Robbins v. Whelan, 79-1647

• Decision Date: 07 July 1981
• Docket Number: No. 79-1647,79-1647
• Citation: 653 F.2d 47
• Parties: 8 Fed. R. Evid. Serv. 1067 Larry W. ROBBINS, et al., Plaintiffs, Appellants, v. Robert W. WHELAN, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 47

653 F.2d 47

8 Fed. R. Evid. Serv. 1067

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.

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.

COFFIN, Chief Judge.

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 noticed some 700 feet away at the time Frye first approached the highway. Before entering the highway Frye looked in both directions. Upon entering he again looked in the direction of the Mercedes, and this time noticed that it was only 300 feet away and approaching at a speed of about 70 miles per hour. At this point Frye attempted to reenter the rest area. As the resulting collision attests, he was unsuccessful.

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 submitted. ³ In this particular case, although the tests were performed under specific controlled conditions, see 49 C.F.R. § 575.101(d) and (e) (1980), ⁴ the defendant has not attempted to demonstrate to us any differences existing at the time of the accident that were significant, except perhaps for the skill of the driver. The evidence that was presented at trial had otherwise established a dry road, no abnormal weather conditions, and a relatively new car in "A-1" condition. On this record the matchup of conditions was sufficient to allow the data to be presented to the jury. It is for the defendant to attack the weight to be accorded such evidence by presenting contrary evidence about how the variance between the test and actual conditions for instance, as when one car stops with skid marks and the other without might affect the inferences that the plaintiff urges be drawn.

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." Fed.R.Evid. 803(8). ⁵ The vehicle safety performance report meets the literal requirements of Rule 803(8)(C). It is a data compilation of a public agency. The findings it sets forth are purely factual, and resulted from a detailed inquiry that the agency undertook, see 49 C.F.R. § 575.101 (1980), pursuant to its statutory authority. See 15 U.S.C. § 1401(d). See also Report at i ("This publication is a compilation of data provided by the individual auto manufacturers in response to regulations issued by the Department of Transportation's National Highway Safety Bureau."). ⁶

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 identifying itself as "the second of the Consumer Information Series of publications designed to help you, the consumer, to know more about automobile safety performance." Id. Cf. 15 U.S.C. § 1423 (requiring same agency to publish tire grading information "to assist the consumer to make an informed choice"); Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1182 (5th Cir. 1975) (trustworthiness assured because publishing agency's "only conceivable interest was in insuring safety").

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 32-100o 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." 49 C.F.R. § 575.101(d)(7) (1980). The regulations also specify testing procedures, including preparatory burnishing, ⁷ allowable brake temperatures, and measuring methodology. Id. at § 575.101(e).

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 § 575.101(c) (emphasis added). This conservative standard suggests that the average car will have better performance characteristics than the reported information, if there is any variation at all (as is likely) between the performance of individual autos of a given model.

Finally, the supplying manufacturers have a significant incentive to comply with these detailed data reporting requirements. Their failure to do so violates the law, 15 U.S.C. § 1397(a)(1)(E), and renders them liable for civil penalties. Id. at § 1398(a).

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.

The defendant argues that Rule 803(8)'s exemption here cannot apply since the information in this data compilation was reported by public officials...