Adkins v. Dirickson

• Citation: 523 F. Supp. 1281
• Decision Date: 13 October 1981
• Docket Number: 79-0241.,Civ. A. No. 78-3911
• Parties: Ray ADKINS, et al. v. Donald DIRICKSON, et al. Donald DIRICKSON, et al. v. Ray ADKINS, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

523 F. Supp. 1281

Ray ADKINS, et al. v. Donald DIRICKSON, et al.

Donald DIRICKSON, et al. v. Ray ADKINS, et al.

Civ. A. Nos. 78-3911, 79-0241.

United States District Court, E. D. Pennsylvania.

October 13, 1981.

Christopher C. Fallon, Jr., Cozen, Begier & O'Connor, Philadelphia, Pa., for Ray Adkins, et al.

Edward L. McCandless, Jr., Steinberg & Girsh, Philadelphia, Pa., for Donald Dirickson, et al.

MEMORANDUM

GILES, District Judge.

Before me is defendants' motion for a new trial. For the reasons which follow the motion will be denied.

I. BACKGROUND

Oncoming tractor trailers sideswiped in the dark of night. Neither driver recalled the impact. Nobody else witnessed the accident. The collision occurred on a portion of Interstate Route 78 ("I-78") which, because of construction, was a two-lane undivided highway. All traffic was routed onto the westbound section of the road, with westbound traffic restricted to what usually would be the outside driving lane, and eastbound traffic in the usual inside passing lane. Plaintiff¹ had been driving a box-type tractor-trailer westward in the outside lane. Defendant, who was driving east in a tanker tractor-trailer, loaded with a liquid, had been traveling in a four-lane section of I-78 and then went through a cross-over onto the two-lane section. The accident occurred approximately two-tenths of a mile after defendant made the cross-over. After trial, the jury found for plaintiffs. Defendants moved for a new trial.

II. NEW TRIAL MOTION

Defendants raise four grounds for a new trial: (A) admission of evidence derived from a tachograph as partial proof of the speed of defendants' truck; (B) preclusion of defense counsel's proposed method of attempting to recall or incorporate trial and deposition testimony by other witnesses; (C) refusal of a point for charge on Interstate Commerce Regulations, which were not introduced at trial; and (D) a verdict allegedly against the weight of the evidence.

To prevail on their motion, defendants must show not only that there was error, but also that any error was not harmless. See Fed.R.Civ.Pro. 61.

A. Tachograph Evidence

The tachograph in question in this suit is a speed measuring and recording device. In essence, it is a recording speedometer. It consists of an ordinary speedometer connected to a recording device which charts on a circular graph, speed, distance travelled, and engine use.² As part of plaintiffs' case-in-chief, a tachograph chart was introduced, and an expert interpreted the chart as recording the speed of defendants' truck at impact as 41-42 miles per hour. Notes of Testimony, 3.80 hereinafter cited as N.T.. That expert, however, could not vouch that the tachograph had recorded accurately. Id. 3.98, 3.108-.110. Defendant timely objected to this testimony and asked that it be stricken. Id. 3.73, 3.98. The objection was overruled. Defendants now raise this ruling as ground for a new trial.

Citing Villegas v. Bryson, 16 Ariz.App. 456, 494 P.2d 61 (1972), they argue that the proponent of tachograph evidence must lay a foundation by showing the accuracy of the particular tachograph.

At trial, defendants, characterizing the tachograph evidence as "scientific," argued that the proponent must show (1) general scientific acceptance, and (2) accuracy of the particular device. See J. Wigmore, supra note 2, at 450. See generally J. Richardson, supra note 2, § 9.2. In connection with this argument, it is important to note two points. First, the general scientific acceptance of the tachograph is not at issue in this case. If it were, I would take judicial notice of its acceptance. Second, if one accepts the rule proffered by defendants concerning the foundation required for "scientific" proof, then characterizing evidence as "scientific" puts the rabbit into the hat. Thus, the question whether evidence is "scientific" can be thought of as a different aspect of the question what foundation is required.³

Not only do plaintiffs challenge the proposition that the proponent of the use of the device must lay a foundation for its accuracy, but they also submit that there was indeed evidence of accuracy presented at the trial. These arguments, therefore, raise three questions for the court: (1) whether accuracy was a necessary foundation in this case; (2) if so, whether the foundation was laid; and (3) if a proper foundation did not exist, whether the error was harmless.

1. Accuracy As Part of Foundation

Is a showing of accuracy a prerequisite to introducing tachograph evidence, or does accuracy vel non merely go to the weight of the evidence? See, e. g., McCormick, supra note 2, § 210, at 515; J. Wigmore, supra note 2, § 220, at 450. The few jurisdictions which have reached this question directly have held that the foundation for introduction of tachograph testimony must include a showing of "the accuracy of the particular tachograph which made the chart." Villegas v. Bryson, 16 Ariz.App. 456, 458, 494 P.2d 61, 63 (1972); see Bell v. Kroger, 230 Ark. 384, 386-87, 323 S.W.2d 424, 426 (1959); Great Coastal Express, Inc. v. Schruefer, 34 Md.App. 706, 714-16, 369 A.2d 118, 124-25 (1977) (quoting trial judge⁴); Thompson v. Chicago & Eastern Illinois Railroad, 32 Ill.App.2d 397, 405, 178 N.E.2d 151, 155 (1961); Jones, supra note 2, § 15:16, at 46; McCormick, supra note 2, § 210, at 516; Conrad, supra note 2, at 297. Contra, Wigmore, supra note 2, § 665a, at 917; but see Hall v. Dexter Gas Co., 277 Ala. 360, 365, 170 So.2d 796, 800-01 (1964) (admissible on showing that it was ordinary business record); but cf. NLRB v. Pacific Intermountain Express Co., 228 F.2d 170, 172 (8th Cir. 1955) (NLRB proceeding), cert. denied, 351 U.S. 952, 76 S.Ct. 850, 100 L.Ed. 1476 (1956); People v. Dusing, 5 N.Y.2d 126, 128, 155 N.E.2d 393, 394, 181 N.Y.S.2d 493, 495 (1959); Nicholas v. Penny, 1950 2 K.B. 466, 473-74, (accuracy goes to weight of speedometer evidence), quoted in People v. Dantonio, 18 N.J. 570, 581, 115 A.2d 35, 41 (1955). See also Bourn v. Department of Employment Security, 134 Vt. 490, 365 A.2d 253 (1974) (in unemployment insurance case, employer carries risk of non-persuasion of accuracy of its tachographs).

None of these decisions, however, is controlling as to Pennsylvania law. Their precedential value depends on the persuasiveness of their logic. Examination of the cases does not disclose an explanation or rationale for their respective holdings. See, e. g., Villegas, 16 Ariz.App. at 458, 494 P.2d at 63 ("the law and common sense require"); Great Coastal Express, 34 Md.App. at 716, 369 A.2d at 124 (no reason given but quoted the trial judge who relied entirely on precedent from other jurisdictions); Thompson, 32 Ill.App.2d at 405, 178 N.E.2d at 155 (no reason); Jones, supra note 2, § 15:16, at 46 (no reason); McCormick, supra note 2, § 210 at 516 (merely relates majority rule; does not take independent view); Conrad, supra note 2, at 296 (unless showing of accuracy required "scientific proof of this nature becomes meaningless"; "common sense requires"). But see Bell, 323 S.W.2d at 426 ("because we are here dealing with a novel concept of evidence"); Nicholas, 1950 2 K.B. at 473 (if very slight inaccuracy would make substantial difference in outcome, court may demand strict showing of accuracy); id. 474 (accuracy may be attacked effectively on cross-examination); Wigmore, supra note 2, § 665a at 917 (scientists customarily rely on statements of others whose accuracy is unchecked; unfeasible for professional to test every instrument himself). Thus, not finding the precedent from other jurisdictions enlightening or persuasive, I shall start my analysis from scratch.

The competence of possibly inaccurate tachograph recordings seems most analogous to the competence of possibly inaccurate witness observations. See J. Wigmore, supra note 2, § 220. Wigmore refers to this problem as "perception by scientific process." Id. at 448. A witness is deemed competent to testify unless it is nearly impossible that he had first-hand observation. 3 J. Weinstein & M. Berger, Weinstein's Evidence, ¶ 60202, at 602-5 (1978); see Fed.R.Evid. 601, 602. The quality of a witness's observations is not an issue for foundations; it is a matter for impeachment. See, e. g., Wigmore, supra note 2, § 658(b). By analogy, it would appear that the accuracy of a first-hand speed measurement is also a matter for impeachment.

Evidence based on scientific measurement may pose difficulties not presented by eyewitness testimony. In particular, a court must contemplate the possibility that the mere introduction of "scientific" or other metric evidence may create an impact upon the jury such that the evidence cannot be effectively impeached.

First, the measurement technique may be highly sophisticated in contrast to the simplified output of the device. Examples of such techniques might be neutron activation analysis or radar. The jury may readily understand the output, e. g., speed, but impeachment based on the measuring technique itself, e. g., the Doppler effect, may be disproportionately difficult to comprehend.

Second, the device may be used so infrequently that the range of accuracy may be totally outside a layman's experience. For instance, a juror may accept a radar speed-gun reading of 50 m. p. h. as absolutely accurate, rather than accurate to plus or minus 5 m. p. h. Conversely, a normal fact trier reasonably may be expected to know that watches or commonly used instruments, like speedometers, are subject to some inaccuracy. Thus, even if a juror does not understand the inner workings of a watch, he will be receptive to evidence of inaccuracy. See J. Wigmore, supra note 2, § 220, at 450 (instruments such as telephone, thermometer, and theodolite, used commonly "without controversy or doubt" require no foundation).

Third, although based upon established techniques, the device may be so novel that its manufacturers have not yet ironed out all the wrinkles...