Asplundh Manufacturing Division v. Benton Harbor Engineering

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
6-20-1995
Asplundh Mfg v Benton Harbor
Precedential or Non-Precedential:
Docket 94-1095
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
Nos. 94-1095 and 94-1201
_______________________
ASPLUNDH MANUFACTURING DIVISION,
a Division of Asplundh Tree Expert Co.;
NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA.
Asplundh Manufacturing Division and
National Union Fire Insurance Company
of Pittsburgh, PA
Appellants in No. 94-1201
v.
BENTON HARBOR ENGINEERING,
Benton Harbor Engineering
Appellant in No. 94-1095
______________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 89-cv-00252)
______________________________________
Argued: August 12, 1994
Before: BECKER, ALITO, Circuit Judges, and
GIBSON, Senior Circuit Judge*
(Filed June 20, l995 )
BASIL A. DiSIPIO, ESQUIRE (ARGUED)
THOMAS FINARELLI, ESQUIRE
Lavin, Coleman, Finarelli & Gray
Penn Mutual Tower, 12th Floor
*
. Honorable John R. Gibson, Senior United States Circuit Judge
for the Eighth Circuit Court of Appeals, sitting by designation.
500 Walnut Street
Philadelphia, PA 19106
Attorneys for Asplundh Manufacturing
Division, a Division of Asplundh Tree
Expert Co. and National Union Fire
Insurance Co. of Pittsburgh
JOHN M. CORCORAN, ESQUIRE (ARGUED)
ROBERT G. KELLY, JR., ESQUIRE
Kelly, McLaughlin & Foster
1700 Atlantic Building
260 South Broad Street
Philadelphia, PA 19102
Attorneys for Benton Harbor Engineering
____________________________
OPINION OF THE COURT
_____________________________
BECKER, Circuit Judge.
The defendant, Benton Harbor Engineering ("Benton
Harbor"), appeals from an order of the district court denying its
motion for a new trial, and also from a judgment against it on a
contribution claim brought by Asplundh Tree Expert Co.
("Asplundh") and by National Union Fire Insurance Company of
Pittsburgh ("National Union"), Asplundh's liability insurance
carrier. Asplundh and National Union sought to recover some or
all of their costs in settling a wrongful death suit brought
against Asplundh by the estate of Jeffrey Sackerson, who was
killed when an Asplundh aerial lift in which he was working
fractured (Benton Harbor having manufactured the component part
of the aerial lift which allegedly failed). Benton Harbor's
principal argument on appeal is that the district court erred in
permitting Asplundh to adduce lay opinion testimony pursuant to
Federal Rule of Evidence 701 regarding what appear to be complex
technical issues concerning the cause of the metal failure.
Rule 701, which contemplates admission of lay opinions
rationally based on personal knowledge so as to be helpful to the
trier of fact, was primarily designed to allow lay individuals to
express opinions that are in reality only a shorthand statement
of fact. However, this court, like other courts, has commonly
interpreted the rule to permit individuals not qualified as
experts, but possessing experience or specialized knowledge about
particular things, to testify about technical matters that might
have been thought to lie within the exclusive province of
experts. This flexible, arguably expansive, interpretation of
Rule 701 appears to be consistent with its text. Where, however,
a party proffers a witness expressing an opinion on matters such
as the design of hydraulic cylinders or the cause of metal
failure, the trial court must be rigorous in assuring that the
lay witness satisfies the strictures of Rule 701. In particular,
the proponent of technical lay opinion testimony must show that
the testimony is based on sufficient experience or specialized
knowledge and also show a sufficient connection between such
knowledge or experience and the lay opinion such that it may be
fairly considered to be "rationally based on the perception of
the witness" and truly "helpful" to the jury.
Given the standard we articulate today for the
admission of lay opinion evidence of a technical nature, we
conclude that the district court’s ruling was based on an
impermissible interpretation of Rule 701; that is, because the
court failed to examine with sufficient rigor whether the
testimony in question was informed by sufficient experience or
specialized knowledge. More particularly, in order to satisfy
the rationally derived and helpfulness standards of Rule 701,
Asplundh needed to demonstrate that the witness possessed
sufficient experience or specialized knowledge which qualified
him to offer a technical opinion regarding the cause of metal
failure and the design of hydraulic cylinders. While a lay
witness could acquire this additional insight either by formal
education or practical experience, it appears the witness at
issue simply possessed neither. Because the admission of the
testimony was not harmless, we will reverse the judgment of the
district court and remand for further proceedings.
Although Asplundh and National Union cross appeal,
arguing that the district court erred in failing to award
prejudgment interest, we do not, in view of our result, reach
this question.
I. Facts and Procedural History
Jeffrey Sackerson was killed while operating an aerial
lift, manufactured by Asplundh, which was mounted onto a truck
chassis and used in tree trimming operations. At the time,
Sackerson was employed by the city of Portland, Oregon, which
owned, operated and maintained the aerial lift. When Sackerson's
estate filed a wrongful death suit against Asplundh, Asplundh and
its insurer, National Union, brought a third-party action seeking
contribution and indemnity from Benton Harbor, the manufacturer
of the lower boom cylinder containing the piston rod which
allegedly fractured and caused the accident. The jury returned a
verdict for Asplundh and National Union, finding Asplundh eighty
percent responsible and Benton Harbor twenty percent responsible.
The district court entered judgment for Asplundh and National
Union in the amount of $185,881.60, twenty percent of the
Sackerson settlement. Post-trial motions were filed by both
parties. Asplundh and National Union sought prejudgment
interest, and Benton Harbor sought a new trial based on alleged
error in admitting the lay opinion testimony of Michael Jones.
Both motions were denied by the district court. These appeals
followed.
Jones, the witness whose testimony is at issue, had
been fleet maintenance supervisor for the City of Portland for
more than ten years at the time of the accident. Jones's
responsibilities covered all city equipment, including the
Asplundh aerial lift. He supervised between sixty and one
hundred employees, six or seven city repair shops, and the
maintenance of 1385 pieces of equipment.
After the accident, Jones and his employees took apart
and inspected the aerial lift's boom assembly in the City of
Portland's shop. During this inspection, Jones observed the rod
from a distance of about fifteen inches. In his deposition,
Jones stated his opinion that a component of the lower boom
assembly -- the rod end -- had fractured. The rod end was a
threaded metal rod that was screwed into a threaded metal casing
called the rod cylinder. A hole was drilled through both the
casing and the rod end, and a metal pin was inserted through the
hole. See App. at 315.
Jones expressed the opinion that the fracture was
caused by metal fatigue and was attributable to the design of the
rod end. Id. at 161, 167. Specifically, he stated that there
was a "problem" because Benton Harbor's design called for a hole
to be drilled through the rod end at a point where it was
threaded. Id. Moreover, Jones noted that the cylinder rod had
oxidized around a portion of the break which was a different,
duller color than the rod's fresh break. From this, Jones
concluded that the break occurred in stages. Jones also related
that the break was in a threaded area where a hole had been
drilled through the rod. Jones concluded that the rod fatigued
inside the rod eye, causing the accident, stating that the stop
block on the lower boom cylinder rods did not contribute to the
accident.1
In particular, Jones attributed the accident "to the
way the rod was drilled through, and the fact that the rod eye
1
. Jones stated:
Well, it seems like -- seemed to me that all
the bulletins that came out after the fact,
after Sackerson’s death, were dealing with
the stop blocks as if the stop blocks somehow
would have saved his life. And there’s no
way I happen to believe that. Stop blocks
didn’t have a damn thing in the world to do
with Sackerson’s death.
App. at 166.
was screwed on on a threaded -- two threaded surfaces." App. at
167; App. at 160-61 ("The reasons [for the accident] are two:
one, the hole through the pin caused . . . the rod to be weakened
and, two, the threads . . . on the rod itself caused the breaking
point. They were sharp, and it broke right at the point where
all of those things intersected. That was the problem. There’s
no doubt in my mind about it. . . ."). He questioned the
appropriateness of this rod end design, stating that before his
examination he "had no idea that this thing was threaded on and
then drilled and pinned, up to that point," since he "had never
seen a cylinder that size configured that way." Id. Jones
reiterated that he "never saw other cylinders configured that
way," and that he "kn[e]w how other cylinders were configured
differently," since he was a production control manager for a
company that produced hydraulic cylinders. Id. Moreover, Jones
asserted expertise in this area, declaring, "I think I know how
to make hydraulic cylinders." Id.
Key portions of Jones's deposition were read to the
jury over Benton Harbor's objection. The district court
overruled the objections to the reading of the deposition
testimony, allowing Jones to testify as a lay witness expressing
an opinion under Rule 701. FED. R. EVID. 701. Benton Harbor
argues that Jones's technical deposition testimony is not the
type of lay opinion evidence properly admissible under Rule 701.
Our review is plenary, since the district court’s
ruling turns on an interpretation of Rule 701, which would permit
the admission of technical lay opinion evidence in this case. A
determination regarding the scope of evidence properly admitted
under a Federal Rule of Evidence is a question of law subject to
plenary review. See DeLuca v. Merrell Dow Pharm. 911 F.2d 941,
945 (3d Cir. 1990); U.S. v. Furst, 886 F.2d 558, 571 (3d Cir.
1989) ("To the extent that the district court’s admission of
[evidence] was based on an interpretation of the Federal Rules of
Evidence, we exercise plenary review.").
II. The Rule 701 Jurisprudence
A.
In determining whether Jones's opinion testimony was
properly admitted by the district court, we must determine the
scope of Federal Rule of Evidence 701, which provides:
If the witness is not testifying as an
expert, the witness' testimony in the form of
opinions or inferences is limited to those
opinions or inferences which are (a)
rationally based on the perception of the
witness and (b) helpful to a clear
understanding of the witness' testimony or
the determination of a fact in issue.
FED. R. EVID. 701.
Rule 701 represents a movement away from the courts'
historically skeptical view of lay opinion evidence. At common
law, witnesses not qualifying as experts were not permitted to
draw conclusions which could be characterized as opinion
testimony, but rather were required to limit their testimony to
facts, those things "they had seen, heard, felt, smelled, tasted,
or done." Hon. Charles R. Richey, Proposals To Eliminate the
Prejudicial Effect of the Use of the Word "Expert" Under the
Federal Rules [of] Evidence in Civil and Criminal Jury Trials,
154 F.R.D. 537, 542 (1994) ("Mere opinions were considered
unreliable bases for testimony.").
This rigid distinction between fact and opinion led to
numerous appeals and pervasive criticism by commentators. See
generally 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE ¶
701[01] (1994). Wigmore declared, in the first edition of his
treatise, that this distinction "has done more than any one rule
of procedure to reduce our litigation towards a sense of
legalized gambling." 3 JOHN H. WIGMORE, EVIDENCE § 1929 at 2563 (1st
ed. 1904); see also WILLARD L. KING & DOUGLAS PILLINGER, OPINION EVIDENCE
IN ILLINOIS 8 (1942) ("The American courts have had a great
struggle with a rule which appeared to require them to admit
statements of fact and exclude all inferences of the witness.
Such a rule is quite impossible of application: all statements
contain inferences."); JAMES B. THAYER, A PRELIMINARY TREATISE ON
EVIDENCE AT THE COMMON LAW 524 (1898) ("In a sense all testimony to
matter of fact is opinion evidence, i.e. it is a conclusion
formed from phenomena and mental impressions.").
Characteristically, however, the most eloquent
criticism of this common-law restriction on lay testimony was
made by Judge Learned Hand:
Every judge of experience in the trial of
causes has again and again seen the whole
story garbled, because of insistence upon a
form with which the witness cannot comply,
since, like most men, he is unaware of the
extent to which inference enters into his
perceptions. He is telling the "facts" in
the only way that he knows how, and the
result of nagging and checking him is often
to choke him altogether, which is, indeed,
usually its purpose.
Central R.R. Co. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926).
Judge Hand also stated:
The truth is, as Mr. Wigmore has observed at
length that the exclusion of opinion evidence
has been carried beyond reason in this
country, and that it would be a large advance
if courts were to admit it with freedom. The
line between opinion and fact is at best only
one of degree, and ought to depend solely
upon practical considerations, as, for
example, the saving of time and the mentality
of the witness.
Id. (citations omitted).
These concerns about the restrictions on lay
opinion testimony, combined with a more general liberalization in
those rules of evidence that operated to deprive the fact-finder
of relevant evidence,2 led to the adoption of Rule 701. The
Advisory Committee Note to the rule reflects the fact that Rule
701's liberalization of the admissibility of opinion evidence is
rooted in the modern trend away from fine distinctions between
fact and opinion and toward greater admissibility, tempered with
an understanding that the adversary process, and more
specifically, cross-examination will correct any problems:
2
. The admissibility of expert opinion testimony was also more
limited at common law and liberalized under the Federal Rules.
Among other requirements, expert testimony was limited to those
areas that were "not within the common knowledge of the average
layman." Bridger v. Union Railway Co., 355 F.2d 382, 387 (6th
Cir. 1966). With the enactment of the Federal Rules of Evidence
the common law restrictions on expert testimony have been
liberalized and the permissible content has been broadened.
The rule retains the traditional objective of
putting the trier of fact in possession of an
accurate reproduction of the event.
Limitation (a) is the familiar requirement of
first-hand knowledge or observation.
Limitation (b) is phrased in terms of
requiring testimony to be helpful in
resolving issues. Witnesses often find
difficulty in expressing themselves in
language which is not that of an opinion or
conclusion. While the courts have made
concessions in certain recurring situations,
necessity as a standard for permitting
opinions and conclusions has proved too
elusive and too unadaptable to particular
situations for purposes of satisfactory
judicial administration. Moreover, the
practical impossibility of determining by
rule what is a "fact," demonstrated by a
century of litigation of the question of what
is a fact for purposes of pleading under the
Field Code, extends into evidence also. The
rule assumes that the natural characteristics
of the adversary system will generally lead
to an acceptable result, since the detailed
account carries more conviction that the
broad assertion, and a lawyer can be expected
to display his witness to the best advantage.
If he fails to do so, cross-examination and
argument will point up the weakness. If,
despite these considerations, attempts are
made to introduce meaningless assertions
which amount to little more than choosing up
sides, exclusion for lack of helpfulness is
called for by the rule.
FED. R. EVID. 701 advisory committee's note (citations omitted).
The prototypical example of the type of evidence
contemplated by the adoption of Rule 701 relates to the
appearance of persons or things, identity, the manner of conduct,
competency of a person, degrees of light or darkness, sound,
size, weight, distance and an endless number of items that cannot
be described factually in words apart from inferences. See Mason
Ladd, Expert Testimony, 5 VAND. L. REV. 414, 417 (1952). The more
liberal approach to lay opinion testimony of this type gained
acceptance as a rule of "convenience," which allowed for
"`shorthand renditions' of a total situation, or [for] statements
of collective facts." 1 MCCORMICK ON EVIDENCE 44 & n.16 (4th ed.
1992); see also Mark McCormick, Opinion Evidence in Iowa, 19
DRAKE L. REV. 245, 248 (1970) (viewing this rule as allowing for a
"shorthand rendering of the facts").
As recognized by Professor Saltzburg, testimony that a
person was "excited" or "angry" is more evocative and
understandable than a long physical description of the person's
outward manifestations. STEPHEN A. SALTZBURG ET. AL., FEDERAL RULES OF
EVIDENCE MANUAL 1032 (6th ed. 1994). For example, a witness who
testifies that an individual whom he saw staggering or lurching
along the way was drunk is spared the difficulty of describing,
with the precision of an orthopedist or choreographer, the
person's gait, angle of walk, etc. See, e.g., United States v.
Mastberg, 503 F.2d 465 (9th Cir. 1974) (permitting under Rule 701
the testimony of a customs inspector that the defendant appeared
nervous); State v. Hall, 353 N.W.2d 37, 43 (S.D. 1984)
(permitting police officers to give lay opinion concerning
defendant's intoxicated state)3; Kerry Coal Co. v. United Mine
3
. All state cases cited herein are decided under state rules of
evidence identical or analogous to Rule 701 of the Federal Rules.
As of this entry, some 28 states have adopted Federal Rule 701
without change. See WEINSTEIN, supra, ¶ 701[03].
Workers, 637 F.2d 957, 967 (3d Cir.) (allowing the admission of
testimony that plaintiff's employees were "nervous and afraid" as
a shorthand report of witnesses' observations of employee
reactions), cert. denied, 454 U.S. 823 (1981).
Perhaps the best judicial description of this type of
testimony under Rule 701 is found in United States v. Yazzie, 976
F.2d 1252 (9th Cir. 1992). Yazzie was charged with statutory
rape under a federal statute that permitted a defense of
reasonable mistake as to the age of the minor. At trial, Yazzie
asserted that he reasonably believed that the minor, age fifteen-
and-a-half, was over the statutory age of sixteen. In support of
this contention, Yazzie called several witnesses who offered to
testify that, as of the date of the incident, their observations
caused them to believe the minor to be between the age of sixteen
and twenty. The trial court excluded this testimony as
impermissible lay "opinion" and limited the witnesses' testimony
to "facts," such as that the minor smoked cigarettes, wore make-
up, and drove a car. The Court of Appeals reversed, stating:
We understand Rule 701 to mean that opinions
of non-experts may be admitted where the
facts could not otherwise be adequately
presented or described to the jury in such a
way as to enable the jury to form an opinion
or reach an intelligent conclusion. If it is
impossible or difficult to reproduce the data
observed by the witnesses, or the facts are
difficult of explanation, or complex, or are
of a combination of circumstances and
appearances which cannot be adequately
described and presented with the force and
clearness as they appeared to the witness,
the witness may state his impressions and
opinions based upon what he observed. It is
a means of conveying to the jury what the
witness has seen or heard.
Id. at 1255 (quoting United States v. Skeet, 665 F.2d 983, 985
(9th Cir. 1982) (internal quotation marks omitted)). The court
concluded that the testimony of the witnesses satisfied Rule
701's requirements:
Here, the opinion testimony not only meets
the requirements of sub-part (a) of Rule 701,
but of both the alternative sub-parts of (b).
The testimony helps in the understanding of
the witnesses' descriptive testimony and in
determining a critical fact at issue --
whether it was reasonable for Yazzie to
believe that the minor was sixteen or older.
In the case before us, the jurors could
not themselves assess how old the minor
looked at the time of the incident: by the
time of the trial, the minor was almost
seventeen years old, and her appearance was
undoubtedly substantially different than it
had been on the night in question, a year and
a half earlier. Thus, the jurors were wholly
dependent on the testimony of witnesses. Yet
the witnesses were permitted to testify only
to the minor's describable features and
behavior. Their testimony was no substitute
for a clear and unequivocal statement of
their opinions. It did not tell the jury
that these witnesses believed the minor to be
at least sixteen years old at the time of the
incident.
Id. (footnote omitted).
Other examples of this type of quintessential Rule 701
opinion testimony include identification of an individual,4 the
4
. United States v. Langford, 802 F.2d 1176, 1178-79 (9th Cir.
1986) (admitting identification testimony with respect to persons
depicted in a bank surveillance photograph), cert. denied, 483
U.S. 1008 (1987); United States v. Allen, 787 F.2d 933, 935-37
(4th Cir. 1986) (same), cert. denied, 488 U.S. 944 (1988); United
States v. Farnsworth, 729 F.2d 1158, 1160-61 (8th Cir. 1984)
speed of a vehicle,5 the mental state or responsibility of
another,6 whether another was healthy,7 the value of one's
property,8 and other situations in which the differences between
(..continued)
(same); United States v. Jackson, 688 F.2d 1121, 1125 (7th Cir.
1982) (same), cert. denied, 460 U.S. 1043 (1983).
5
. United States v. Carlock, 806 F.2d 535, 552 (5th Cir. 1986)
(recognizing that a "common illustration" of an admissible
opinion under Rule 701 is "an expression of opinion by a lay
observer of a car's speed"), cert. denied, 480 U.S. 949 (1987);
see also Ernst v. Ace Motor Sales, Inc., 550 F. Supp. 1220, 1222-
23 (E.D. Pa. 1982) (admitting opinion testimony as to the point
of impact of two vehicles from a police officer who did not
observe a car accident, but arrived shortly thereafter), aff'd,
720 F.2d 661 (3d Cir. 1983).
6
. United States v. Lawson, 653 F.2d 299, 303 (7th Cir. 1981),
cert. denied, 454 U.S. 1150 (1982) (concluding that lay opinion
testimony by FBI agents as to defendant's sanity was properly
admitted despite fact that the agents had little opportunity to
view the defendant); Lewisohn v. State, 433 A.2d 351, 355 (Me.
1981) (concluding, in habeas corpus proceedings, that testimony
by witness that a certain juror, prior to having been selected
for jury, had preconceived notions that petitioner was guilty was
an inference rationally based on the witness' perception and
helpful in determining a fact in issue, and therefore properly
admitted).
7
. Singletary v. Secretary of HEW, 623 F.2d 217, 219 (2d Cir.
1980) (permitting, in a reversal of a denial of disability
benefits, the lay opinion of a claimant's son that his father was
an alcoholic and unable to work); State v. Jennings, 430 S.E.2d
188, 201 (N.C. 1993) (recognizing "the state of a person's
health" as "a proper subject[] for lay opinion").
8
. See United States v. Ranney, 719 F.2d 1183, 1189 & n.11 (1st
Cir. 1983) (permitting defrauded investors to testify as to the
value of their investment); Neff v. Kehoe, 708 F.2d 639, 643-44
(11th Cir. 1983) (reversing, in an action alleging
misrepresentations in sale of a coin collection, the exclusion of
testimony of the plaintiff/buyer, who was determined competent to
give lay opinion testimony as to the value of the coins, even
though such testimony was self-serving and unsupported by other
evidence); Garris v. Massey, 606 S.W.2d 109, 112 (Ark. Ct. App.
1980) (allowing owner of similar property to testify as to value
of property in issue).
fact and opinion blur and it is difficult or cumbersome for the
examiner to elicit an answer from the witness that will not be
expressed in the form of an opinion.9 See generally SALTZBURG,
supra, 1031-36; WEINSTEIN, supra, ¶ 701[02]. These cases, it is
important to add, all meet the core definitional terms of Rule
701 -- the opinion is based upon personal knowledge, as
rationally based thereon, and is helpful to the trier of fact.
B.
While many, if not most, of the cases decided under
Rule 701 are of the genre just described, the jurisprudence has
expanded beyond this core area to permit lay persons to express
opinions that are not shorthand statements of fact, so long as
the personal knowledge, rational basis and helpfulness standards
of Rule 701 are met. In particular, courts have permitted
witnesses with firsthand knowledge to offer lay opinion testimony
where they have a reasonable basis -- grounded either in
9
. United States v. McCullah, 745 F.2d 350, 352 (6th Cir. 1984)
(permitting, in a prosecution for conspiracy to steal, transport,
conceal and resell a tractor, the testimony of a government agent
describing the location of the tractor as "hidden" under some
trees, since it was rationally based on the perception of the
witness and helpful to a clear understanding of his testimony);
United States v. Sweeney, 688 F.2d 1131, 1145-46 (7th Cir. 1982)
(concluding a PCP and methamphetamine drug user could testify as
to identity of said drugs based on his prior use and knowledge,
his sampling of the substance, and the conclusion that the drug
affected him in the same manner as it had before); State v. No
Heart, 353 N.W.2d 43, 48 (S.D. 1984) (holding that a police
officer's opinion that victim's injuries were caused not by a
fist but by something sharper was properly admitted, given that
distinction between a wound caused by a fist and a wound caused
by a sharper object was within realm of an average person's
experience).
experience or specialized knowledge -- for arriving at the
opinion expressed. A conclusion by the trial court that the
witness possessed sufficient experience or specialized knowledge
has thus often been used to determine that the witness's opinion
testimony satisfies the requirements that the opinion be both
"helpful to a clear understanding . . . of a fact in issue" and
"rationally based" upon the witness's perception, as expressed in
the text of Rule 701.
Rule 701 cases satisfying these requirements are
arrayed along a spectrum, ranging from what might be described as
modest departures from the core area of lay opinion testimony,
described above, to those which approach the ambit of Rule 702
expert opinion. A good example of the former is our opinion in
Teen-Ed, Inc. v. Kimbell International, Inc., 620 F.2d 399 (3d
Cir. 1980) in which we held that a lay opinion from the
plaintiff's accountant and bookkeeper was proper:
The personal knowledge of appellant's
balance sheets acquired by Zeitz as Teen-Ed's
accountant was clearly sufficient under Rule
602 to qualify him as a witness eligible
under Rule 701 to testify to his opinion of
how lost profits could be calculated and to
inferences that he could draw from his
perception of Teen-Ed's books.
The fact that Zeitz might have been able
to qualify as an expert witness on the use of
accepted accounting principles in the
calculation of business losses should not
have prevented his testifying on the basis of
his knowledge of appellant's records about
how lost profits could be calculated from the
data contained therein.
Id. at 403.
 Similar to Teen-Ed are our opinions in Joy
Manufacturing Co. v. Sola Basic Industries, Inc., 697 F.2d 104,
110-12 (3d Cir. 1982), and Eckert v. Aliquippa & Southern
Railroad Co., 828 F.2d 183, 185 n.5 (3d Cir. 1987). In Joy, an
action against a manufacturer for damages resulting from the
failure of two heat treating furnaces, we held that it was an
abuse of discretion for the district court to exclude the
testimony of plaintiff's supervisor of production control
concerning the percentage of plaintiff's losses resulting from
hearth problems. Given that the witness in question had
extensive personal knowledge of plaintiff's plants and the
furnaces in question, we concluded that the witness's opinion was
rationally based on his personal knowledge and that the witness's
inability to state precisely why a furnace was inoperable at a
particular time was proper material for cross-examination rather
than a basis for inadmissibility.
In Eckert, a brakeman sued a railroad under the Federal
Employers Liability Act (FELA) and Safety Appliance Act (SAA) for
injuries suffered when the locomotive he was riding on collided
with another locomotive and both cars derailed upon failing to
couple. In concluding that the district court had improperly
held the SAA inapplicable to the case, we noted that the
plaintiff, who had offered testimony relevant to establishing SAA
violations, was qualified to testify by virtue of his thirty
years experience and familiarity with railroad procedures as to
whether injuries would have occurred had the cars been properly
coupled. A number of other cases also fit into this category
(that is, they represent a modest expansion from the core lay
opinion testimony contemplated by the adoption of Rule 701).10
C.
We recognize, however, that some lay opinion cases have
begun to move even further beyond the core area of Rule 701
opinion testimony and have begun, in a subtle gradation, to
10
. See, e.g., State Office Sys., Inc. v. Olivetti Corp. of
America, 762 F.2d 843, 845-46 (10th Cir. 1985) (permitting
admission of testimony as to lost future profits from company's
president/treasurer with personal knowledge of company's
operations, sales, and profits); State v. Johnson, 719 P.2d 1248,
1256-57 (Mont. 1986) (holding that, in a prosecution for driving
under the influence of alcohol, a police officer was properly
allowed to testify as a lay witness on the basis of his own
experience as to what generally happens to a car when its power
steering fails, where he had worked on vehicles of all kinds for
over ten years and had experienced power steering failure several
times); Schmidt v. J.C. Robinson Seed Co., 370 N.W.2d 103, 106
(Neb. 1985) (holding that the trial court properly admitted, in a
breach of contract action against a buyer of seed corn, opinion
testimony by the plaintiff/seed grower's witnesses concerning the
effect of shattercane on the seed crop, where the opinions, which
were helpful in determining the fact in issue, were rationally
based on perceptions stemming from extensive field observation
and personal farming experience); Hansen v. Skate Ranch, Inc.,
641 P.2d 517, 522-23 (N.M. Ct. App. 1982) (concluding, in a
personal injury action arising from a fall at a roller skating
rink, that the trial court properly admitted testimony of two lay
witnesses, who were experienced skaters present on the night of
the accident, regarding safety procedures used by the defendant
on the night of the accident); Lee v. State, 661 P.2d 1345, 1354-
55 (Okla. Crim. App. 1983) (concluding that an investigating
police officer could testify that spots on a carpet were blood,
and that a chemist, testifying on other matters, could offer a
lay opinion that the type of glass found at a murder location was
safety glass); Williamson v. O'Neill, 696 S.W.2d 431 (Tex. Ct.
App. 1985) (holding that the driver of a tractor-trailer rig, a
co-defendant in a personal injury lawsuit arising from an auto-
truck accident, was uniquely qualified, as the experienced driver
of the rig involved in the accident, to offer a lay opinion as to
the reason the trailer separated from the tractor, since his
opinion would be rationally based on his firsthand perceptions of
the accident and would help determine causation).
permit lay witnesses to express their opinions in areas in which
it would ordinarily be expected that only an expert qualified
under Rule 702 could give such testimony, such as whether a
product design was defective or whether certain factors (e.g., a
product defect) caused an accident.
For example, in Soden v. Freightliner Corp., 714 F.2d
498, 510-12 (5th Cir. 1983), the Fifth Circuit permitted a lay
witness to opine that the design of a truck was dangerous and
defective in a product liability action involving a post-
collision truck fire. The plaintiffs in this action claimed that
the design of a Freightliner truck's fuel system was unreasonably
dangerous and caused a post-collision fuel fire which killed
plaintiffs' decedent. Soden, 714 F.2d at 500. The "thrust" of
the plaintiffs' argument was that the Freightliner's fuel tanks,
which were mounted on the sides of the truck under the cab doors,
were dangerous. Id. As the Soden court explained:
In particular, they [the plaintiffs] also
argued that the brackets securing the steps
to these fuel tanks had pointed ends which,
in the event of a rollover, could puncture
the fuel tanks. The resulting hole or holes
could release diesel fuel near engine
components hot enough to ignite the fuel,
causing a fire in the engine-cab area.
Id.
The contested lay witness, Lasere, was a service
manager who supervised the preventive maintenance of about 500
trucks and was in charge of the daily maintenance of about sixty
trucks, mostly Freightliners, including the truck involved in the
accident. Id. at 510. Lasere also was in charge of removing the
truck from the scene of the accident and observed firsthand the
damage to the fuel tank. Id. At trial, he testified for the
plaintiffs regarding the cause of the accident and the
dangerousness of the design; specifically, Lasere testified that
step brackets had punctured the fuel tank. Id. at 510-11. In
particular, he stated that in the case at hand, and in two or
three other Freightliner accidents, he had observed "puncture
holes in the fuel tanks at the location of the step brackets."
Id. at 510. He then gave his opinion that the step brackets were
the cause of the puncture holes. After Soden's accident, Lasere
testified that he had modified the step brackets in the remaining
Freightliners in his fleet by "sawing off [the] pointed ends;"
and he expressed the opinion that the bracket's original design
was "dangerous." Id. at 511.
Sustaining the admission of Lasere's opinion testimony,
the Fifth Circuit stated:
No great leap of logic or expertise was
necessary for one in Lasere's position to
move from his observation of holes in
Freightliner fuel tanks at the location of
the step brackets, and presumably caused by
them, to his opinion that the situation was
dangerous. . . . Lasere's testimony with
respect to the dangerousness of the step
brackets was also obvious, given the
modification which he testified he made to
them after all he had seen.
Id. at 512. The court added, however, that Lasere's testimony on
this point "did constitute an opinion which might have been
better given by one more formally an expert." Id. And the court
subsequently reiterated that "although Lasere's opinion with
respect to `dangerousness' may have been more properly made by
one more formally an expert, given the particular facts of this
case, we conclude that no reversible error occurred in its
admission." Id. (emphasis supplied).
In our view, cases like Soden stretch the doctrinal
boundaries of Rule 701 opinion testimony.11 However, we agree
with the Fifth Circuit that such testimony does fall within the
ambit of Rule 701's requirement that a lay witness's opinion be
rationally based on firsthand observations and helpful in
determining a fact in issue. Though we agree with Benton Harbor
that the admission of lay opinion evidence in these technical
areas (e.g., concerning the existence vel non of a product defect
or whether an accident was caused by a certain condition) can
result in an attenuated form of expert opinion evidence far
removed from the considerations, described supra in Part II.A,
animating the lay opinion rule,12 it is not for us to rewrite the
11
. For example, in United States v. Myers, 972 F.2d 1566, 1577
(11th Cir. 1992), cert. denied, 113 S. Ct. 1813 (1993), lay
opinion testimony that burn marks were caused by a stun gun was
held admissible based on the witness' personal perception of the
burned skin and nineteen years of experience on the police force.
The court noted that the opinion's lack of technical/medical
basis could be exposed on cross-examination and affected the
weight, not the admissibility, of the evidence.
12
. In particular, we find problematic the views of some courts
which would appear to permit the firsthand knowledge of a lay
witness in these and other technical areas to entirely diminish
the need for the "knowledge, skill, experience, training or
education" of a witness qualifying under Rule 702. For example,
in United States v. Paiva, 892 F.2d 148, 155-57 (1st Cir. 1989),
where a lay witness who had used and tasted cocaine on many
occasions testified that a substance tasted like cocaine, the
First Circuit affirmed the admission of the evidence by the trial
court, rejecting the argument that a lay witness cannot testify
rule or reinterpret Rule 701 across the board.13 Accordingly, we
refuse to hold, as Benton Harbor requests, that all lay witnesses
offering opinions that require special knowledge or experience
must qualify under Rule 702.14
(..continued)
to such matters because only qualified experts can give such
testimony. While the holding appears unexceptionable, the court
unnecessarily declared that Rule 701 "blurred any rigid
distinction that may have existed between" lay and expert
testimony. Id. at 157. More refinement might have been in
order.
13
. This unwillingness to find a strict prohibition on lay
opinion testimony in technical matters is motivated, in no small
part, by our inability to designate the testimony involved in
prior caselaw as properly within the exclusive province of
experts. Indeed, in some cases, courts have noted that the
witness giving the lay opinion testimony might have qualified as
an expert. See, e.g., Teen-Ed, 620 F.2d at 403 (accountant who
gave lay opinion testimony might have qualified as expert); see
also Williams Enters., Inc. v. Sherman R. Smoot Co., 938 F.2d
230, 233-34 (D.C. Cir. 1991) (insurance broker, who might have
been qualified as an expert, was properly permitted to testify
that the construction collapse at issue may have contributed to a
substantial increase in the plaintiff's insurance premiums);
United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.)
(whether the testimony was lay or expert opinion, it was
permissible for an undercover agent to testify that a defendant
was acting as a lookout), cert. denied, 459 U.S. 1044 (1982).
14
. We believe, however, that such distinctions can and might
well be made by the drafters of the Federal Rules, in that, as
our discussion suggests, a better formulation of the lay opinion
rule would perhaps eliminate these matters from the ambit of Rule
701. Such an approach has been adopted by some states, including
Delaware, which provides:
If a witness is not testifying as an
expert, his testimony about what he perceived
may be in the form of inference and opinion,
when:
(1) The witness cannot readily,
and with equal accuracy and
adequacy, communicate what he has
perceived to the trier of fact
without testifying in terms of
inferences or opinions, and his use
However, the admissibility of opinion evidence under
the strictures of Rule 701 is not without limit. Rule 701’s
requirement that the opinion be "rationally based on the
perception of the witness" demands more than that the witness
have perceived something firsthand; rather, it requires that the
witness's perception provide a truly rational basis for his or
her opinion. Similarly, the second requirement -- that the
opinion be "helpful to a clear understanding of the witness's
testimony or the determination of a fact in issue" -- demands
more than that the opinion have a bearing on the issues in the
case; in order to be "helpful," an opinion must be reasonably
reliable. In other words, Rule 701 requires that a lay opinion
(..continued)
of inferences or opinions will not
mislead the trier of fact to the
prejudice of the objecting party;
and
(2) The opinions and inferences
do not require a special knowledge,
skill, experience or training.
DEL. UNIFORM RULES OF EVIDENCE RULE 701 (emphasis added). Similar
restrictions on lay opinion testimony have been adopted in both
Florida and Tennessee. See FLA. STAT. ANN. EVIDENCE CODE § 90.701;
TENN R. EVID. 701.
We take the liberty of commending this issue to the
attention of the Judicial Conference Advisory Committee on Rules
of Evidence, which monitors developments in evidence
jurisprudence. See generally Edward R. Becker & Aviva Orenstein,
The Federal Rules of Evidence After Sixteen Years -- The Effect
of "Plain Meaning" Jurisprudence, the Need for an Advisory
Committee on the Rules of Evidence, and Suggestions for Selective
Revisions of the Rules, 60 Geo. Wash. L. Rev. 857, 910 (1992).
As the authors observed, state modifications in their adaptations
of the Federal Rules can be quite instructive in providing
"solutions to identified problems in the drafting or
implementation of the Federal Rules." Id. at 862 n.18.
witness have a reasonable basis grounded either in experience or
specialized knowledge for arriving at the opinion that he or she
expresses. See Paiva, 892 F.2d at 157 ("Individual experience
and knowledge of a lay witness may establish his or her
competence, without qualification as an expert, to express an
opinion on a particular subject outside the realm of common
knowledge.").
In sum, for lay opinion as to technical matters such as
product defect or causation to be admissible, it must derive from
a sufficiently qualified source as to be reliable and hence
helpful to the jury. In order to satisfy these Rule 701
requirements, the trial judge should rigorously examine the
reliability of the lay opinion by ensuring that the witness
possesses sufficient special knowledge or experience which is
germane to the lay opinion offered. Our decision does not, as
suggested by the dissent, "limit the application of Rule 701 to
human experiences, human conditions, and, perhaps, vehicle speed
and property value," nor does it eliminate lay opinion as an aid
to the jury in technical matters. Rather, as we have stated, a
lay witness with first-hand knowledge can offer an opinion akin
to expert testimony in most cases, so long as the trial judge
determines that the witness possesses sufficient and relevant
specialized knowledge or experience to offer the opinion.
The importance of these precepts is reinforced by the
recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
___ U.S. ___, 113 S. Ct. 2786 (1993). Daubert, of course, deals
with the evaluation of the scientific testimony of an expert
focusing upon the reliability of the scientific method on which
the conclusions of an expert are based. But, one of the "Daubert
factors" is the expert's knowledge and qualifications, and the
centerpiece of the Daubert regime is the gatekeeping role of the
trial judge, whose duty it is to screen challenged expert
testimony and assure that it is sufficiently reliable to be of
assistance to the jury. Daubert, 113 S. Ct. at 2794-95; In re
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 748 (3d Cir. 1994)
("Daubert makes clear for the first time at the Supreme Court
level that courts have to play a gatekeeping role with regard to
experts."). While we are careful not to suggest that Daubert
applies to Rule 701, we believe that its spirit also counsels
trial judges to carefully exercise a screening function with
respect to Rule 701 opinion testimony when the lay opinion
offered closely resembles expert testimony.15
Though we acknowledge that important differences
between lay opinion evidence and expert testimony exist,
justifying a greater level of scrutiny of Rule 702 expert opinion
evidence,16 we do not believe such differences effectively
15
. The dissent’s assertion that our decision "is directly
contrary to the teaching of Daubert which focused on the language
of Rule 702" is simply inaccurate. Our conclusion that the trial
judge should rigorously examine the reliability of the opinion,
by ensuring that the witness possessed sufficient special
knowledge or experience, derives ultimately, as we have stated,
from the explicit requirements of Rule 701, which dictate that
the lay opinion be "rationally based" on the witness's
observations and "helpful" to the jury.
16
. Such differences include the following: (1) designation of
an opinion as "expert" by the court may cause the jury to give
the "witness more attention and credence" then an opinion
admitted from a "lay person" under Rule 701, Richey, supra, 154
vitiate the need for some judicial gatekeeping on the part of the
trial judge in the case of lay opinion testimony of a technical
nature. Allowing a witness, with first-hand knowledge, to offer
a technical opinion which he lacks the necessary knowledge and
experience to make, runs afoul of the requirements of Rule 701.
It is clear, therefore, that in appropriate circumstances a trial
court should exclude proffered evidence, otherwise admissible as
relevant under Fed R. Evid. 401, on grounds that the witness's
knowledge and the consequent basis for his or her rational
perception are insufficient under the rule.
The judicial Rule 701 screening that we speak of for
cases such as this one is not very different from the screening
that attends the ordinary expert qualification ruling. See
Paoli, 35 F.3d at 740-46. In determining whether a lay witness
has sufficient special knowledge or experience to ensure that the
lay opinion is rationally derived from the witness's observation
and helpful to the jury, the trial court should focus on the
substance of the witness's background and its germaneness to the
issue at hand. Though particular educational training is of
course not necessary, the court should require the proponent of
the testimony to show some connection between the special
knowledge or experience of the witness, however acquired, and the
(..continued)
F.R.D. at 544; and (2) the opinion of a lay witness must be based
on his or her personal firsthand perception, while an expert may
opine in response to hypothetical questions, see Teen-Ed, 620
F.2d at 404 ("The essential difference [between Rule 701 and
702], however, is that a qualified expert may answer hypothetical
questions.").
witness's opinion regarding the disputed factual issues in the
case.
The lay opinion testimony held to be admissible in our
prior Rule 701 decisions satisfied this standard. In Teen-Ed,
Inc. v. Kimball International, Inc., 620 F.2d at 399, the
accountant who testified as a lay witness had very particular and
quite extensive prior experience with Teen-Ed’s books, which
allowed him to properly calculate for the court how lost profits
should be determined and to draw inferences from his examination
of the accounts.17 Id. at 403. And in Joy Manufacturing Co. v.
Sola Basic Industries, Inc., 697 F.2d 104 (3d Cir. 1982), the lay
witness had "extensive personal knowledge of Joy's [the
plaintiff's] plants, its on-going heat treating processes, and
the two furnaces in question," and we stated that he had
"sufficient personal knowledge of Joy's [the plaintiff's] heat
treating facility to make an estimate of what amount of downtime
was due to the hearth problems." Id. at 111-12.
Moreover, in In re Merritt Logan, Inc., 901 F.2d 349
(3d Cir. 1990), an action by the purchaser of an allegedly
defective refrigeration system against the seller, installer, and
manufacturer of the system, the principal shareholder of the
plaintiff (Logan) was permitted to express an opinion as a lay
17
. Moreover, Teen-Ed is a case in which the witness would have
qualified under Rule 702, but was precluded from testifying as an
expert because Teen-Ed failed to list him as required in a pre-
trial order. Id. ("We interpret the pre-trial ruling in this
case to have required identification of expert witnesses under
Rules 702 and 703, but not of lay witnesses under Rule 701.").
witness concerning his company's lost profits. In addition,
another witness, Gilchrist, who had surveyed the site where the
refrigeration system was to be located prior to its installation
and had made an estimate of the weekly sales that could be
achieved at that site, was permitted to testify concerning his
survey. We held that the admission of these lay opinions was
proper under Rule 701, stating: "Mr. Logan's personal knowledge
of his business and Gilchrist's personal knowledge of how he
prepared his survey were sufficient to make these witnesses
eligible under Rule 701 to testify as to how lost profits could
be calculated." Id. at 360.18
Mindful of the need for the proponent of technical lay
opinion testimony to show that the witness possesses sufficient
knowledge or experience which is germane to the lay opinion
offered, we turn to the facts of this case.
18
. See also Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir.)
(involving a securities action where the plaintiffs claimed that
the offering memoranda for certain limited partnerships were
false and misleading), cert. denied, 474 U.S. 946 (1985). In
Eisenberg, we held that an attorney had properly been permitted
to testify as a lay witness with respect to "what he believed
should have been included in one of the private offering
memoranda and as to whether the memorandum complied with the
applicable disclosure requirements." Id. at 780. We noted that
the witness, a partner of one of the individual defendants and a
principal in a law firm named as a defendant, had sufficient
knowledge and experience as "a lawyer specializing in business
litigation, who ha[d] also acted as general counsel for banks,
trucking companies and brokerage houses." Id. ("Although he had
represented clients in securities cases, and testified that he
was familiar with the disclosure requirements of federal and
state securities laws, he did not view himself as expert in the
preparation of offering memoranda.").
III. Application of Rule 701 to Jones's Opinion Testimony
To recapitulate, the testimony in question here is
Jones’s opinion that the accident had resulted from metal fatigue
inside a piston rod which he attributed to the faulty design of
Benton Harbor’s rod end. The district court did not limit
Jones’s testimony to describing the state of the metal inside the
rod-end and the fact that it had broken. Rather, it allowed
Jones to offer a lay opinion as to the cause of the break.
Specifically, Jones stated that there was a "problem" because
Benton Harbor's design called for a hole to be drilled through
the rod end at a point where it was threaded. App. at 161 & 167.
The district court admitted Jones’s testimony pursuant to Rule
701, since it concluded it was within "the ambit of common
sense."
Asplundh contends that the district court properly
admitted Jones's opinion since the opinion satisfies Rule 701's
requirements in that it was rationally based on Jones’s firsthand
observations of the fractured rod and helpful to a determination
of a fact in issue. We agree that Jones's testimony satisfied
Rule 701's requirement of firsthand knowledge since: (1) he saw
the disassembled lift shortly after the accident from a distance
of approximately fifteen inches; (2) he observed the colorations
of the metal fracture surface; and (3) he saw the break in the
threaded area where a hole had been drilled through the rod. But
we do not agree that his opinion was rationally based on these
observations or helpful to the jury's determination of a fact in
issue because in proffering Jones’s testimony, Asplundh failed to
satisfy the standard we articulate today for lay opinion
evidence.
In particular, we conclude that the district court
applied an incorrect legal standard under Rule 701 to the extent
that it failed to require Asplundh to show a sufficient knowledge
or experience and sufficient connection between Jones’s special
knowledge or experience and his opinion regarding the cause of
the accident and the design of the hydraulic cylinder.19 While
the district court did summarily conclude at one point in its
analysis that Jones’s "employment experience" gave him
"substantial knowledge in this area," we do not believe it
examined with sufficient rigor the question whether Jones
possessed the knowledge or experience necessary to offer an
opinion of such a technical nature.
Jones was the fleet maintenance supervisor for the city
of Portland for more than ten years, supervising the maintenance
of 1385 variegated pieces of equipment and six or seven repair
shops. Jones was present when the aerial lift was disassembled
and observed the damage to the rod. Asplundh suggests that, as
in Soden, the conclusions and opinions expressed by Jones were
19
. The dissent contends that the district court did apply a
correct legal standard under Rule 701 and would therefore review
the district court’s decision to admit Jones’s testimony for
abuse of discretion. We disagree, given that we conclude that
the district court violated the "rationally derived" and
"helpfulness" standards of Rule 701 in failing to examine with
sufficient rigor the question of whether Jones possessed
appropriate experience or knowledge to offer an opinion regarding
the cause of metal failure and the proper design of hydraulic
cylinders.
those that a normal individual in his position with his
experience would have drawn. See Soden, 714 F.2d at 512. But
Benton Harbor's response is telling. It points out that Jones
lacked formal education; had not taken courses in metallurgy,
material failures or metal fatigue; and had not designed a
hydraulic cylinder. He had one year of college studies plus
other job-related courses. Moreover, Jones had never conducted
any studies of materials or material compositions. Besides
having never designed a hydraulic cylinder, he had never
personally participated in manufacturing a hydraulic cylinder.
Although he worked some seven or eight months as a production
control manager for a company which used hydraulic cylinders in
their product, in that position he was responsible only for
initiating manufacture and had no design responsibilities
notwithstanding his bold assertion, "I think I know how to make
hydraulic cylinders." App. at 168.
The question we are presented with is whether it was
permissible for Jones to express the opinion that the rod end had
broken due to metal fatigue and that the design of the rod end
was a "problem." App. at 160-61 ("The reasons [for the accident]
are two: one, the hole through the pin caused . . . the rod to be
weakened and, two, the threads . . . on the rod itself caused the
breaking point. They were sharp, and it broke right at the point
where all of those things intersected. That was the problem.
There’s no doubt in my mind about it . . . ."). In our view
these opinions are not ones that an average lay person would be
equipped to draw, absent sufficient evidence of specialized
knowledge or experience. We disagree with the dissent’s
assertion that "[f]atigue failure of metal is not unfamiliar" to
persons "such" as Jones, and simply do not believe that the
average lay person, dissent infra at page 16, absent sufficient
knowledge or experience with metals, is qualified to offer a
meaningful opinion on questions of metal fatigue of this nature.
Metal fatigue is a technical concept. There are many reported
cases in which experts have testified (and disagreed) as to
whether metal fatigue could be detected based on a post-accident
examination,20 but we have not found a single reported case in
which a lay witness has given such testimony. The consistent use
of experts to testify regarding such questions underscores the
technical nature of Jones’s opinion.
In describing this testimony as within the "ambit of
common sense," the district court would characterize Jones’s
testimony as equivalent to the observation that "if you take a
piece of metal and put in a vice and bend it back and forth
enough times, it fatigues and it breaks." The dissent agrees.
But, Jones’s opinion was far more technical and, in particular,
attributed the accident to the manner in which Benton Harbor had
chosen to design the rod end. See App. at 167-68 (Jones
attributed the accident to the fact that the "rod was drilled
20
. See, e.g., Fusco v. General Motors Corp., 11 F.3d 259, 261
(1st Cir. 1993); Marrocco v. General Motors Corp., 966 F.2d 220,
225 (7th Cir. 1992); Salter v. Westra, 904 F.2d 1517, 1520 (11th
Cir. 1990); Grover Hill Grain Co. v. Baughman-Oster, Inc., 728
F.2d 784, 789 (6th Cir. 1984); Southwire Co. v. Beloit Eastern
Corp., 370 F. Supp. 842 (E.D. Pa. 1974).
through, and the fact that the rod eye was screwed on on a
threaded -- two threaded surfaces," and questioned this design
since he "kn[e]w how to make hydraulic cylinders" and he "had
never seen a cylinder that size configured that way").
While the average lay person -- after examining the rod
end and seeing that it had broken in a spot where the rod end was
threaded and a hole had been drilled through it -- might well
properly conclude under Rule 701 that the rod end had broken at
what appeared to be its weakest point, such a person could not
reasonably go further and conclude that the rod end was
defectively weak at this point. The dissent contends the
admissibility of this testimony was proper since "this is a
nation where many individuals grow up with extensive mechanical
experience and capabilities." Dissent infra at page 14. We
simply do not believe that the realm of common knowledge extends
to such issues as the presence and cause of metal failure and the
proper design of hydraulic cylinders. Given the requirements of
Rule 701, Asplundh needed to demonstrate that Jones possessed
relevant experience or specialized knowledge germane to his
opinion in order to satisfy the rationally derived and
helpfulness standards of the rule. While a lay witness may
acquire this additional insight either by formal education or
practical experience, it appears Jones simply possessed
neither.21
21
. The dissent asserts, infra at page 13, that "Jones had
substantial technical knowledge so as to tell whether metal is
fatigued" but then fails to point to any evidence which would
demonstrate that Jones had any knowledge or experience in
Jones's experience as Portland's fleet maintenance
supervisor, supervising the upkeep of 1385 pieces of equipment
and six or seven repair shops, is inapplicable. While these are
weighty responsibilities, they do not seem to have anything to do
with designing or evaluating the design of machinery. By way of
example, the maintenance supervisor for a fleet of rental cars
would hardly be qualified to express an opinion on whether the
braking system of a particular model was defectively designed,
absent some special qualifying proffer. Moreover, as fleet
maintenance supervisor, Jones was involved in supervising the
maintenance of numerous types of equipment and had no special
experience with metal failure or hydraulic cylinders. Likewise,
Jones's prior employment experience as a production control
manager does not seem pertinent, since he had no design
responsibilities. Equally inapplicable is Jones’s previous job
as a riveter in the manufacture of blowoff fuel tanks for
military aircraft and the fact that he repaired his own
automobile. App. at 181. Neither appear to enhance Jones’s
knowledge or experience to offer an opinion on metal fatigue or
the design of hydraulic cylinders.
In support of the admission of Jones's opinion
testimony, Asplundh relies principally on the Fifth Circuit's
opinion in Soden, discussed supra, which, as we have stated,
(..continued)
assessing metal fatigue. Absent some evidence of such experience
or knowledge, Jones’s opinion was inadmissible under Rule 701
since it could not be rationally derived from his observations or
helpful to the jury.
would likely satisfy the standard we articulate today. While we
acknowledge that Jones's testimony bears a certain similarity to
Lasere's opinion regarding the design of the Freightliner fuel
tanks, we believe Jones simply lacked the unique experience which
allowed Lasere, the witness in Soden, to properly offer his lay
opinion.
The Fifth Circuit concluded that the testimony of
Lasere was properly admitted under Rule 701 on the grounds that
he had eighteen years of experience in repair and maintenance of
the particular trucks involved in the accident and, importantly,
he had actually modified these trucks, which were under his care,
so as to prevent the alleged defect in the truck’s design from
rupturing the freightliner’s fuel tank in future accidents.
Lasere actually examined on previous occasions an unknown number
of Freightliners that had been involved in serious accidents
(presumably, in light of the nature of his job, not a great
number), and in two or three of those cases he had observed facts
that provided a reasonable basis for inferring that the design of
the step brackets had caused holes in one of the fuel tanks,
which were located near the engine. Moreover, he had devised a
simple means (sawing off the pointed ends) by which the step
brackets might be made safer.
More importantly, Lasere's opinion, regarding the
dangerousness of the design of the Freightliner, was rationally
derived from his particular experience with the Freightliners'
fuel tanks.22 This experience allowed the Fifth Circuit to
conclude that Lasere had "very considerable practical experience
and specialized knowledge." Soden, 714 F.2d at 511. Given his
unique experience, the court was able to conclude that his
conclusion that the design of the step brackets was dangerous
required "no great leap in logic or expertise." Id. at 512.
While we agree with the dissent that the opinion
admitted in Soden went, in a sense, beyond that offered by Jones
since Lasere characterized the design of the Freightliner’s fuel
tanks as "dangerous," we believe, given Lasere’s unique knowledge
and experience with the truck’s fuel tanks, he was qualified to
draw such an opinion. In contrast, Jones simply lacked anything
resembling Lasere’s specialized knowledge or experience. In
particular, Jones had never before taken these cylinders apart in
association with similar accidents. Moreover, unlike Lasere,
Jones had never taken any steps to modify, what he perceived to
be, the faulty design of the rod end.
Asplundh does not respond to the problem of Jones's
lack of specialized knowledge and experience. Rather, it
suggests that it is enough that Jones observed the rod end
firsthand, that his opinion testimony helped the jury to
determine the cause of the lift's failure and the role played in
22
. As noted, Lasere's bases for his opinion were: (1) the
design featured pointed step brackets resting on the fuel tanks;
(2) the fuel tanks were near the cab and the engine; (3) the
reasonable inference that this design had a tendency to cause
punctures of the tanks in roll-over accidents; and (4) and the
fact that he found a simple way to make the design safer.
it by the rod manufactured by Benton Harbor, and that Jones was
subject to cross-examination. We disagree. As we have stated,
under Rule 701 the trial judge must play some gatekeeping role so
as to ensure that the rationally derived and helpfulness
requirements of the rule are met.
To use a simple yet illustrative example, if an issue
in a case was whether the sun revolved around the earth, and the
proponents of the Ptolemaic system proposed to prove their case
by lay opinion testimony, such testimony could satisfy Asplundh's
requirement of "firsthand" observation ("I have observed the sun
firsthand for many years, and I have seen that each day it moves
across the sky from the east to the west."). Such testimony
would also be helpful to the jury to the extent that it would
tend to suggest a result that the jury should reach. And such
testimony could be subjected to cross-examination by a proponent
of the Copernican system. But it does not follow that this lay
opinion testimony meets the rational basis or helpfulness
requirements as they are contemplated by Rule 701 or that it
would be admissible. Yet nothing in the district court's
analysis would have excluded such testimony.
IV. Conclusion
We are convinced that the court’s admission of Jones’s
opinion testimony was not harmless and therefore represents
reversible error, since we cannot conclude that "it is highly
probable that the error did not contribute to the judgment."
Advanced Med. Inc. v. Arden Med. Sys., 955 F.2d 188, 199 (3d Cir.
1992). As we have explained, the district court erred in
admitting Jones’s testimony under Rule 701 by failing to apply
its analysis with the rigor required in this type of case. More
particularly, the district court needed to determine whether
Jones’s knowledge or experience qualified him to offer an opinion
which attributed the accident to metal failure and the allegedly
improper design of Benton Harbor’s hydraulic cylinder. There is
no indication in the record that Jones possessed sufficient
knowledge or experience to allow Asplundh to satisfy the standard
articulated today and obtain admission of Jones's opinion.
Nevertheless, we will remand the case to allow the district court
to determine, in light of our opinion, whether to permit further
proceedings to qualify Jones's opinion. In the absence of such
proceedings or the establishment of such qualification, the
district court should order a new trial.
The judgment of the district court and its order
denying the motion for a new trial will be reversed and the case
remanded for further proceedings consistent with this opinion.
___________________________
Asplundh Manufacturing Division, a Division of Asplundh Tree
Expert Co.; National Union Fire Insurance Company of Pittsburgh,
Pa. v. Benton Harbor Engineering, Nos. 94-1095 and 94-1201
JOHN R. GIBSON, Senior Circuit Judge, dissenting.
I respectfully dissent.
The Court today painstakingly analyzes the history
of Rule 701 and its intended relaxation of the rules regarding
opinion evidence. The Court then develops a "core area" of Rule
701 lay opinion testimony and unduly limits the admissibility of
testimony outside of that core area. In order to do so, the
Court imposes on Rule 701 the language and requirements of Rule
702 that a demonstration of the witness's knowledge and
experience support the opinion, and thus abrogates the
distinction between Rule 701 and 702 in the area of technical
opinion evidence. The Court then determines that the district
court did not use "sufficient rigor" in determining "whether the
testimony in question was informed by sufficient experience or
specialized knowledge," supra at 4, and utilizes an essentially
discretionary rule under the guise of plenary review. In my
view, the district court properly applied Rule 701, and did not
abuse its discretion in admitting the evidence.
I.
Today the Court argues that the district judge's
ruling on the admissibility of Jones's opinion evidence involved
interpretation of Rule 701 and, accordingly, should be given
plenary review. The authority relied upon simply does not bear
the weight which the Court places on it.
In DeLuca v. Merrell Dow Pharmaceuticals, Inc.,
911 F.2d 941 (3d Cir. 1990), this Court held that the district
court's "cursory" ruling excluding expert testimony erroneously
interpreted the Federal Rules in two respects: (1) the court
analyzed the expert's qualifications under Rule 703, rather than
Rule 702, id. at 953; and (2) the court implicitly required the
expert to accept a study's conclusion in order to utilize the
underlying data as a basis for testimony, although Rule 703
contains no such requirement. Id. at 954. Because admissibility
depended on the district judge's interpretation of Rule 703, the
Court applied a plenary standard of review, id. at 944, and
remanded the case for further consideration of the proffered
testimony. Id. at 956-57. Most tellingly, the Court instructed
that the ruling on remand should display "sensitivity to the
relevant policy judgments reflected in the Federal Rules of
Evidence," which "embody a strong and undeniable preference for
admitting any evidence having some potential for assisting the
trier of fact and for dealing with the risk of error through the
adversary process." Id. at 956.
The Court also relies on United States v. Furst,
886 F.2d 558 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990),
which held that there was insufficient foundation for the
admission of business records. Id. at 572. In Furst, the Court
articulated the rule the Court today espouses, id. at 571, but
did not further indicate which standard it used, stating only
that "the district court erred" in admitting the evidence. Id.
at 573.
Most significantly, however, both DeLuca and Furst
rely upon In re Japanese Electronic Products Antitrust
Litigation, 723 F.2d 238, 265 (3d Cir. 1983), rev'd on other
grounds sub nom., Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574 (1986). In that case, this Court held:
The scope of our review . . .
depends on the basis for the [trial
court's] ruling. When the trial
court makes Rule 104(a) findings of
historical fact . . . we review by
the clearly erroneous standard of
Fed.R.Civ.P. 52. But a
determination [by the trial court],
if predicated on factors properly
extraneous to such a determination,
would be an error of law. There is
no discretion to rely on improper
factors. . . . In weighing factors
which we consider proper, the trial
court exercises discretion and we
review for abuse of discretion.
Id. at 265-66. The Court proceeded to apply all three standards.
Most critically relevant for our purposes, the Court held that
the district court erred in developing its own standards and in
acting as the ultimate arbiter of the reliability of the
materials upon which the expert based his opinion. See Zenith
Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1313,
1321-30 (E.D. Pa. 1981), rev'd, In re Japanese Elec. Prods., 723
F.2d 238. This Court held the district court's approach to be
"fundamental legal error because, as a matter of law, the
district court must make a factual inquiry and finding as to what
data experts in the field find reliable." In re Japanese Elec.
Prods., 723 F.2d at 277.23 This Court held that the district
court's approach "reject[ed] the decision of the Judicial
Conference, the Supreme Court, and Congress" in "adher[ing] to an
unusually restrictive view as to the basis on which an expert's
opinion may be laid." Id. at 277. The ruling of the district
court, containing legal interpretation of the meaning of the
Rule, was correctly subjected to review under a plenary standard.
The record before us stands in sharp contrast to
that in DeLuca and Furst, and, particularly, to that in In re
Japanese Electronic Products. In the case before us, the
district court did not involve itself in an interpretation of the
Rule as in DeLuca and In re Japanese Electronic Products. Those
cases cannot support application of the rule of plenary review in
this case.
Nothing in the record indicates that the district
judge engaged in interpretative analysis of the meaning of Rule
23
. In In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d
Cir. 1994), cert. denied, 115 S. Ct. 1253 (1995), this Court
followed Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct.
2786 (1993), and rejected its substantive discussion concerning
Rule 703 in In re Japanese Electronic Products. Paoli, 35 F.3d
at 747-748. More significant for our purposes, Paoli continued
to recognize plenary review of a district court's interpretation
of a Federal Rule of Evidence. Id. at 749.
701. Rather, the district judge carefully analyzed Jones's
deposition testimony and found it admissible by applying the
Rule. His analysis was quintessentially an exercise of
discretion which should be reviewed only for abuse and be given
substantial deference. The Court today pays no heed to the
district court's thorough and detailed ruling on the
admissibility of Jones's testimony, but simply casts that ruling
aside on the basis of this Court's own analysis.
II.
A close look at the record reveals that the
district judge exercised great care in ruling on the
admissibility of this evidence. After reading a portion of the
deposition during consideration of the objections, the district
judge remarked:
Just because you [sic] don't have a
sheepskin doesn't mean he is not an
expert. It seems to me he has
substantial knowledge in this area,
so that because of his employment
experience, many years on the job,
he can tell whether metal is
fatigued; he can tell whether
screws, threads, threading of
screws, whatever are shorn,
whatever, going beyond the ken of a
lay person.
(Emphasis added).
The district judge specifically
articulated Asplundh's argument
that Jones testified as an expert,
not a lay person, and stated that
"[u]nder [Rule] 701, of course, we
are talking about lay opinion."
The district court expanded upon
this by stating: This guy
is not an expert. However, he has
all this experience, these are his
opinions, these are the reasons for
his opinions, but we are not going
to call him as an expert. We want
to get the evidence in, let the
jury assess it in view of his
umpteen years on the force.
After dismissing the jury, the district judge commented to
counsel that:
I don't have any background in
metallurgy, but I can take this
paper clip and I can bend it for a
while. I can give you a pretty
good idea when I think it's going
to break because of metal fatigue.
And all I do is occasionally use
paper clips. That is a lay
opinion.
After considering whether the rod's weakness required expert
opinion, the district judge commented: "That would fall within
the ambit of common sense embraced by both sides here."
The next morning, the district judge ruled:
Counsel, with respect to the [Rule]
701 issue, I have been reviewing
the transcript. . . . So, under
all the circumstances looking at
Rule 701, as I must, and finding
ample explanation, be it valid or
not within the record for the 701,
allegedly 701 opinions there
adduced, I am going to overrule the
objection and permit that testimony
to be read. I believe it goes to
the weight.
The record before us reveals a painstaking study
of the deposition testimony of Jones and the application of Rule
701 in determining that it was admissible. This evidentiary
ruling is palpably an exercise of discretion rather than an
interpretation of the Rule.
III.
The Court today rewrites Rule 701, holding that
the district court misinterpreted Rule 701 by failing to examine
with sufficient rigor whether Jones possessed the knowledge or
experience necessary to offer an opinion of a technical nature.
Supra at 4. When the Court's lengthy analysis and discussion is
stripped aside, the holding has two parts: first, the Court has
interpreted Rule 701 to incorporate the Rule 702 requirement that
there be a demonstration that the witness possesses sufficient
experience or specialized knowledge to qualify the witness to
express a technical opinion; second, the Court requires that this
Rule be examined with sufficient rigor.
The Court articulates the experience and knowledge
requirement after an exercise in ambivalence. The Court first
refuses to hold "that all lay witnesses offering opinions that
require special knowledge or experience must qualify under Rule
702." Supra at 23. It so states after having found problematic
the views of some courts which would permit a lay witness in
technical areas to diminish the need for the "knowledge, skill,
experience, training or education" of the witness qualifying
under Rule 702. Supra at 22 n.14. The Court then states that
"the admissibility of opinion evidence under the strictures of
Rule 701 is not without limit," and reads the language of the
Rule to require that "a lay opinion witness have a reasonable
basis grounded either in experience or specialized knowledge for
arriving at the opinion he or she expresses." Supra at 24-25.
The Court comments "[t]he judicial Rule 701 screening that we
speak of for cases such as this one is not very different from
the screening that attends the ordinary expert qualification
ruling." Supra at 27. It goes so far as to commend the rule
followed in Delaware which excludes lay opinion requiring special
knowledge, skill, experience or training. Supra at 23-24 n.16.
The Court holds that "[i]n order to satisfy these
Rule 701 requirements, the trial judge should rigorously examine
the reliability of the lay opinion by ensuring that the witness
possesses sufficient special knowledge or experience which is
germane to the lay opinion offered." Supra at 25. These are not
requirements of Rule 701, but rather Rule 702. Thus, as much as
the Court protests, it has indeed stitched to the fabric of Rule
701 the language and requirements of Rule 702. This is directly
contrary to the teaching of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), which focused on
the language of the Rule 702, in issue before it.
If the Court stopped at this point, we could
simply observe that the district court made the appropriate
findings of experience and knowledge germane to the profferred
opinion, based on a lengthy colloquy with counsel and a complete
study of the deposition testimony overnight, before admitting the
testimony under Rule 701.
The Court today, however, does not stop with
incorporating the provisions of Rule 702 into Rule 701. It adds
the "sufficient rigor" requirement, which it gives plenary
review.
Indeed, the basis of the Court's decision is that
the district court made an impermissible interpretation of Rule
701 because it "failed to examine with sufficient rigor" whether
the testimony was informed by sufficient experience or
specialized knowledge. Interpretation of a rule requires a
determination of the meaning of the language of the rule. On the
contrary, failure to examine the testimony with sufficient rigor
involves a value judgment and a weighing of factors, which
inherently relate to the exercise of discretion. Failure to
examine with sufficient rigor simply does not equate to
interpretation. The rationale of the Court can find support only
from Lewis Carroll.24
Further, the sufficient rigor test creates no
legal yardstick upon which the district court's ruling can be
measured. Certainly, with respect to Rule 701 and numerous other
evidence questions, the admissibility of evidence involves a
determination of where on a spectrum the testimony falls. This
is reason for applying an abuse of discretion test to such
considerations. It is, however, the trial court's determination
of such questions to which we apply the abuse of discretion rule.
Here, the Court has simply moved the exercise of discretion from
the district court and into the hands of the appellate court.
What is sufficient rigor and what is not simply becomes a call
for the appellate court, not unlike the decision of a baseball
umpire, except there is no definition of the strike zone.
The Court finds it necessary to concede that the
district court "did summarily conclude at one point in its
analysis that Jones's 'employment experience' gave him
2
. Carroll wrote:
"When I use a word," Humpty Dumpty
said, in rather a scornful tone,
"it means just what I choose it to
mean--neither more nor less."
"The question is," said Alice,
"whether you can make words mean so
many different things."
LEWIS CARROLL, THE ANNOTATED ALICE: ALICE'S ADVENTURES IN WONDERLAND & THROUGH
THE LOOKING GLASS 269 (Clarkson N. Potter, New York 1960).
'substantial knowledge in this area,'" but that the court did not
examine "with sufficient rigor the question whether Jones
possessed the knowledge or experience necessary to offer an
opinion of such a technical nature." Supra at 31. The Court
today simply refuses to accept that the district court, with a
firm understanding of the requirements of Rule 701, made
appropriate and sufficient findings to support the admissibility
of the evidence.
The Court's rewritten Rule 701 replaces the
district court's discretion on admitting or rejecting evidence
with appellate discretion exercised under a formula with no true
objective standard and plenary review. The Court effectively
switches the roles of the trial and appellate courts.
IV.
This Court has held that a trial court's
determination of the admissibility of lay opinion testimony "may
be overturned only for clear abuse of discretion." Joy Mfg. Co.
v. Sola Basic Indus., Inc., 697 F.2d 104, 111 (3d Cir. 1982).
Weinstein's Evidence, citing numerous cases, states succinctly:
"Basically, Rule 701 is a rule of discretion." 3 JACK B. WEINSTEIN
ET AL., WEINSTEIN'S EVIDENCE ¶ 701[02], at 701-31 (1995). The
district court's careful ruling, which we have discussed above,
and the record upon which it was based compellingly demonstrate
that the court did not abuse its discretion in admitting the
testimony of Jones.
Jones testified regarding differentiations in
color at the fracture site and that the rod fatigued and broke.25
He also testified that the stop blocks were not relevant to the
accident26 because the rod eye broke off due to the way the rod
3
. ASPLUNDH'S COUNSEL: With respect to the cylinder rod
portion, the broken end, what with respect to the color of the
broken end did you observe?
JONES: Well, one was oxidized. The one that had been
broken prior or earlier on was oxidized.
ASPLUNDH'S COUNSEL: When you say "oxidized" 
JONES: It's a different color. It's duller  more
dull.
. . .
JONES: And the fresh break was simply fresh.
See App. at 162.
ASPLUNDH'S COUNSEL: Can you tell me upon what you base
the opinions you just gave on?
. . .
JONES: Well, I saw the rod removed from the eye. I
saw where it had fatigued and broke halfway through, and then I
saw where it was a fresh break. So one shows something that had
been broken for a long period of time and another one breaking
recently. And it broke at the thread, and it broke through the
place where the pin was installed.
See App. at 160-61.
4
. ASPLUNDH'S COUNSEL: Why do you say that it's your belief
that [the stop blocks] have no bearing on the case?
. . .
JONES: Okay. Because the presence of those blocks,
whether they're there or not there would not have stopped the
breaking of  off the rod eye. They're not relevant.
ASPLUNDH'S COUNSEL: Why do you say that?
. . .
end was drilled through, threaded, and, thus, weakened.27 He
concluded that this was the problem which caused the failure of
the boom. He further stated that he had not seen a cylinder
configured in this way.
Jones's observations were based upon his practical
experience. He was fleet maintenance supervisor for the City of
Portland at the time of the accident and had held this position
for over ten years, supervising between 60 and 100 employees, 6
or 7 city repair shops, and the maintenance of 1,385 pieces of
equipment, including the Asplundh aerial lift. In that job,
Jones spent 30 percent of his time overseeing the work done and
had done mechanical work himself. In a previous job, he riveted
(..continued)
JONES: Because the rod eye broke off because of the
way the end of the rod was drilled to secure a screw on the rod
eye.
See App. at 159-60.
5
. ASPLUNDH'S COUNSEL: Okay. As fleet maintenance manager for
the City of Portland, did you develop a conclusion as to why the
accident occurred?
. . .
JONES: The reason that this thing broke and Sackerson
was killed is because of the way the rod itself fatigued inside
the rod eye. First one half and then the other half went to
ultimate at the time it finally eventually broke. The reasons
are two: one, the hole through the pin caused the  yeah, the
rod to be weakened and, two, the threads on the eye itself  on
the rod itself caused a breaking point. They were sharp, and it
broke right at that point where all of those things intersected.
That was the problem. There's no doubt in my mind about it,
. . . .
App. at 160-61.
blowoff fuel tanks for military aircraft. He stated that he had
a high mechanical aptitude and understood the way things worked.
Some of the deposition transcript upon which the district court
based its ruling is significant, although not introduced into
evidence at trial. For example, Jones stated:
Well, even if you work in your own
garage, if you take a piece of
metal and put it in a vice and bend
it back and forth enough times, it
fatigues and it breaks. Anyone
who's ever dealt with anything
solid knows that. You can do it
with a paper clip, bend it until it
breaks. That's fatigue. I
certainly know what metal fatigue
is through my own knowledge and
discovery of the way life works.
Given Jones's experience, the district court did not abuse its
discretion in concluding that he was qualified to express a lay
opinion on metal fatigue.
Indeed, the district court considered the factors
the Court today requires, specifically, Jones's substantial
knowledge, employment experience, and years on the job. Any
interpretation of Rule 701 in this case springs from this Court's
own analysis, rather than the application of Rule 701 by the
district court. As the district court simply applied Rule 701 to
the profferred testimony, we must judge that determination on an
abuse of discretion basis.
The Court today simply gives insufficient weight
to the district court's articulated reasoning that his opinion
was based on his experience and that Jones had substantial
technical knowledge so as to tell whether metal is fatigued and
whether threads are shorn, which goes beyond the ken of a
layperson. The Court should not reject the articulated reasoning
of the district court so facilely.
The Court today firmly asserts that metal fatigue
is a technical concept, and that "the realm of common knowledge
[does not extend] to such issues as the presence and cause of
metal failure and the proper design of hydraulic cylinders."
Supra at 34. The Court switches the roles of the trial court and
the appellate court. The district court made abundant findings
not only on Jones's knowledge and experience, but also on the
common knowledge concerning metal fatigue. It is the appropriate
role of the district court to make such findings. Today, the
Court simply rejects these views and appropriates the factfinding
role to itself.
Perhaps the physical process of metal fatigue
requires technical knowledge, but the appearance of a metal
fracture site demonstrating fatigue failure was described by
Jones, and the district court properly concluded this was based
on his knowledge, an appropriate subject for lay opinion.
The ruling of the district court and the deference
due it must be considered in light of the evident fact that this
is a nation where many individuals grow up with extensive
mechanical experience and capabilities. Repairing household
machinery, automobiles and farm equipment is a central part of
life for many individuals, from early to late years, either
vocationally or avocationally. Fatigue failure of metal is not
unfamiliar to such persons. The testimony given by Jones
explaining his background fits squarely into this pattern as the
district judge recognized.
Textual support for Jones's opinions can be found
in 8 Am. Jur. Proof of Facts Metal Failure 127 (1960 & Supp.
1994), which states that, after a number of cycles of stress, a
small crack may form in the metal where the stress is highest
and, under continued stress, grow until the metal fractures from
overload. Id. at 129. Proof of Facts outlines the signs of
metal fatigue, including the fracture pattern on the broken
surfaces and the presence of stress raisers such as threads and
holes. Id. at 130-31. Proof of Facts describes the markings on
fracture surfaces as follows:
A fatigue fracture will often show
a characteristic pattern on the
fracture surfaces. Frequently
there will be two areas that are
markedly different in appearance.
This is because only a portion
fractured from fatigue, the
remainder failing from overload.
The fatigue portion will often be
shiny and will often contain
conchoidal or "clam shell" markings
which indicate the position of the
crack at the various stages of its
progression. The overload portion,
on the other hand, will generally
be duller and will show some
ductility or plastic deformation.
Id. at 145 (emphasis added). While Jones did not testify about
clam shell markings, he did carefully explain the differing
colors of the metal, indicating the development of the fracture,
the overstressing of the metal, and the final parting at the
fracture surface.
The text discusses the use of experts in analyzing
fatigue factors, but closes with the following observation:
While the aid of competent
professional help is important in
explaining the failure from a
scientific standpoint, the
assistance that may be given by
persons qualified by training and
experience in a particular trade or
craft should not be overlooked.
For example, a knowledge of the
properties and characteristics of
metals is essential to a blacksmith
or welder, and either may have
acquired by experience a knowledge
as to the dangerous conditions in
metals brought about by surface
irregularities, notches, tool marks
and the like. Similarly, a
mechanic experienced in working
with trailers would be qualified to
testify as to the dangers inherent
in a loose trailer hitch, and an
elevator repairman may speak
authoritatively concerning
experience in the industry with
cable failures and the standard
practice of periodically cutting
off and discarding a length of
cable to avoid failures.
Id. at 137. Jones's testimony is just such an example.
The Court's opinion, with its abundance of
scholarly reasoning, proves self-defeating. In essence, the
Court simply examines Jones's qualifications as an expert, points
to his experience and opines that Jones's experience has nothing
to do with designing or evaluating the design of machinery.
Supra at 35. However, design was not the central point of
Jones's testimony. Although Jones testified that he "had never
seen a cylinder that size configured that way," see App. at 167,
the central thrust of his testimony concerned his observations of
the fracture itself and his opinion that this caused the collapse
of the lift boom.28
The Court also points out the deficiencies of
Jones's formal education: that he had taken no courses in
metallurgy, material failure or metal fatigue, had not designed a
hydraulic cylinder, and had but one year of college education
with no studies in material compositions. Supra at 32. These
comments might bear on the qualification of Jones to give expert
opinions under Rule 702, but they do not reach the practical
6
. The Court characterizes Jones's opinion as stating that "the
fracture was caused by metal fatigue and was attributable to the
design of the rod end." Supra at 6. The Court later
characterizes the issue in the case as "whether it was
permissible for Jones to express the opinion that the rod end had
broken due to metal fatigue and that the design of the rod end
was a 'problem.'" Supra at 32. The Court then determines that
Jones was not qualified to express an opinion on whether the rod
end was defectively designed. Supra at 33-35. The Court's
characterization carries Jones's testimony beyond that which his
spoken words will support. In substance, Jones described a
fatigue fracture which occurred at the rod's weakest point, where
it was drilled through and threaded. I read Jones's testimony to
express an opinion on causation, but not on defective design.
experience and knowledge that qualify Jones to express a lay
opinion. Compare FED. R. EVID. 701 and FED. R. EVID. 702.
Rule 701 does not require technical knowledge or
expertise but, rather, requires that lay opinion be rationally
based on the witness's own perceptions, i.e. "the familiar
requirement of first-hand knowledge or observation." FED. R.
EVID. 701 advisory committee's note. Jones's opinion was based
on first-hand observation of the fractured rod. From a distance
of approximately 15 inches, he observed the differing colorations
of the metal fracture surface and saw that the rod broke in a
threaded area with a hole in it. He had ample opportunity to
observe the fracture and to form his opinion.
In Teen-Ed, Inc. v. Kimball Int'l, Inc., 620 F.2d
399, 404 (3d Cir. 1980), the Court observed that the essential
difference between lay and expert opinion evidence is that the
expert may answer hypothetical questions, whereas the lay witness
may testify only from facts perceived by him, not those "made
known to him at or before the hearing." Id.; FED. R. EVID. 703.
See also In re Merritt Logan, Inc., 901 F.2d 349, 359-60 (3d Cir.
1990). Jones was not asked hypothetical questions, he did not
express expert opinions, and his testimony was not admitted on
that basis.
When evidence is admitted under Rule 701, "cross-
examination and argument will point up the weakness," id., and
the jury will weigh the lay opinion testimony in light of any
countervailing evidence. Benton Harbor's counsel scrutinized
Jones's training and experience on cross-examination and read
excerpts to the jury which highlighted those issues. Jones's
lack of formal training should not prevent the admission of his
opinion. See United States v. Myers, 972 F.2d 1566, 1577 (11th
Cir. 1992) (admitting lay opinion testimony that a stun gun
caused burn marks based on the witness's perception of the burned
skin and 19 years of police experience; holding that the
opinion's lack of a technical/medical basis could be exposed on
cross-examination and affected the weight, not the admissibility,
of the evidence), cert. denied, 113 S. Ct. 1813 (1993); Joy Mfg.,
697 F.2d at 112 (holding that inability to state precisely why
product was inoperable did not prevent lay testimony that product
was inoperable but, rather, was "proper material for effective
cross-examination"). Based upon Jones's experience, the district
court could properly conclude that Jones was qualified to express
these opinions. Any shortcomings or weaknesses of the testimony
could have been developed on cross-examination. As the district
judge cogently observed, the issue was not one of possessing a
sheepskin, but rather of possessing common experience. Even with
flaws in reasoning, a district judge may properly conclude that
"hearing the . . . testimony and assessing its flaws was an
important part of assessing what conclusion was correct and may
certainly still believe that a jury attempting to reach an
accurate result should consider the evidence." In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994) (discussing
Daubert, 113 S. Ct. 2786, and the requirements for expert
testimony), cert. denied, 115 S. Ct. 1253 (1995).
The Court today appears to recognize and generally
to limit the application of Rule 701 to human appearance, human
conditions, and, perhaps, vehicle speed and property value. This
should not be the extent of permissible lay testimony. Jones's
testimony that metal fatigue caused the fracture and the accident
is more evocative and understandable than a long physical
description of the rod's outward appearance, although Jones
offered both. The Court quotes the following from United States
v. Yazzie, 976 F.2d 1252, 1255 (9th Cir. 1992), a case which
involved lay opinion on whether a rape victim appeared to be
fifteen or sixteen years old:
"If it is impossible or difficult
to reproduce the data observed by
the witnesses, or the facts are
difficult of explanation, or
complex, or are of a combination of
circumstances and appearances which
cannot be adequately described and
presented with the force and
clearness as they appeared to the
witness, the witness may state his
impressions and opinions based upon
what he observed."
Id. at 1255 (allowing lay opinion testimony) (quoting United
States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982)). These
general principles apply equally to Jones's testimony. See also
Eckert v. Aliquippa & S. R.R. Co., 828 F.2d 183, 185 n.5 (3d Cir.
1987) (cited with approval by the Court and allowing lay opinion
testimony as to whether an accident would have occurred had the
railroad cars involved coupled properly).
In determining the propriety of lay opinion, other
courts have considered: (1) whether the witness has personal
knowledge of the facts from which the opinion was derived; (2)
whether the opinion is rationally supported, i.e. "apparent to a
'normal person' in [the witness's] position;" and (3) whether the
opinion is helpful to the trier of fact. Soden v. Freightliner
Corp., 714 F.2d 498, 511-12 (5th Cir. 1983) (citing Lubbock Feed
Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 263 (5th
Cir. 1980)). Jones's testimony is not unlike that at issue in
Soden and meets the standards articulated by Soden.
The Court here argues that "cases like Soden
stretch the doctrinal boundaries of Rule 701 opinion testimony."
Supra at 22. The witness in Soden, Lasere, was a service manager
in charge of the maintenance of trucks, and his qualifications
closely parallel those of Jones.29 Lasere testified that a step
bracket located near the fuel tank caused holes in the tank and
that this design was dangerous. Id. at 510-11. The Fifth
Circuit stated that Lasere's opinion was one that "may have been
more properly made by one more formally an expert," id. at 512,
7
. The Court today accepts Lasere's knowledge and qualifications
but rejects those of Jones. Certainly, the fact that Lasere had
eighteen years experience and Jones ten is not sufficient basis
to distinguish the two. This only serves to illustrate that this
determination is one of degree, properly decided by the district
judge in the exercise of discretion.
but that his opinion was adequately grounded in his own
experience and observation. Likewise, Jones based his opinion of
causation on his examination of the rod, the different
coloration, and the fact that the break occurred near a drilled
hole in a threaded area. The court in Soden commented that
Lasere's testimony on causation was rationally supported and
"would have been apparent to a 'normal person' in his position."
Id. This applies equally to Jones's opinion. The court in Soden
expressed reservation only as to Lasere's testimony that the
situation was dangerous. However, this final step in Lasere's
testimony is not matched by a similar opinion of dangerousness by
Jones. Thus, rather than this case exceeding the scope of Soden,
Jones's observations and opinions are squarely supported by
Soden's reasoning.
The district court reached a different conclusion
on Jones's competence to testify as a lay witness than would this
Court. However, this should not be dispositive unless there is
an abuse of discretion.
Professor Wigmore comments that the true theory of
the opinion rule is simply to reject superfluous evidence. 7
JOHN HENRY WIGMORE, EVIDENCE § 1918, at 11 (James Chadbourn rev.
1978). Wigmore's text quotes from Cornell v. Green, 10 S. & R.
14, 16 (Pa. 1823), stating that when the facts from which the lay
witness "received an impression are too evanescent in their
nature to be recollected, or are too complicated to be separated
and distinctly narrated, his impressions from these facts become
evidence." Id. at § 1924, at 33. Wigmore concludes that:
"[w]hat is chiefly wrong is by no means the test itself, but the
illiberal and quibbling application of it." Id.
The Court states that it can find no reported case
where a lay witness testified regarding metal fatigue. However,
none of the cases cited in footnote 22 of the Court's opinion
deal with the admissibility of opinion evidence.30 Further,
Salter v. Westra, 904 F.2d 1517, 1525 (11th Cir. 1990) (cited by
the majority in footnote 22), discusses not only expert
testimony, but lay testimony of a mechanic describing the
fracture surfaces of the lug bolts with the evident corrosion and
rust streaks.31
8
. The fact that "experts have testified (and disagreed) as to
whether metal fatigue could be detected," supra at 33, is not
relevant here. None of the cases cited by the Court involving
expert opinion on metal fatigue remove such testimony from the
realm of lay opinion. See Fusco v General Motors Corp., 11 F.3d
259, 261 (1st Cir. 1993) (noting experts' disagreement on whether
fatigue or impact caused fracture); Marrocco v. General Motors
Corp., 966 F.2d 220, 225 (7th Cir. 1992) (noting experts'
agreement that loss of allegedly defective component precluded
evaluation of possible defects, including fatigue); Salter v.
Westra, 904 F.2d 1517, 1520 (11th Cir. 1990) (noting experts'
disagreement as to cause of accident where their opinions "relied
heavily upon the mechanic's description of the physical state of
the wheels and the tire hub before he repaired them"); Grover
Hill Grain Co. v. Baughman-Oster, Inc., 728 F.2d 784, 789 (6th
Cir. 1984) (noting expert testimony that metal fatigue caused
fracture). Most tellingly, these opinions each deal with issues
other than the admissibility of this evidence.
9
. See also Sullivan v. Rowan Companies, Inc., 952 F.2d 141,
145-46 (5th Cir. 1992), where the district court ruled that a
witness was not qualified to testify as an expert on metallurgy,
but allowed him to testify as a lay witness under Rule 701 on his
In distinguishing Rule 701 and Rule 702 evidence,
we should recognize that the expert with impressive credentials
comes before a jury with an aura unmatched by most lay witnesses.
We also must recognize that the jury may weigh either lay opinion
testimony or expert testimony and find it wanting. In the case
before us however, the district court, after a painstaking study
of the deposition testimony, determined that Jones's testimony
was properly admissible as lay opinion, and that the jury should
be the arbiter of its weight and value.
The district court did not abuse its discretion in
admitting Jones's testimony under Rule 701.
(..continued)
observations from microscopic examination and testing of a socket
which split in half. The court did not allow the witness to
opine whether the socket was defective or why it failed, but
commented that a contrary decision would not necessarily have
required reversal. Id. at 146.