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City of New York and New York City Transit Authority v. Pullman Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


July 29, 1981; September 23, 1981.

THE CITY OF NEW YORK AND THE NEW YORK CITY TRANSIT AUTHORITY, PLAINTIFFS-APPELLEES ,
v.
PULLMAN INCORPORATED, PULLMAN-STANDARD, A DIVISION OF PULLMAN INCORPORATED, AND ROCKWELL INTERNATIONAL CORPORATION, DEFENDANTS-APPELLANTS .

ON PETITIONS FOR REHEARING

Before: WATERMAN and TIMBERS, Circuit Judges , and LASKER, District Judge .*fn*

Per Curiam:

The only matter in appellants' petitions for rehearing filed August 12, 1981 addressed to the panel which we believe warrants brief mention is appellant Pullman's reference to the decision of the Court of Appeals for the First Circuit in Robbins v. Whelan , 653 F.2d 47 (1 Cir. 1981), which Pullman contends supports its claim that the UMTA report should have been admitted pursuant to Fed.R.Evid. 803(8)(c).

We believe that Robbins clearly is distinguishable from the instant case and provides no support for appellants' contentions. First, the report found admissible in Robbins was a final report. The excluded report in the instant case was an interim report only and was subject to review. Second, the information contained in the report in Robbins was provided by persons not involved in the litigation in any way. In the instant case, on the other hand, the bulk of the information in the excluded report was provided to the agency by appellants themselves. Finally, and of primary importance, the information contained in the report in Robbins was derived from tests conducted according to detailed, objective standards published by the agency in the Code of Federal Regulations, and the third parties who conducted the tests were subject to statutory penalties for noncompliance with those standards. Robbins v. Whelan, supra , 653 F.2d at 51. Those objective standards, coupled with the sanctions for noncompliance, gave to the report a degree of reliability which was notably absent from the report in the instant case. Here the report was prepared from information furnished by the parties who conducted their own tests according to their own standards. As we stated in our opinion in the instant case, "[t]his lack of formal verification or procedure itself was sufficient to justify the exclusion of the report as untrustworthy." (citing authorities) City of New York v. Pullman Incorporated , F.2d , (2 Cir. 1981), slip op. 4279, 4288 (July 29, 1981).

Indeed, Chief Judge Coffin's thoughtful opinion in Robbins , in its analysis of Fed.R.Evid. 803(8)(c), strikes us as being consistent with our analysis of the same Rule. See Robbins, supra , 653 F.2d at 50-52; City of New York, supra , slip op. at 4286-88.

We have considered carefully all of appellants' claims set forth in their petitions for rehearing addressed to the panel and find that they do not warrant granting the petitions.

Petitions for rehearing denied.


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