per hour.
The factors other than speed prevailing both during the test and at the accident were sufficiently similar to allow the jury to hear this evidence. In general, because “perfect identity between experimental or actual conditions is neither attainable nor required . . . [,] [d]issimilarities affect the weight of the evidence, not admissibility.” Ramseyer v. General Motors Corporation, 417 F.2d 859, 864 (8th Cir. 1969) (citations omitted).2 Each case must be judged under its own particular facts taking into account the specific purposes for which this type of evidence is sub
On appeal the defendant alternatively argues that, even if the report were relevant, the trial court properly excluded it because it was hearsay. The Federal Rules of Evidence, however, allow as an exception to the hearsay rule “data compilations, in any form, of public . . . agencies, setting forth . . . (C) . . . factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”
The investigation‘s “sources of information” and “other circumstances” also demonstrate the resulting report‘s trustworthiness, thus satisfying the rule‘s final clause. First we observe that the investigation was completely unrelated to this or other litigation. Its motivation was also otherwise unbiased. The report describes its object by
Next we note that the government agency has by rule established detailed standards by which the private parties are to collect the required data. Published rules direct that braking tests be conducted with a specified poundage on the brake pedal, with the car‘s fuel tank between 90-100 percent full, and with all vehicle openings in closed position. The ambient temperature must be between 32-100° F. and the wind velocity zero. The test auto may not skid and must remain within a 12 foot lane. Its tire pressure and other relevant component adjustments must comply with the manufacturer‘s published recommendations. The test road must have a grade of zero percent and the road surface “a skid number of 81, as measured in accordance with . . . (ASTM) Method E-274-70 (as revised July, 1974) at 40 mph, omitting the water delivery specified in paragraphs 7.1 and 7.2 of that method.”
The government agency requires an extremely strict statistical standard in addition to these detailed testing standards; “[e]ach passenger car in the group to which the information applies shall be capable of performing at least as well as the information indicates. . . .” Id. at
Finally, the supplying manufacturers have a significant incentive to comply with these detailed data reporting requirements. Their failure to do so violates the law,
Against these factors, defendant‘s unsubstantiated suggestion that manufacturers may overstate the performance of their products to induce sales is relevant but insufficient to discharge the burden of showing untrustworthiness that rests on a party opposing the introduction of purported hearsay. See, e. g., Baker v. Elcona Homes Corp., 588 F.2d 551, 558 (6th Cir. 1978).
The indicia of reliability marking this investigation‘s methodology also allows us to distinguish less reliable reports that have been excluded in other cases. For example, the Consumer Product Safety Commission accident reports we excluded in McKinnon v. Skil Corporation, 638 F.2d 270, 278-79 (1st Cir. 1981) and the National Transportation Safety Board accident reports excluded in John McShain, Inc. v. Cessna Aircraft Company, 563 F.2d 632, 635-36 (3d Cir. 1977) involve accident reports in which the attendant danger of misrepresentation, found in subjective commentary recorded by investigators from interviewees who witness particular acts in disputes, was never overcome. Here by contrast the performance data report contains the results of objective technical analysis performed under controlled conditions.
We agree that the reporting agency must have firsthand knowledge of the investigation by which it accumulates the published factual findings that Rule 803(8)(C) contemplates, since it is the quality of the investigation that determines the caliber of the results. The agency in this case did have such firsthand knowledge; it initiated the inquiry and specified in detail the information sought, the methodology to be used in developing the information, and the statistical standards to which the manufacturers were to adhere. It then determined that the information was sufficiently reliable to publish for the buying public to rely upon when comparing car safety performances. Our judgment is that these factors, combined with the statutory sanctions compelling the manufacturers’ accurate responses, ensured sufficient trustworthiness to allow the report to be admitted without further verification efforts by the agency. Cf. United States v. American Telephone & Telegraph Co., 498 F. Supp. 353, 364 (D.D.C. 1980) (author of report not necessarily required to have firsthand knowledge of facts on which findings are based); 4 D. Louisell & C. Mueller, Federal Evidence § 455, at 734-35 (1980) (“A great advantage of clause C [of Rule 803(8)] is that it embraces records based upon statements or testimony by outsiders to government, so there is no need to show that the source was an official with personal knowledge.“) (footnotes omitted); 4 J. Weinstein & M. Berger, Weinstein‘s Evidence ¶ 803(8)[03], at 802-803-04 (1979) (government report may be admissible under Rule 803(8)(C) despite lack of official firsthand knowledge of substance if the report is found reliable).
The court therefore erred in excluding the report.
We further conclude that the trial court‘s exclusion of the performance report was more than harmless error.
On this close question of negligence it is obvious that plaintiffs’ case was made considerably weaker by the error. Because we cannot say with reasonable assurance that the jury, had it been given the opportunity to consider the data, would still have found in favor of the defendant we find no alternative but to remand for a new trial.
In light of our disposition of this evidentiary issue it is unnecessary to consider the other contentions raised on appeal. Even were they to resurface upon retrial they would have to be handled in the context of the particular circumstances before the court at that time. For purpose of guidance we do, however, mention that the question of whether an expert witness is necessary or who would qualify as one is, in a diversity case, controlled by the Federal Rules of Evidence. Garbincius v. Boston Edison Company, 621 F.2d at 1174.8
The case is remanded for a new trial.
I agree with the court that under Rule 803(8) the performance data would not be excludable on hearsay grounds. However, I believe the court fails to give adequate attention to the fact that the trial judge excluded the data not on hearsay grounds but for lack of relevance, and that appellant never correctly stated the purpose for which the evidence was being offered. Before a party may claim error on appeal in the exclusion of evidence, he must have told the court not only what he intended to prove but for what purpose. McCormack, Evidence § 51, at 110-11 (2d ed. 1972), and cases at n.12, and 1978 Supp. at 16, n.12; see also Weinstein‘s Evidence ¶ 103[03], at 103-27, and cases at n.3; I Wigmore, Evidence § 17, at 319-20 and 1980 Supp., cases at p. 97-98;
This court skirts the issue in footnote 1. It says that “read in retrospect,” the colloquy between court and counsel “reveals that appellant was referring, none too succinctly, to use of the report as an indirect means of calculating the Mercedes’ speed prior to the braking.” For this reason, “we cannot say . . . that the point as to relevance was not sufficiently made.” The rule, however, is not served by looking at the record retrospectively. The reason a party must communicate the purpose for offering evidence is to put the trial judge on notice while there is still time to save the situation. A trial judge is only human; he may not have perfect recall of earlier testimony; it is counsel‘s duty, not the court‘s, to articulate the purpose for which evidence is being offered. Nowhere in this record did counsel say something like, “Judge, I am offering this because we earlier had evidence of 160 foot skid marks and this exhibit will show that if it took the car 160 feet to stop, it must have been going faster than 60 m. p. h.” Had this been stated, a different ruling might have been rendered.
To be sure, this court may not mean that counsel here actually stated the purpose for the evidence, but only that the purpose was so obvious that counsel was excused from stating it. See McCormack, Evidence § 51, at 111. Defendant‘s speed was already in issue, and the judge arguably should have realized how the performance data report, taken with the other evidence, would relate to the question of speed. But I do not think the indirect relationship between speed and skid marks was so obvious that counsel was excused from stating it. It was clear from the judge‘s comments that she was laboring under the misimpression that the evidence was being offered merely to show when the brakes had been applied. If the point was that obvious, one would have expected the judge to perceive it; the whole object of the rule is to require counsel to articulate the purpose when the judge is likely otherwise to misunderstand. At the end of the colloquy, counsel stated his intention to prove that the Mercedes going 60 m. p. h. could stop in 160 feet; but that was to state matters backwards. He never once stated the data was offered for the purpose of showing that the 160 foot skid marks meant the Mercedes was going faster than 60.
HOSPITAL MORTGAGE GROUP, INC., Plaintiff, Appellee, v. PARQUE INDUSTRIAL RIO CANAS, INC., Defendant, Appellant.
No. 80-1709.
United States Court of Appeals, First Circuit.
Argued May 6, 1981.
Decided July 9, 1981.