Asplundh Manufacturing Division v. Benton Harbor Engineering

record, say that Amtrak is jury present we cannot determine to have be entitled would judgment a matter of law under (although entitled to negligence comparative parties’ negligence comparative stat- the Connecticut ultimate suc- assured of by no means he ute, entry court’s we vacate the district cess). summary judgment in favor of Amtrak and as to the critical is obscure The record consistent proceedings for further remand true last party had the question of which opinion. with this the accident. Whether clear chance to avoid last in time— Eichelberg’s negligence was is, Eichelberg could have avoid-

that whether by exercising care after injury reasonable

ed longer have avoided the could no

the train braking depends on a number by

collision — (a) factors, point in including: time Eichelberg have realized should (b) (as claims) braking; he the train was DIVI- ASPLUNDH MANUFACTURING him, taken at that long it would have how SION, a DIVISION OF ASPLUNDH complete safety by crossing to point, reach CO.; TREE EXPERT National Union (c) track;10 a reasonable the other whether Company Pittsburgh, Insurance Fire believed that the narrow person would have PA. provided a tracks safe mezzanine between retreat, long it and if so how would Asplundh Manufacturing Division and Na- (d) mezzanine; Eichelberg to reach the taken Company Fire Insurance tional Union Eichelberg to it reasonable for whether was PA, Pittsburgh, Appellants in No. 94- believe, point should have at the when he help longer the train could no realized that by braking, safely get could he (e) trestle;11 and whether Eichel- end of the ENGINEERING, BENTON HARBOR berg coiling fishing line as he was still Engineering, Benton Harbor was, trestle, and, if attempted to leave the he Appellant in No. 94-1095. reasonable under the circum- whether was 94-1095, Nos. 94-1201. factors, As to for him to do so. these stances per- insufficiently developed to the record is Appeals, United States Court as a matter of law at this mit a resolution Third Circuit. time. Argued Aug. 1994. time, Connecticut courts will undoubt- Decided June edly light complex relationship shed on the comparative negligence between the rule of now-

and the factors that inhered last At

abandoned doctrine of clear chance. however, moment, we that a sum- believe

mary judgment current cannot on the record

lie.

III. CONCLUSION

Because we conclude district application in its of Connecticut’s law

erred because, liability trespassers, evaluating by point Eichelberg of Eichel- ei- 11. In reasonableness 10. We assume that belief, berg’s we note that he almost made it. knew have known which track ther or should train; Eichelberg instead, struck head-on was not using. train was grab sideswiped protruding he was getting trestle. as he was off the handle

H91 (argued), Finarel- DiSipio A. Thomas Basil Coleman, Gray, li, Lavin, Phila- Finarelli & Div., PA, Asplundh Mfg. a Div. of delphia, for Expert Co. and Nat. Union Asplundh Tree Pittsburgh. Co. of Fire Ins. (argued), Kel- Robert G. John M. Corcoran Foster, Jr., ly, Kelly, McLaughlin & Philadel- PA, Engineering. phia, for Benton Harbor ALITO, BECKER, Circuit Before: GIBSON, Judge.* Circuit Judges, and Senior THE COURT OPINION OF BECKER, Judge. Circuit defendant, Engineer- Harbor Benton (“Benton Harbor”), ing appeals from an or- denying its motion the district court der of trial, judgment a new for also brought by against on a claim it contribution Expert (“Asplundh”) and Asplundh Tree Co. Company by Insurance National Union Fire (“National Union”), Asplundh’s Pittsburgh Asplundh and liability carrier. insurance sought to some or all Union recover National settling wrongful death suit costs their against Asplundh the estate of brought Sackerson, Jeffrey was killed when who working Asplundh lift he was aerial which * Gibson, sitting by Appeals, designation. States John R. Senior United Honorable Eighth Judge Circuit Court of Circuit

H93 (Benton having edge qualified manufac- fractured Harbor which him to offer a technical part component regarding of the aerial lift the cause of tured metal failure failed). allegedly hydraulic cylinders. which Benton Harbor’s and the While argument appeal lay principal acquire is that the dis- witness could this additional permitting Asplundh insight trict court erred either formal prac- education or testimony pursuant experience, appears adduce tical the witness at regarding simply possessed Federal Rule of Evidence 701 issue neither. Because the appear complex harmless, what to be technical issues admission of the was not concerning the cause of the metal failure. will judgment we reverse the of the district court and proceedings. remand for further contemplates admis Although Asplundh and National Union rationally per sion of based on appeal, arguing cross that the district court knowledge sonal so as to be to the failing prejudgment erred in to award inter- fact, primarily designed trier of was to allow est, not, result, we do in view of our reach express lay individuals to that are in question. this reality only a shorthand statement of fact. However, court, courts, this like other has I. History Facts and Procedural commonly interpreted permit in the rule qualified experts, pos Jeffrey operat- dividuals not Saekerson was killed while lift, sessing experience specialized knowledge ing by Asplundh, or aerial manufactured particular things, about about tech which was mounted onto a truck chassis and might thought trimming operations. nical matters that have been used tree At the time, province employed by city was to lie within the exclusive of ex Saekerson flexible, Portland, owned, perts. arguably expansive, Oregon, in operated, This terpretation appears Rule be consis maintained the aerial lift. When Sacker- Where, however, party wrongful son’s estate filed a tent with its text. death suit against insurer, proffers expressing Asplundh, Asplundh witness its Union, hydraulic cylin brought third-party National matters as the action failure, seeking indemnity ders or the cause of metal the trial contribution and Harbor, rigorous assuring Benton the manufacturer of the court must be low- cylinder containing piston Rule er satisfies the strictures of boom rod particular, proponent allegedly 701. In of techni which fractured and caused the ac- lay opinion testimony jury cident. The returned a verdict for As- cal must show that the Union, experience plundh finding Asplundh and National is based on sufficient or eighty percent responsible and Har- specialized and also show a suffi Benton twenty percent responsible. district cient connection between such or bor experience lay opinion judgment Asplundh court entered for and the such that the $185,881.60, testimony may fairly National Union in the amount of considered to be twenty “rationally perception percent based on the of the Saekerson settlement. truly by parties. “helpful” jury. witness” and Post-trial motions were filed both Asplundh sought pre- and National Union today Given the standard we articulate for interest, judgment and Benton Harbor the admission of of a evidence alleged sought a new trial based on error in nature, technical we conclude that the dis- admitting opinion testimony of Mi- ruling imper- trict court’s was based on an by chael Jones. Both motions were denied interpretation missible of Rule because appeals the district court. These followed. the court failed to examine with sufficient Jones, rigor question whether is at the witness whose issue, special- supervisor informed had maintenance sufficient been fleet knowledge. particularly, City than ten ized More order for the of Portland for more satisfy rationally helpful- years derived and time of the accident. 701, Asplundh responsibilities city equipment, ness standards covered all needed possessed including Asplundh super- that aerial lift. He demonstrate the witness sixty employ- specialized sufficient knowl- vised between and one hundred appropriateness of this questioned He ees, city repair shops, and the or seven six design, stating that before his exami- rod end pieces equipment. maintenance thing was he “had no idea that this nation accident, employ- and his Jones After the pinned, up on and then drilled and threaded aerial lift’s inspected the apart took ees never seen a point,” that since he “had City of Portland’s assembly in the boom way.” cylinder configured that Id. that size ob- During inspection, Jones shop. that saw other reiterated he “never Jones a distance of about the rod from served configured way,” and that he cylinders deposition, Jones stat- inches. In his fifteen cylinders configured how other were “kn[e]w of the lower component that a ed his differently,” production he was a con- since fractured. assembly rod end—had boom —the manager company produced trol metal rod was a threaded The rod end Moreover, hydraulic cylinders. Id. Jones casing metal screwed into a threaded area, declaring, “I in this expertise asserted A hole was drilled cylinder. called the rod cylin- hydraulic think I know how to make end, and casing and the rod through both the ders.” through the hole. pin a metal was inserted App. at 315. See Key portions deposition were of Jones’s objec- jury Benton Harbor’s read to the over opinion that the frac- expressed the Jones objec- tion. The district overruled fatigue and was was caused metal ture reading deposition testimo- tions to the the rod end. Id. attributable ny, allowing Jones to as a 161,167. Specifically, he stated that there at expressing opinion under Rule 701. Fed. Benton Harbor’s “problem” was a because argues R.Evid. 701. Benton Harbor through to be drilled design called for a hole testimony not deposition technical point where it was threaded. the rod end at a lay opinion properly type evidence Moreover, cylinder noted that the Jones under Rule 701. admissible portion of the around a rod had oxidized different, than duller color break which was plenary, since the dis Our review is this, From Jones rod’s fresh break. interpretation ruling trict court’s turns on an stages. occurred concluded that the break permit of Rule which would the admis was in a related that the break Jones also technical evidence sion of had been drilled threaded area where a hole regarding scope ease. A determination through concluded that the the rod. Jones properly admitted under a Fed of evidence eye, causing the fatigued rod inside the rod question law Rule of Evidence is a eral accident, stating stop block on subject plenary review. See DeLuca v. cylinder did not contribute lower boom rods (3d Merrell Dow Pharm. 911 F.2d to the accident.1 Furst, Cir.1990); U.S. particular, attributed the accident Jones (3d Cir.1989) (“To the extent that the district through, and way “to the rod was drilled on court’s admission of was based [evidence] eye that the rod was screwed on on the fact interpretation Rules of of the Federal App. at threaded surfaces.” threaded —two review.”). Evidence, plenary we exercise (“The 167; App. [for at 160-61 reasons one, through the hole accident] are two: Jurisprudence II. The Rule 701 and, pin ... the rod to be weakened caused two, threads ... on the rod itself caused A. They sharp, and it breaking point. were determining whether Jones’s right point all of those broke at the where testimony properly admitted the dis- things problem. intersected. That was it....”). court, scope of trict we must determine the my mind about There’s no doubt way saved his life. And there's no I have 1. Jones stated: happen Stop didn't to believe that. blocks Well, to me that all the it seems like—seemed fact, thing with a damn in the world to do came out after the after bulletins that death, dealing stop Sackerson's death. Sackerson's were App. stop at 166. blocks as if the blocks somehow would

H95 pro- Federal Rule of Evidence which Treatise Common Evidence at Law (1898) (“In vides: a sense all to mat- opinion evidence, ter of fact testifying If the witness is not as an ex- i.e. it is a pert, phenomena the witness’ in the form of conclusion formed from and men- opinions impressions.”). or inferences Is limited to tal those (a) opinions or inferences which are ration- however, Characteristically, the most elo- ally perception based on the of the witness quent criticism of this common-law restric- (b) helpful understanding to a clear lay testimony tion on Judge made the witness’ or the determina- Learned Hand: tion of a fact in issue. Every judge in the trial of Fed.R.Evid. again again causes has seen the whole represents a movement story garbled, because of insistence away historically skeptical from the courts’ form with which the witness cannot com- view of evidence. At common since, men, ply, like most he is unaware of law, qualifying experts witnesses not were the extent to which inference enters into permitted to draw conclusions which perceptions. telling He is the “facts” opinion testimony, could be characterized as only way how, in the that he knows required rather were to limit their testi nagging checking the result of him is facts, seen, mony things “they those had is, often to him altogether, choke heard, felt, smelled, tasted, or done.” Hon. indeed, usually purpose. its Richey, Proposals R. Charles To Eliminate Monahan, Prejudicial the Use the Word Central R.R. Co. v. Effect of (2d Cir.1926). “Expert” the Federal Judge Under Rules Evi Hand also stated: [of] Trials, Jury dence in Civil and Criminal is, Wigmore truth as Mr. has observed (1994) (“Mere 154 F.R.D. length, the exclusion of were considered unreliable bases for testimo beyond evidence has been carried reason ny.”). country, in ’this and that it would abe rigid This distinction between fact and large advance if courts were to admit it opinion appeals perva- led to numerous with freedom. The line between general- sive criticism commentators. See only and fact degree, is at best one of MaegaRet ly B. 3 Jack A. Weinstein & ought depend solely upon practical to con- ¶ Bergee, 701[01] Evidenoe siderations, as, Weinstein’s example, saving for of (1994) Wigmore [hereinafter Weinstein]. mentality time and the of the witness. declared, treatise, in the first edition of his (citation omitted). any that this distinction “has done more than These concerns about the restrictions on procedure litigation one rule of to reduce our lay opinion testimony, combined with a more legalized gambling.” towards a sense of 3 general liberalization in those rules of evi- § Wigmore, H. at 2563 John Evidence King (1st operated deprive dence that 1904); the fact-finder ed. see also Willard L. & Douglas Opinion evidence,2 adoption of relevant led to the of Pillinger, Evidence in (1942) (“The Advisory Rule 701. The Committee Note to Illinois American courts have the rule reflects the fact that Rule 701’s great struggle ap- had a with a rule which admissibility peared require liberalization of the of them to admit statements away of fact all evidence is rooted the modern trend and exclude inferences of the wit- quite impossible opin- ness. Such a rule is from fine distinctions between fact and of application: greater admissibility, ion all statements contain infer- and toward tem- Preliminary ences.”); pered understanding Thayer, James B. A with an that the adver- Co., (6th admissibility expert opinion testimony Railway 2. The of Union 355 F.2d Cir. 1966). was also more limited at common law and lib- With the enactment of the Federal Rules Among eralized under the Federal Rules. other of Evidence the common law restrictions on ex requirements, expert testimony was limited to pert testimony per have been liberalized and the those areas that were "not within the common missible content has been broadened. average layman.” Bridger v. (1952). Testimony, specifically, cross- more sary 5 Vand.L.Rev. process, approach to any problems: more liberal correct will examination acceptance type gained of this objective of traditional The rule retains “convenience,” which allowed for rule of an possession of fact putting the trier “ situation, of a total or renditions’ ‘shorthand of the event. reproduction accurate collective facts.” statements of [for] (a) requirement familiar is Limitation (4th 44 & n. 16 ed. MoCormiCK on Evidenoe knowledge or observation. of first-hand McCormick, 1992); Opinion Mark see also (b) in terms of re- phrased Limitation is Iowa, 19 DRAKEL.Rev. Evidence in resolving testimony to be quiring allowing for a (viewing this rule as difficulty find often issues. Witnesses facts”). rendering of the “shorthand language which is expressing themselves Saltzburg, or conclusion. While recognized by of an Professor tes not that As in cer- made concessions “excited” or “an timony person the courts have that a situations, necessity as a recurring tain and understandable gry” is more evocative opinions and con- permitting description per long physical for standard than a Stephen elusive and too proved has too A. clusions son’s outward manifestations. Saltzburg situations for unadaptable particular al, et Federal Rules of Evi (6th 1994) satisfactory judicial adminis- purposes of [hereinaf dence Manual ed. Moreover, practical impossi- example, Saltzburg]. tration. For a witness who ter determining rule what bility stag that an individual whom he saw testifies “fact,” by century litiga- way demonstrated gering lurching along was drunk question of what is a fact difficulty describing, tion of the spared the Code, pleading under the Field purposes orthopedist choreographer, precision of an walk, See, rule as- also. The gait, angle extends into evidence etc. person’s characteristics of the natural Mastberg, sumes v. 503 F.2d 465 e.g., United States (9th Cir.1974) adversary system generally will lead (permitting under Rule 701 the result, detailed ac- acceptable since the inspector of a customs Hall, nervous); more conviction than count carries appeared defendant State assertion, lawyer (S.D.1984) can be ex- (permitting po broad 353 N.W.2d display his witness to the best pected lay opinion concerning give lice officers so, state)3; do cross- advantage. If he fails to Kerry Coal defendant’s intoxicated point up argument Workers, will examination and Co. v. United Mine If, despite (3d Cir.) these consider- (allowing the weakness. of testi 967 the admission ations, made to introduce attempts are mony plaintiffs employees were “ner that meaningless which amount report assertions of afraid” as a shorthand vous and reactions), sides, choosing up than exclu- employee little more of witnesses’ observations helpfulness by denied, 823, of is called for sion for lack 102 rt. 454 U.S. S.Ct. ce (1981). 109, rule. 70 L.Ed.2d 95 advisory note committee’s Fed.R.Evid. judicial description of Perhaps the best omitted). (citations testimony type this of under Rule 701 Yazzie, v. 976 F.2d type of found in United States prototypical example of the The Cir.1992). (9th charged Yazzie was contemplated by adoption of evidence per- statutory rape under a federal statute appearance of with Rule 701 relates to permitted a of reasonable mis- identity, of con- that defense things, the manner sons or trial, minor. At duct, degrees age take as to the competency person, of a of reasonably darkness, sound, size, that he believed weight, dis- Yazzie asserted light or fifteen-and-a-half, minor, age tance, that an endless number of items statutory age support of factually apart over the sixteen. in words cannot be described contention, Ladd, Yazzie called several wit- Expert of this inferences. See Mason adopted states have Federal Rule decided under some 28 3. All state cases cited herein are analogous ¶ of evidence identical or supra, state rules change. Weinstein, See 701[03]. without entry, Rules. As of this 701 of the Federal

H97 that, testify nesses who offered to Here, as of testimony only meets incident, date of the their observations requirements (a) sub-part of of Rule caused them believe the minor to be be- 701, but of both the sub-parts alternative age tween the of twenty. sixteen and (b). of The testimony helps in the un- trial court testimony excluded this imper- derstanding of the witnesses' descriptive lay “opinion” missible and limited the wit- testimony and in determining a critical “facts,” nesses’ such as that the fact at issue—whether it was reasonable cigarettes, minor smoked wore make-up, and for Yazzie to believe that the minor was drove a Appeals reversed, car. The Court of sixteen or older. stating: us, In the jurors case before could We understand Rule 701 to mean that not themselves assess how old the minor opinions non-experts of may be admitted looked at the time of the incident: where the facts could not otherwise be trial, time of the the minor was almost adequately presented or described to the years old, seventeen and her appearance jury in way jury as to enable the undoubtedly substantially different form an intelligent reach an than had been night on the in question, a If it impossible conclusion. or difficult year Thus, and a half jurors earlier. to reproduce the data observed wholly dependent were witnesses, or the facts are difficult ex- witnesses. Yet permit- the witnesses were planation, complex, or are of a combina- ted to only to the minor’s describa- tion of appearances circumstances ble features and behavior. Their testimo- adequately cannot be described ny was no substitute for a clear and un- presented with the force and clearness as equivocal opinions. statement their It they witness, appeared to the the witness did jury not tell' the that these witnesses may impressions state his believed the minor to be at least sixteen based what he observed. It is a years old at the time of the'incident. means conveying jury what the (footnote omitted). witness has seen or heard. Id. Skeet, (quoting United States v. examples Other type quintessen- 665 983, (9th Cir.1982) (internal tial testimony include iden- quotation omitted)). marks The court con individual,4 tification of an speed of a cluded vehicle,5 of the witnesses the mental responsibility state or satisfied requirements: Rule 701’s another,6 whether healthy,7 another was 1176, thereafter), Langford, 4. United accident, v. States 802 F.2d 1178- shortly observe car but arrived (9th Cir.1986) (admitting (3d 'd, 1983). identification testi 720 F.2d 661 Cir. aff mony respect persons depicted in bank denied, photograph), surveillance cert. Lawson, 483 U.S. 299, (7th 6. United States v. 653 F.2d (1987); 107 S.Ct. 97 L.Ed.2d 740 Cir.1981), denied, cert. 454 U.S. 102 S.Ct. Allen, (4th United States 935-37 (concluding L.Ed.2d 305 Cir.1986) (same), denied, cert. 488 U.S. 109 opinion testimony by agents FBI as to defen 371, (1988); S.Ct. 102 L.Ed.2d 360 United States sanity properly despite dant’s was admitted fact Farnsworth, 1158, that, (8th v. 729 F.2d 1160-61 Cir. agents opportunity had little to view the 1984) (same); Jackson, United v. defendant); States F.2d State, 688 351, Lewisohn v. 433 A.2d 355 1121, (7th Cir.1982) (same), denied, 1125 (Me. 1981) cert. (concluding, corpus pro in habeas 1043, 1441, 460 U.S. (1983). 103 S.Ct. 75 L.Ed.2d 797 ceedings, testimony by that witness that a certain juror, prior having jury, to been selected had for preconceived petitioner notions guilty was Carlock, 535, (5th 5. United v. rationally States 806 F.2d an inference 552 based on wit Cir.1986) (recognizing perception helpful a determining "common ness’s in illustra a issue, opinion tion” of admitted). an admissible fact properly under in Rule 701 is therefore expression opinion “an by lay of a of a observer denied, speed”), 949, 950, car’s HEW, cert. 480 217, U.S. Singletary Secretary 107 v. 623 F.2d of 1611, 1613, 796, (1987); (2d S.Ct. 1980) 94 L.Ed.2d (permitting, Cir. in a reversal of a Sales, Inc., see benefits, also v. Ernst Ace disability Motor of opinion denial aof F.Supp. (E.D.Pa.1982) (admitting 1222-23 claimant's son that his father was an alcoholic opinion testimony point work); impact as to the of and 579, Jennings, unable to State v. 333 N.C. police two vehicles officer who not (recognizing did 430 S.E.2d satisfying require Rule 701 cases these property,8 and other situations value of one’s ranging arrayed along spectrum, between fact and ments are in the differences might or cumbersome from what be described as modest opinion and it is difficult blur lay opinion departures an answer from the from the core area of to elicit for the examiner above, expressed testimony, not in the described to those which will witness that generally approach expert opin the ambit of Rule 702 opinion.9 form of an See Saltz 1031-36; Weinstein, supra, good example A of the former is our supra, burg, ion. Teen-Ed, cases, important opinion it is Inc. v. Kimball Interna These ¶ 701[02]. (3d Cir.1980) tional, Inc., add, the core definitional terms of 620 F.2d 399 all meet upon personal opinion is based which we held that a from the Rule 701—the thereon, rationally plaintiffs bookkeeper and is accountant knowledge, is based proper: trier of fact. helpful to the knowledge appellant’s personal

B. acquired sheets Zeitz as Teen- balance clearly most, Ed’s accountant was sufficient un- many, if of the cases de- While qualify Rule 602 to him as a witness just der genre Rule 701 are cided under eligible testify Rule 701 to to his described, under jurisprudence expanded has opinion profits lost could be calcu- how beyond permit lay persons this core area to and to inferences that he could draw lated are not shorthand express opinions fact, perception from his of Teen-Ed’s books. long personal so statements of as basis, helpfulness knowledge, rational might The fact that Zeitz have been able particu- Rule 701 are met. standards of qualify expert as the use lar, permitted have witnesses courts accepted accounting principles in the knowledge opinion to offer tes- firsthand calculation of business losses should not they timony where have a reasonable basis— prevented testifying his on the basis grounded specialized either knowledge appellant’s of his records at the ex- arriving —for profits about how lost could be calculated pressed. trial court that A conclusion from the data contained therein. possessed sufficient the witness Id. at 403. specialized has thus often been Joy that the witness’s to Teen-Ed are our used to determine Similar Industries, Manufacturing requirements Co. v. Sola Basic satisfies (3d Inc., Cir.1982), “helpful to a clear under- 697 F.2d 110-12 be both standing Aliquippa ... of a fact in issue” and “rational- Eckert v. & Southern Railroad (3d Cir.1987). Co., 183, 185 ly perception, based” the witness’s n. 5 Joy, against an action expressed the text of Rule 701. a manufacturer for steal, conceal, proper conspiracy transport, person’s "a "the state of a health” as and resell tractor, subject[] lay opinion”). government agent of a describing the location of the tractor as "hidden" trees, Ranney, rationally v. 8. See United States 719 F.2d under some since it was based (1st 1983) (permitting perception & n. Cir. defraud of the witness and to a testify understanding testimony); ed as to the value of their clear of his United investors Kehoe, investment); (7th Sweeney, 643-44 States v. 688 F.2d 1145-46 Neff Cir.1982) (11th Cir.1983) (reversing, alleging (concluding action in an that a PCP and metham- collection, drug misrepresentations phetamine identity in sale of coin user could as to plaintif&'buyer, drugs prior based on use and knowl- the exclusion of said his (cid:127) substance, give lay opin edge, sampling competent who was determined and the coins, testimony drug ion to the value of the even conclusion that the affected him in the as before); Heart, testimony self-serving though No such was and un same manner as it had State v. 43, (S.D.1984) evidence); supported by Massey, (holding v. 48 that a other Garis N.W.2d 109, 646, injuries (App.1980) police opinion 270 Ark. 606 S.W.2d officer’s that victim's were testify by by something sharper (allowing property to as a fist owner of similar caused not admitted, issue). properly given property that distinction be- to value of in was by and a wound tween a wound caused a fist McCullah, 350, object by sharper 9. v. 745 F.2d caused a was within realm of United States (6th Cir.1984) prosecution average person's experience). (permitting, in a for

H99 adoption testimony contemplated the of two the of resulting from failure damages 701).10 furnaces, an Rule held it was treating we that heat court for the district of discretion abuse C. supervisor testimony plaintiffs of exclude the percent- concerning the however, control production lay of that some recognize, We resulting hearth from age plaintiffs losses begun of to move even fur- cases question in that the witness problems. beyond opin- Given the core area of Rule 701 ther plain- knowledge of personal begun, had in a subtle extensive ion and have in we question, lay express the furnaces plants gradation, permit and witnesses to tiffs opinion was ra- witness’s that the their areas which would concluded only and personal ordinarily expected expert his that tionally based on precisely give inability to Rule 702 could such qualified witness’s state under that the particular testimony, product design a inoperable at as whether why a was a furnace (e.g., or whether certain factors material for cross-examina- was defective proper time was defect) inadmissibility. product a caused an accident. for than a basis tion rather Freightliner example, in Soden v. For Eckert, a railroad brakeman sued a (5th Cir.1983), 498, 510-12 Corp., 714 F.2d Liability Act Employers under Federal permitted laya the Fifth Circuit witness (SAA) injuries Act for Safety Appliance and danger opine that of a truck was riding locomotive he was when the suffered product liability action and a ous defective both another locomotive and on collided involving post-collision truck fire. The a couple. In con- upon failing to ears derailed that plaintiffs in this action claimed the de improperly court had cluding that the district Freightliner system fuel was sign of a truck’s case, we inapplicable to the SAA held the post- unreasonably dangerous and caused a tes- plaintiff, who had offered noted that the plaintiffs’ fire which killed dece collision fuel establishing SAA viola- timony relevant plain The “thrust” of dent. Id. 500. tions, testify by virtue of qualified to Freightliner’s argument was that tiffs’ familiarity with thirty years experience and tanks, sides were mounted on the fuel injuries procedures as to whether railroad doors, under the cab were dan of the truck prop- had the cars been occurred would have explained: As the court gerous. Soden cases also erly coupled. A number of other (that they plaintiffs] ar- is, particular,, [the also represent category they fit into steps securing gued the brackets lay opinion that core expansion from the a modest 517, Ranch, Inc., 486, See, 641 P.2d 522-23 Corp. 97 N.M. Sys., e.g., Inc. v. Olivetti State Office America, (10th Cir.1985) (concluding, personal injury ac- (App.1982) in a 845-46 of rink, skating as to lost (permitting admission of arising a fall at a roller tion from president/treasur company’s profits future from properly admitted that trial opera personal company’s of witnesses, er with experienced ska- who 'were of two Johnson, tions, sales, profits); State v. accident, regard- night present ters (hold (1986) 1256-57 719 P.2d Mont. ing on ing safety procedures used the defendant that, driving prosecution for under in a State, accident); P.2d night Lee v. alcohol, properly police officer was a influence (conclud- (Okla.Crim.App.1983) 1354-55 the basis as a on allowed investigating police testi- ing officer could that an generally happens experience as to what his own blood, carpet that a fy spots were on fails, steering power where he to a when its car matters, chemist, testifying offer on other could over ten of all had worked on vehicles kinds glass type at a lay opinion found steering experienced power years failure had safety glass); Williamson location was murder times); Seed Schmidt v. J.C. several Robinson (hold- O’Neill, (Tex.Ct.App.1985) S.W.2d Co., 370 N.W.2d 220 Neb. rig, co- ing driver of a tractor-trailer admitted, properly (holding the trial court arising injury personal lawsuit in a defendant against buyer of contract action a breach accident, uniquely quali- from-an auto-truck fied, com, testimony by plaintiffiseed seed grower's rig experienced driver of the involved as the concerning of shat- witnesses effect accident, to offer a in the opinions, crop, where on the seed tercane tractor, separated trailer from reason the determining the fact in which were rationally based would be since his issue, perceptions rationally stem based on were perceptions the accident his firsthand per ming field observation extensive causation). help would determine farming experience); v. Skate Hansen sonal which, pointed to these fuel tanks had ends move from his observation of holes in rollover, puncture Freightliner in could the event of fuel tanks at the location of brackets, resulting step the presumably the fuel tanks. The hole or holes caused by them, engine opinion release diesel fuel near com- to his that the situation could fuel, ignite dangerous.... was ponents enough hot caus- Lasere’s respect ing engine-cab dangerousness area. with a fire in the of the obvious, step given brackets was also Id. modification which he testified he made to witness, Lasere, lay was a The contested them after all he had seen. manager supervised preven- service who added, however, Id. at 512. The court tive maintenance of about 500 trucks and was point Lasere’s daily on this “did consti- charge in of the maintenance of about opinion trucks, might tute an sixty Freightliners, have been better mostly including given by formally expert.” one more Id. the truck involved in the accident. Id. at subsequently And the court charge removing in reiterated that 510. Lasere also was “although opinion respect Lasere’s truck from the scene of the accident and ‘dangerousness’ may proper- have been more damage to observed firsthand the the fuel ly trial, by formally made expert, one more plain- tank. Id. At he testified for the given case, particular regarding tiffs the cause of the accident and we facts of conclude that no reversible error in dangerousness design; specifically, of the occurred (emphasis supplied). its admission.” Id. step punc- Lasere testified that brackets had par- tured fuel tank. at 510-11. Id. view, In our cases like Soden stretch ticular, hand, he stated that in the case at the doctrinal opinion boundaries of Rule 701 Freightliner in two or three other acci- testimony.11 However, agree we with the dents, “puncture he had observed holes Fifth Circuit that such does fall step the fuel tanks at the location of the within requirement the ambit of Rule 701’s gave brackets.” at 510. He then lay that a opinion rationally witness’s step that the brackets were the cause based on firsthand observations and puncture holes. After Soden’s acci- determining Though a fact in issue. we dent, Lasere testified that he had modified agree with Benton Harbor that the admission step remaining Freight- brackets evidence in these technical by “sawing pointed liners his fleet off [the] (e.g., concerning areas the existence vel non ends;” expressed and he product of a defect or whether an accident original design “dangerous.” bracket’s condition) by was caused a certain can result Id. at 511. in an expert opinion attenuated form of evi Sustaining the opin- of Lasere’s admission considerations, dence far removed from the testimony, ion the Fifth Circuit stated: II.A, supra animating described in Part great leap logic expertise lay rule,12 No it is not for us to rewrite necessary position reinterpret one Lasere’s rule Rule 701 across the example, Myers, ing 11. For in United States v. qualifying or education” of a witness under (11th Cir.1992), denied, — cert. example, Rule 702. For in United States v. -, U.S. 113 S.Ct. 123 L.Ed.2d Paiva, (1st Cir.1989), 155-57 (1993), lay opinion testimony that burn marks lay where a witness who had used and tasted gun were caused a stun was held admissible many cocaine on occasions testified that a sub- personal perception based on the witness' cocaine, stance tasted like the First Circuit af- years burned skin and nineteen firmed the admission of the evidence the trial police opin force. The court noted that the court, rejecting argument lay that a ion's lack of basis could be technical/medical only quali- cannot to such matters because exposed on cross-examination and affected the experts give testimony. fied can While the weight, admissibility, not the of the evidence. holding appears unexceptionable, the court un- necessarily any declared that Rule 701 "blurred particular, problematic we find the views rigid may distinction that have existed between” appear permit of some courts which would expert testimony. Id. at 157. More firsthand of a witness in these and might refinement entirely have been in order. other technical areas to diminish the skill, "knowledge, experience, need for the train-

1201 (“Individual Paiva, hold, at 157 892 F.2d as es. See to Accordingly, we refuse board.13 lay a witness of experience and lay wit- that all requests, Harbor Benton competence, or without may his her require special establish that offering opinions nesses express opin expert, to an qualification as an qualify under must experience knowledge or subject outside realm particular ion on a 702.14 Rule knowledge.”). of common However, admissibility opin of sum, lay opinion for as to techni Rule 701 of the strictures under

ion evidence or product defect causa matters such as requirement cal 701’s limit. Rule without is not admissible, a it must derive from tion be “rationally based opinion that as to be rehable sufficiently qualified more source demands witness” perception jury. order hence and perceived some have that the witness than requirements, the trial satisfy Rule 701 these firsthand; rather, requires thing rigorously examine the reliabili judge should truly rational provide a perception witness’s by ensuring that lay opinion ty of the Similarly, the opinion. or her for his basis special knowl possesses witness sufficient opinion be requirement second —that germane to which is edge or understanding the wit of clear “helpful to a not, does lay decision opinion a offered. Our of testimony determination or the ness’s dissent, appli “limit the suggested by the as than that more in issue” —demands fact appearance, to human of Rule 701 in the cation bearing on the issues a have conditions, and, perhaps, vehicle human an case; “helpful,” to be order value,” words, dissent speed property and In other reasonably reliable. must be infra lay opinion as an does it eliminate nor lay opinion witness requires that Rather, matters. jury in technical aid to the grounded either a reasonable basis have stated, with first witness ar as we have knowledge for specialized or an akin knowledge can offer express- hand or she opinion that he riving at the (1) readily, and with cannot prohibition The witness unwillingness to find a strict This 13. adequacy, testimony equal accuracy matters communicate lay opinion in technical and on motivated, inability part, by our in no small perceived the trier of fact what he has prior testimony caselaw designate the involved testifying in terms of inferences or without province of ex properly within the exclusive as perts. opin- or opinions, his use of inferences cases, Indeed, noted courts have in some trier of fact to the ions will mislead lay opinion giving objecting party; and prejudice of the See, e.g., expert. qualified might Teen-Ed, as an have do not re- opinions and inferences (accountant gave who 620 F.2d at 403 skill, experience knowledge, quire special or qualified testimony might as lay opinion have training. Enters., Inc. v. Sher expert); see also Williams (empha- of Evidence Del Uniform Rules Co., 233-34 man R. Smoot added). lay opinion on Similar sis restrictions broker, (insurance might (D.C.Cir.1991) who adopted Florida in both have been expert, properly was qualified as been collapse Tennessee. See testify that construction permitted to Code Fla.Stat.Ann.Evidence 90.701; may § to a substantial 701. at issue have contributed R.Evid Tenn premiums); plaintiff's commending insurance liberty in the this issue increase of We take the Fleishman, United States Advi- Conference of Judicial to the attention Cir.) (whether (9th Evidence, sory which on Committee Rules permissible for an under expert opinion, it was jurispru- developments in evidence monitors acting agent a defendant cover & Aviva generally R. Becker See Edward dence. denied, lookout), U.S. cert. Orenstein, Rules Evidence The Federal After (1982). 464, 74 L.Ed.2d 614 S.Ct. Meaning” "Plain Ju- Sixteen Years—The Effect Advisory Committee risprudence, the Need however, believe, such distinctions for We 14. Evidence, Suggestions the Rules by the drafters of might well be made can Rules, that, Rules, Geo. discussion Selective Revisions as our the Federal (1992). As the authors suggests, a better formulation Wash.L.Rev. observed, adaptations matters from perhaps these eliminate in their rule would state modifications approach has Such an of Rule 701. the ambit quite instructive in can be the Federal Rules states, including Dela- adopted by some been problems in the providing identified "solutions to ware, provides: implementation drafting Federal expert, testifying as an a witness is not If Id. at 862 n. Rules.” may perceived be in testimony about what he opinion, when: of inference the form cases, expert testimony long opinion in most so as cal necessary which he lacks the judge the trial determines that the witness knowledge make, experience and to runs possesses specialized sufficient and relevant requirements afoul of the 701. It is knowledge opinion. to or offer the clear, therefore, that in appropriate circum- proffered stances trial court should exclude importance precepts The of these is evidence, otherwise admissible as relevant reinforced the recent decision in Daubert 401, under grounds Fed R.Evid. that the — Pharmaceuticals, Inc., v. Merrell Dow witness’s consequent and the ba- U.S. -, 2786, S.Ct. L.Ed.2d 469 perception sis for his or her rational are (1993). Daubert, course, deals with the insufficient under the rule. testimony evaluation of the scientific of an expert focusing upon reliability the of the judicial screening Rule 701 method on

scientific which the conclusions of The expert we speak are based. But one of of for cases such the “Dau- as this one is not bert factors” expert’s knowledge very is the and different from screening that at qualifications, centerpiece and the ordinary expert qualification tends the rul regime gatekeeping Daubert is the role of Paoli, ing. See 35 F.3d at 740-46. In deter judge, duty the trial whose it is to screen mining laya whether witness has sufficient challenged expert testimony and assure that special knowledge or to ensure sufficiently it is reliable to be of assistance to lay opinion rationally derived from Id., jury. 2794-95; 113 S.Ct. at In re the witness’s observation and to the Litig., Paoli R.R. Yard PCB 748 jury, the trial court should focus on the sub (3d Cir.1994) (“Daubert makes clear for the background stance of the witness’s and its Supreme first time at the Court level that germaneness to Though the issue at hand. play gatekeeping courts have to with role particular training educational is of course regard experts.”). While we are careful necessary, require court should suggest applies not to that Daubert to Rule proponent of testimony to show some spirit we believe that its also counsels connection special knowledge between the judges carefully trial screening exercise a witness, experience of the acquired, however respect function with opinion opinion the witness’s regarding the dis lay opinion when the offered close puted factual issues in the case. ly expert resembles testimony.15 lay opinion testimony held to be ad Though acknowledge we impor prior missible in our Rule 701 decisions satis lay tant opinion differences between evidence Teen-Ed, fied this standard. Inc. v. Kim expert exist, justifying a International, Inc., ball 620 F.2d at greater scrutiny level of expert of Rule 702 lay accountant who testified as a witness had evidence,16 opinion we do not believe such very particular quite prior extensive ex effectively differences vitiate the need for perience books, judicial with Teen-Ed’s which al gatekeeping some part on the judge properly trial lowed him to lay opinion calculate for case of the court testimo ny of a Allowing witness, technical nature. how profits lost should be determined and to knowledge, first-hand to offer a techni- draw inferences from his examination of the 15. The (1) dissent’s assertion that our decision "is following: Such differences include the designation opinion directly contrary "expert” teaching of an of Daubert may jury give cause the the "witness language which focused on the of Rule 702” is more attention and credence” then an simply inaccurate. Our conclusion that the trial "lay person” admitted from under Rule judge rigorously reliability should examine the 544; Richey, supra, 154 F.R.D. at opinion, by ensuring pos- that the witness of a witness must be based on his or special knowledge experi- sessed sufficient ence, personal perception, her firsthand while an ex- stated, ultimately, derives as we have pert may opine response hypothetical ques- explicit requirements of Rule tions, Teen-Ed, ("The see 620 F.2d at 404 essen- "rationally dictate that the based” 702], tial difference [between Rule 701 and how- "helpful” witness’s ever, observations and qualified expert may hypo- is that a answer jury. questions.”). thetical Application III. Rule 701 to Joy Manu And Id. at 403. accounts.17 Inc., Industries, Testimony Opinion Jones’s Basic facturing Co. v. Sola had exten F.2d at question recapitulate, To plain Joy’s [the personal sive accident had here treating pro on-going its heat plants, tiffs] fatigue piston from metal inside a resulted question,” cesses, the two furnaces faulty design he attributed to the rod which person “sufficient that he had and we stated end. The district of Benton Harbor’s rod facility Joy’s treating knowledge heat al of not limit Jones’s to de- court did amount of down of what make an estimate scribing of the metal inside the rod- the state Id, at problems.” due to the hearth time was Rather, it broken. end and the fact that had 111-12. lay opinion as to to offer a it allowed Jones Inc., Moreover, Logan, in In re Merritt Specifically, Jones the cause of the break. (3d Cir.1990), an action the 901 F.2d 349 “problem” that there was a because stated refrigera- allegedly defective purchaser of an design called for a hole to Benton Harbor’s installer, seller, system against the tion through point rod end at a be drilled the system, principal the the manufacturer of App. at 161 & 167. where it was threaded. (Logan) per- was plaintiff shareholder district court admitted Jones’s The lay witness as a express mitted it since it concluded pursuant to Rule profits. In company’s lost concerning his of common sense.” within “the ambit was Gilchrist, witness, addition, had who another refrigeration surveyed the site where that the district court Asplundh contends installa- prior to its system was to be located opinion since the properly admitted Jones’s weekly an estimate tion and had made requirements in opinion satisfies Rule 701’s site, at that could be achieved sales that rationally based on Jones’s first- that it was survey. testify concerning his permitted to of the fractured rod hand observations lay of these the admission We held a fact in issue. to a determination of helpful 701, stating: proper under opinions was satisfied agree Jones’s We knowledge of his busi- Logan’s personal “Mr. requirement of firsthand knowl- Rule 701’s personal ness and Gilchrist’s (1) lift edge he saw the disassembled since: survey were sufficient prepared his how he from a distance shortly after accident eligible under Rule these witnesses to make (2) inches; he observed approximately fifteen profits could be testify as to how lost 701 to surface; fracture of the metal the colorations Id. at 360.18 calculated.” in threaded the break he saw through been drilled where a hole had area proponent of the need for Mindful opin- agree not that his rod. But we do testimony to show that lay opinion technical rationally on these observa- based ion was knowledge or possesses sufficient jury’s determination or lay opin- tions germane to the experience which is proffering because offered, a fact issue the facts of this case. we turn to ion Moreover, included in should have been "what believed in which the he Teen-Ed is a case 17. offering qualified private and as have under Rule memoranda witness would one of the expert testifying precluded as an be- complied with whether the memorandum required in a him as Teen-Ed failed to list cause requirements." Id. at applicable disclosure ("We pre-trial interpret the pre-trial order. witness, partner a of one of We noted required ruling identification in this case to principal a law defendants and individual 703, but expert Rules 702 and witnesses under defendant, sufficient knowl- had firm named as 701.”). under Rule witnesses lawyer specializing in experience "a edge as gen- litigation, acted as ha[d] who also business Eisenberg Gagnon, F.2d 770 18. See also banks, trucking companies and eral counsel for (3d Cir.) (involving action where a securities Id.; ("Although brokerage id. see also houses.” offering memoranda plaintiffs claimed that cases, represented in securities clients he had partnerships were false and limited for certain misleading), 342, with the disclo- that he was familiar and testified denied, 106 S.Ct. 474 U.S. cert. requirements and state securities of federal sure laws, (1985). Eisenberg, we L.Ed.2d 290 expert view himself he did not permit attorney properly had been held that an memoranda.”). offering preparation of respect witness with ted to as a testimony, Asplundh satisfy failed to in manufacturing hydraulic cylinder. ed today articulate standard we for Although eight he worked some seven or evidence. production months as a manager control for company hydraulic cylinders which used particular, we conclude that the product, position their in that respon- he was applied legal district court an incorrect stan only initiating sible manufacture and had dard under Rule 701 to the extent that design responsibilities no notwithstanding his require Asplundh failed to to show sufficient assertion, bold “I think I know how to make and a sufficient con hydraulic cylinders.” App. at 168. special knowledge nection between Jones’s opinion regarding and his question presented we are cause of the accident and the permissible whether it was for Jones to hydraulic cylinder.19 While the district court express the rod end had summarily did point conclude at in one its fatigue broken due to metal and that analysis “employment experi that Jones’s design “problem.” of the rod end a App. gave ence” knowledge him “substantial in (“The at 160-61 area,” [for reasons the accident] this we do not believe it examined with one, are two: through pin the hole rigor question sufficient whether Jones possessed and, two, ... knowledge caused the rod to be experience or weakened nec essary to offer an the threads ... on of such a the rod itself technical caused the breaking point. nature. They sharp, were and it right point broke at the where all of those Jones supervi- was the fleet maintenance things intersected. problem. That was the city sor for the of Portland for more than ten it_”). my There’s no doubt in mind about years, supervising the maintenance of 1385 our view these are not ones that variegated pieces equipment and six or average lay person equipped would be repair shops. seven present Jones was when draw, specialized absent sufficient the aerial lift was disassembled and observed experience. or disagree We with the dis- damage Asplundh to the rod. suggests sent’s assertion “[fjatigue failure of met- that, Soden, as in opin- the conclusions and al is not persons unfamiliar” to “such” as expressed by ions Jones were those that a Jones, page 1212, dissent at simply position normal in infra individual with his do not average lay person, believe that the Soden, would have drawn. See absent sufficient knowledge or 714 F.2d at 512. But Benton Harbor’s re- metals, qualified is meaningful to offer a sponse telling. points is It out that Jones questions fatigue of metal of education; lacked formal had not taken nature. fatigue Metal concept. technical failures, courses in metallurgy, material or many There are reported fatigue; metal eases designed and had hy- (and experts cylinder. disagreed) draulic year He testified as to college had one plus job-related fatigue studies whether metal other could be courses. detected Moreover, post-accident examination,20 Jones had based on a any never conducted studies of materials or we compositions. single reported material have not found a case having Besides designed hydraulic never which a given testimony. witness has such cylinder, personally he had never participat- The experts consistent use of re- See, 19. The dissent e.g., contends that the district court Corp., Fusco v. General Motors apply legal did a correct standard under Rule (1st Cir.1993); Marrocco v. Gener 701 and would therefore review the district (7th Corp., al Motors 966 F.2d Cir. court’s decision to admit Jones’s for that we 1992); Westra, Salter v. 904 F.2d disagree, given abuse of discretion. We (11th Cir.1990); Baugh Grover Hill Grain Co. v. conclude that the district court violated the “ra- man-Oster, Inc., (6th Cir. tionally "helpfulness” derived” and standards of 1984); Southwire Corp., Co. v. Beloit Eastern failing to examine with sufficient (E.D.Pa.1974). F.Supp. 842 rigor question possessed of whether Jones appropriate experience to offer an opinion regarding the cause of metal failure and proper design hydraulic cylinders. appears practical experience, it Jones sim- the tech- questions underscores garding ply possessed neither.21 opinion. Jones’s nical nature of fleet experience as Portland’s Jones’s describing this within up- supervisor, supervising the maintenance sense,” the district common “ambit of pieces equipment six or keep of 1385 testimony as characterize Jones’s would shops, inapplicable. repair While seven you “if to the observation equivalent responsibilities, they do weighty are these in a vice and put piece of metal take a design- anything to do with not seem to have times, enough it fa- it forth bend back and machinery. evaluating design ing or agrees. dissent tigues and breaks.” example, supervi- By way the maintenance far more technical opinion was But Jones’s hardly be for a fleet of rental cars sor would and, particular, attributed accident express on whether qualified had Harbor which Benton the manner in braking system particular of a model was App. end. the rod See design chosen to special defectively designed, some absent (Jones the accident attributed 167-68 Moreover, proffer. as fleet main- qualifying through, and “rod was drilled fact that the supervisor, tenance Jones was involved on a eye screwed on that the rod the fact of numerous supervising the maintenance surfaces,” ques- threaded threaded —two special expe- types equipment and had no how to “kn[e]w since he tioned this hydraulic cylin- metal failure or rience with never cylinders” and he “had hydraulic make Likewise, employment prior ders. configured cylinder that size seen manager production control experience as a way”). pertinent, he had no seem since does not Equally inapplicable design responsibilities. average lay person— the While job riveter in the previous as a is Jones’s seeing that and the rod end examining after mili- tanks for of blowoff fuel manufacture spot the rod end in a where it had broken repaired his tary the fact that he aircraft and drilled a hole had been was threaded ap- App. at 181. Neither own automobile. un might properly conclude through well it— experi- knowledge or Jones’s pear to enhance at had the rod end broken der Rule 701 that fatigue or opinion on metal ence to offer such a point, its weakest appeared to be what hydraulic cylinders. design the go reasonably further could person of Jones’s support of the admission defectively that the rod end conclude Asplundh principal- testimony, relies The dissent contends point. at this weak Soden, opinion in ly on the Fifth Circuit’s testimony was admissibility of this that stated, which, supra, as we discussed many a nation “this is where proper since satisfy we articu- likely the standard would up extensive mechani grow with individuals acknowledge that today. we late While in capabilities.” Dissent experience and cal similarity testimony bears certain simply do not We pages at 1211-1212. fra design of opinion regarding to Lasere’s knowledge of common that realm believe tanks, believe Jones fuel we Freightliner presence and as the to such issues extends experience which unique simply lacked design proper and the cause of metal failure Soden, Lasere, in to allowed witness require hydraulic Given the cylinders. lay opinion. his properly offer 701, Asplundh to dem needed of Rule ments expe that the testi- Fifth concluded possessed relevant Circuit onstrate that Jones under properly admitted knowledge germane mony Lasere was specialized or rience eigh- had grounds he rationally that satisfy the opinion in order to his main- experience repair in years of of the teen helpfulness standards derived involved particular trucks of the may tenance acquire rule. While and, actual- he had importantly, by accident formal education insight either additional fatigue. evidence assessing some asserts, metal Absent page that 21. The dissent infra knowledge, Jones's or of such so as technical "Jones had substantial since it could under fatigued” was inadmissible fails metal is then to tell whether rationally observations derived from his not be point any which would demonstrate evidence jury. “helpful" to the experience in any that Jones had tracks, ly Rather, experience. modified these which were under suggests that it is care, prevent alleged his so enough defect that Jones observed the rod end design rapturing firsthand, in the track’s that testimony helped his freightliner’s jury fuel tank future accidents. to determine the cause of the lift’s actually previous Lasere examined occa- failure played and the role in it the rod Freightliners sions an unknown number Harbor, manufactured Benton and that had been involved serious subject accidents Jones was to cross-examination. We (presumably, light job, disagree. stated, of the nature of his As we have under Rule 701 number), great not a two or three of judge the trial play must gatekeeping some those cases he had pro- observed facts that role so rationally as to ensure that the de- inferring vided a reasonable basis for helpfulness rived and requirements of the design step brackets had caused rule are met. tanks, holes in one of the fuel were simple yet To use a example, illustrative if Moreover, engine. located near the he had an issue in a case was whether the sun simple (sawing point- devised a means off the earth, revolved around the propo- and the ends) by step ed might which the brackets system nents of the proposed Ptolemaic made safer. prove by lay opinion their case testimony, importantly, More opinion, Lasere’s re satisfy Asplundh’s could re- garding dangerousness of quirement (“Ihave of “firsthand” observation Freightliner, rationally derived from observed the sun many years, firsthand for particular experience Freightlin- and I day have seen that each it moves ers’ fuel tanks.22 This allowed sky west.”). across the from the east to the Fifth Circuit to conclude that Lasere had Such would also be “very practical experience considerable and jury to the extent it would tend to Soden, specialized knowledge.” 714 F.2d at suggest a jury result that the should reach. unique experience, Given his the court And such subjected could be was able to conclude that his conclusion that by proponent cross-examination of the Co- design step the of the brackets danger perniean system. But it does not follow that required great leap logic ous “no exper lay opinion this testimony meets the rational tise.” Id. at 512. helpfulness requirements basis or they are contemplated by Rule 701 or that it would be agree While we with the dissent that the nothing admissible. Yet in the district went, sense, admitted in Soden in a analysis court’s would have excluded such beyond that offered by Jones since Lasere testimony. design Freightliner’s characterized the of the believe,

fuel “dangerous,” tanks as given we IV. unique knowledge Lasere’s Conclusion tanks, with the tracks fuel qualified he was to We are convinced that the court’s contrast, draw such an opinion. Jones admission of Jones’s testimony was simply lacked resembling anything Lasere’s represents harmless and therefore re specialized knowledge experience. par- error, versible since we cannot conclude that ticular, Jones had never before taken these highly probable “it is that the error did not cylinders apart in association with similar judgment.” contribute to the Advanced Moreover, Lasere, accidents. unlike Jones Med. Inc. v. Sys., Arden Med. had never any steps modify taken to what he (3d Cir.1992). explained, As we have the perceived faulty to be design the of the rod district admitting court erred in Jones’s testi end. mony under failing apply Rule 701 to its Asplundh respond does not problem analysis rigor required with the type in this specialized Jones’s lack of knowledge and of case. particularly, More the district court noted, 22. As Lasere’s bases for his were: design inference tendency this had a to (1) design the pointed step featured punctures brackets cause dents; tanks in the roll-over acci- resting tanks; (2) on (4) the fuel the fuel tanks were simple the fact that he found a (3) near engine; the cab and way the design the reasonable to make safer. interpretation of involved opinion evidence Jones’s knowl- whether to determine needed given and, accordingly, should an Rule to offer him qualified edge or authority relied The plenary review. met- the accident to attributed opinion which weight which simply not bear does allegedly improper failure and al it. cylinder. places on Court hydraulic Harbor’s of Benton in the record is no indication There Dow Pharmaceuti v. Merrell In DeLuca knowledge or ex- possessed sufficient Jones (3d Cir.1990), this Inc., cals, F.2d 941 satisfy the to Asplundh to allow perience “cursory” court’s held that district Court today and obtain admis- articulated standard testimony erroneous excluding expert ruling Nevertheless, we opinion. of Jones’s sion re Rules two the Federal ly interpreted allow the district the case to will remand (1) expert’s analyzed court spects: determine, light opinion, of our court than Rule rather qualifications under proceedings further permit whether implic 953; court id. at Rule In the absence opinion. qualify Jones’s study’s accept a itly required expert establishment or the proceedings such underlying utilize the in order conclusion court district should qualification, testimony, although Rule a basis data as trial. order new Id. at requirement. no such 703 contains its district judgment The depended on the admissibility 954. Because trial will for a new motion denying the order interpretation of Rule judge’s district fur- remanded for the case be reversed of re plenary standard applied a the Court opinion. with proceedings consistent ther ease for view, and remanded the id. at testi proffered consideration further Judge, GIBSON, Circuit R. Senior JOHN tellingly, the Most mony. Id. 956-57. dissenting. ruling remand Court instructed respectfully dissent. I “sensitivity the relevant display should Federal judgments policy reflected analyzes today painstakingly The Court strong Evidence,” “embody a Rules of and its intended history any admitting preference for and undeniable evi- regarding opinion rules relaxation assisting potential for having some evidence develops a “core then The Court dence. the risk dealing and for of fact the trier testimony and area” of adversary process.” through the of error admissibility of unduly limits so, at 956. In order to do that core area. outside of language 701 the imposes on Rule the Court States on United also relies Court that a 702 demon- requirements of Rule and (3d Cir.1989), de cert. Furst, F.2d 886 558 expe- knowledge and the witness’s stration of 878, 1062, 107 nied, 110 S.Ct. 493 U.S. thus abro- opinion, and support rience there (1990), held that which 961 L.Ed.2d and distinction between gates the the admission foundation was insufficient opinion evidence. of technical in the area 702 Furst, 572. Id. at records. of business that the district then determines The Court to rule the Court articulated the Court rigor” in deter- use “sufficient not court did 571, further but did not espouses, id. at day question mining “whether used, only stating standard which indicate spe- experience or by sufficient was informed admitting erred” that “the district court 1193, uti- at knowledge,” swpra cialized Id. at the evidence. discretionary rule under essentially an lizes however, view, DeLuca my both significantly, plenary review. Most guise of Elec Japanese upon In re applied rely properly court Furst district Litigation, admitting the Products Antitrust its discretion did not abuse tronic (3d Cir.1983), on other rev’d evidence. In nom., Electric Matsushita grounds sub I. 475 U.S. Corp., Radio v.Co. Zenith dustrial (1986). L.Ed.2d 538 S.Ct. that the district Today argues the Court case, held: In that Court admissibility of Jones’s judge’s ruling on scope depends The of our review ... on support application cases cannot of the rule the basis for the ruling. plenary [trial court’s] review in this case. 104(a) When the trial court makes Rule Nothing in the record indicates that findings of historical fact ... we review judge engaged district interpretative anal- clearly erroneous standard of Fed. ysis meaning Rather, of the of Rule 701. [by R.Civ.P. 52. But a determination judge carefully district analyzed Jones’s de- court], predicated trial if on proper- factors position testimony and found it admissible ly determination, extraneous to applying analysis the Rule. quintes- His

would be an error of law. There is no sentially an exercise of discretion which rely improper discretion to on factors.... should only be reviewed for abuse and be In weighing factors which we consider given substantial deference. The Court to- proper, the trial court exercises discretion day pays no heed to the district court’s thor- and we review for abuse of discretion. ough ruling detailed admissibility on the testimony, simply casts that at 265-66. proceeded apply Court ruling aside on the basis of this Court’s own critically all three standards. Most relevant analysis. purposes, for our the Court held that developing district erred in its own

standards and in acting as the ultimate arbi II. reliability ter of the materials A close look at the record reveals that the expert which the opinion. his based See judge district great exercised care in ruling Zenith Radio Corp. v. Matsushita Elec. In admissibility of this evidence. After Co., (E.D.Pa. F.Supp. dus. 1321-30 reading portion deposition dining 1981),rev’d, Prods., Japanese In re Elec. objections, consideration of the the district F.2d 238. This Court held the district judge remarked: approach court’s legal be “fundamental you Just because sheep- [sic] don’t have a because, law, error as a matter of the district skin doesn’t expert. mean is not he It court must make a inquiry factual and find seems to me he has substantial ing as to what data experts in the field find area, in this so employ- that because Japanese Prods., reliable.” In re Elec. experience, ment many years job, F.2d at 277.1 This Court held that the dis he can tell fatigued; whether metal is he approach “rejected] trict court’s the decision screws, can threads, tell whether threading Conference, of the Judicial Supreme screws, shorn, whatever, are whatever Court, Congress” “adher[ing] to an going beyond the lay person. ken unusually restrictive view to the basis on expert’s opinion may added). laid.” Id. (Emphasis ruling 277. The court, of the district judge The district specifically articulated containing legal interpretation of the mean Asplundh’s argument that Jones testified as ing Rule, correctly subjected to an expert, laya person, and stated that review under a plenary standard. course, “[u]nder [Rule] we are talking about opinion.” The district court ex- The record before us sharp stands in con- panded upon by stating: this to Furst, and, trast that and DeLuca particularly, to Japanese that in In re guy Elec- This expert. However, is not an he us, tronic Products. case the before experience, the has all this opin- these are his district court did not ions, involve itself an these are the opinions, reasons for his interpretation of the as in Rule DeLuca and going but we are not to call him as an Japanese In re Electronic Products. expert. Those get We want in, to the evidence 1. In In re Paoli Litigation, Railroad Yard PCB 35 concerning tive discussion Rule 703 in In re (3d - Cir.1994), denied, F.3d 717 Paoli, cert. Japanese U.S. Electronic Products. 35 F.3d at -, (1995), 115 S.Ct. 131 L.Ed.2d significant 134 747-748. More purposes, for our this Court followed Daubert v. Merrell Dow Phar recognize Paoli continued plenary review of a — maceuticals, Inc., U.S. -, 113 S.Ct. interpretation district court’s of a Federal Rule of (1993), rejected 125 L.Ed.2d 469 and its substan- Evidence. Id. at 749.

1209 experience and the Court articulates ump- The of his init view jury assess the let requirement after exercise force. the years on teen to hold first refuses Court The ambivalence. judge district jury, the dismissing the After that offering opinions all witnesses “that that: to counsel commented knowledge or special require metallurgy, background any I don’t Supra Rule qualify under 702.” must and I can paper clip take I can but proble- having found after It so states 1201. you a give I can while. it for a bend would courts which of some the views matic going to it’s I think when good idea pretty in technical areas lay witness permit I fatigue. And all of metal because break skill, “knowledge, for the the diminish need is clips. That occasionally paper use do is of the wit- training or education” experience, lay opinion. Supra at 702. under Rule qualifying ness that “the then states The Court rod’s weak- 1200 n. 12. the considering whether After the under admissibility the evidence opinion, district expert required ness limit,” is not without fall within 701 “That of Rule would strictures judge commented: Rule re- language of the embraced the sense reads the ambit common morning, the witness have “a The next that quire here.” sides both experi- grounded either judge ruled: reasonable basis district arriving at knowledge for specialized ence or [Rule] Counsel, respect Supra at expresses.” she opinion he or the reviewing tran- issue, I have been judicial “[t]he The Court comments: 1201. So, the circumstances under all ... script. speak of for cases screening that we Rule must, finding Ias looking at Rule very not different is as this one or not within it explanation, be valid ample ex- ordinary attends the screening that opin- allegedly record It Supra at 1202. ruling.” pert qualification adduced, to overrule going I am there ions followed the rule commend far as to goes so testimony to permit objection re- lay opinion which excludes in Delaware weight. goes to the it I believe read. skill, experience knowledge, special quiring painstaking us reveals before record The n. 14. Supra at 1201 training. testimony of Jones deposition study of the satisfy in determin- Rule 701 application of order “[i]n holds that Court The evidentiary judge This trial requirements, ing it admissible. these reliability discretion an exercise ruling palpably is rigorously examine should Rule. interpretation the witness by ensuring than an rather lay opinion knowledge or ex special sufficient possesses germane to is perience which III. are 1201. These Supra at offered.” 701, hold- Rule today rewrites Court Rule rather Rule requirements misinterpreted ing that the district protests, Thus, as the Court as much 702. sufficient failing to examine with of Rule to the fabric stitched has indeed the knowl- possessed rigor whether Jones of Rule requirements language and necessary to offer edge or teaching of contrary directly This at 1198. Supra nature. technical opinion of a Pharmaceuticals, Dow Merrell Daubert analysis dis- lengthy the Court’s When — 2786, 125 -, 118 S.Ct. Inc., U.S. aside, holding two has stripped cussion (1993), focused L.Ed.2d interpreted Rule first, has Court parts: it. before in issue of Rule language requirement the Rule incorporate could point, we stopped at this the Court If wit- be a demonstration that there made that the district observe spe- simply experience or possesses sufficient ness findings of appropriate to the qualify the witness knowledge to cialized opinion, proffered knowledge germane second, the opinion; express a technical counsel colloquy with lengthy aon based be examined Rule requires Court testimony deposition the study of complete rigor. sufficient with overnight, admitting before testimony the The Court necessary finds it to concede under Rule 701. that the district court summarily “did con- point clude at analysis one in its that Jones’s however, today, The Court stop does not ‘employment experience’ gave him ‘substan- with incorporating provisions of Rule 702 ” tial area,’ in this but that into Rule 701. It adds rigor” the “sufficient court did not examine “with rigor sufficient requirement, gives plenary which it review. question possessed whether Jones Indeed, necessary the basis of the Court’s to offer decision is an opinion of that the such impermissible district court a technical made nature.” Su- pra at interpretation 1204. The today Court Rule 701 simply because it refuses “failed accept court, with district rigor” examine sufficient whether with firm testimony understanding of requirements informed sufficient experi- appropriate ence or made specialized knowledge. findings Interpreta- sufficient to support tion requires admissibility of a rule determination of the the evidence. meaning language of the rule. On the The Court’s rewritten replaces contrary, failure to testimony examine the the district court’s admitting discretion on with rigor sufficient involves a judg- value rejecting evidence with appellate discretion ment weighing factors, and a which inher- exercised under a objec- formula with no true ently relate to the exercise of discretion. tive standard and plenary review. The Failure to examine with rigor sufficient sim- effectively Court switches the roles of the ply equate does not interpretation. The trial appellate courts. rationale Court support can find only from Lewis Carroll.2 IV. This Court has held that a trial court’s Further, the rigor sufficient test creates no determination of admissibility lay opin- legal yardstick upon which the district ion “may be only overturned for ruling court’s can be measured. Certainly, clear abuse of Joy Mfg. discretion.” Co. v. respect to Rule 701 and numerous other Indus., Inc., Sola (3d Basic questions, evidence admissibility of evi- Cir.1982). Evidence, citing Weinstein’s nu- dence involves a determination of on a where cases, merous succinctly: states “Basically, spectrum falls. This is reason Rule 701 is a rule of discretion.” 3 JACK B. applying an abuse of discretion test al, Weinstein et Weinstein’s Evidence is, however, considerations. It the trial ¶701[02], (1995). at 701-31 The district court’s determination questions of such ruling, court’s careful which we have dis- apply we the abuse of discretion rule. above, cussed the record which it Here, the Court has simply moved the exer- was based compellingly demonstrate that the cise of discretion from the district court and court did not abuse its discretion in admit- into the hands of appellate court. What ting of Jones. rigor sufficient and what is not simply

becomes a call appellate court, for the Jones regarding testified differentiations unlike the decision of a umpire, baseball ex- color the fracture site and that the rod cept there is no definition of the strike zone. fatigued and broke.3 He also testified that 2. Carroll wrote: respect to the you color of the broken end did observe? word," said, "When Humpty Dumpty I use a tone, rather a just scornful "it means what I Well, JONES: one was oxidized. one choose toit mean—neither more nor less." prior had been broken or earlier on was oxi- is," question Alice, "The you said "whether dized. can many make words mean so different ASPLUNDH’S you say COUNSEL: When "ox- things." idized"— Carroll, Lewis The Annotated Alice: Alice's Adven- JONES: It's different color. duller— It's Wonderland Through Looking tures Glass & more dull. (Clarkson Potter, 1960). N. New York respect ASPLUNDH’S COUNSEL: With JONES: And the simply fresh break was fresh. cylinder portion, end, rod the broken App. what with See at 162. times, fatigues Anyone it it breaks. to the not relevant were stop blocks the anything due solid knows eye rod broke off who’s ever dealt the because accident4 through, paper clip, was drilled it with a bend way rod end that. You can do the thus, threaded, and, He conclud- fatigue. weakened.5 I cer- until it That’s it breaks. which caused problem fatigue through this was tainly ed that what metal is know further stated He of the boom. discovery the failure of the my own cylinder configured a had not seen that he way works. life way. experience, the district court Jones’s Given upon his based were observations concluding that its discretion in did not abuse mainte- He was fleet experience. practical express a on qualified to he was City at of Portland supervisor for the nance fatigue. metal held this and had of the accident the time supervising be- years, for over ten position Indeed, considered the the district court city or 7 employees, 6 60 and 100 tween today requires, specifically, factors the Court 1,385 maintenance shops, and the repair knowledge, employment Jones’s substantial Asplundh including the equipment, pieces of job. Any years inter- experience, and on the spent per- job, In that Jones aerial lift. springs of Rule 701 this case pretation overseeing the work done his time cent of analysis, than own rather from this Court’s himself. a work done mechanical and had district application of Rule 701 fuel tanks for job, blowoff he riveted previous simply applied the district court court. As he had He stated that military aircraft. testimony, we must proffered Rule 701 to aptitude and understood high mechanical an abuse of dis- judge that determination on deposition way things worked. Some basis. cretion the district transcript upon which gives although today simply insufficient ruling significant, its Court based exam- rea- at trial. For court’s articulated weight into evidence to the district introduced on his soning stated: was based ple, Jones had substantial experience and Jones garage, Well, your own you if work even tell whether so as to technical in a put piece of metal you if take are fatigued and whether threads enough metal back and forth bend it vice and Okay. fleet As COUNSEL: you 5. ASPLUNDH'S Can tell me COUNSEL: ASPLUNDH'S Portland, you just gave City manager you for the what base maintenance why the develop on? as to you a conclusion did occurred? accident Well, rod removed from I saw the JONES: fatigued and broke eye. halfway where it had I saw thing that this broke The reason JONES: through, where it was and then I saw way something that had shows was killed is because break. So one Sackerson fresh long period anoth- eye. of time and fatigued for a First one been broken inside the rod itself rod breaking recently. it broke at the And er one half went to ultimate then the other half and thread, through place where the and it broke eventually finally The reasons broke. the time it pin was installed. one, through pin caused the hole two: are App. at 160-61. See two, and, yeah, to be weakened the rod the— eye caused the rod itself itself—on say threads Why you do COUNSEL: 4. ASPLUNDH’S sharp, breaking point. They were and it broke stop no your blocks] have [the belief that that it’s things bearing point those right the case? where all of at that problem. There’s no That was intersected. presence it,.... Okay. of those Because JONES: my about mind doubt in blocks, they're or not there would there whether App. at 160-61. breaking the rod stopped of—off not have eye. They're not relevant. you say Why do COUNSEL: ASPLUNDH’S that? eye because broke off Because the rod JONES: was drilled way of the rod the end of secure a screw eye. on the rod App. See at 159-60.

shorn, goes beyond lay- fatigue the ken of a A fracture will often show a charac- person. reject should The Court not pattern teristic on the fracture surfaces. reasoning articulated of the district court so Frequently there will be two areas that are facilely. markedly in appearance. different This is only portion because fractured from fa- today firmly The Court asserts that metal tigue, failing the remainder from overload. fatigue concept, is a technical and “the fatigue portion shiny The will often be and knowledge realm of common [does not ex- will often contain conchoidal or “clam presence tend] to such issues as the and markings shell” position which indicate the proper design cause of failure metal and the of the crack at stages the various of its hydraulic cylinders.” Swpra at 1205. The progression. portion, The overload Court switches the roles of the trial court hand, generally other will be duller and appellate and the court. The district court ductility will show plastic some defor- findings only made abundant not on Jones’s mation. experience, and but also on the knowledge concerning fatigue. common metal added). Id. at (emphasis While Jones appropriate It is the role of the district court did not about markings, clam shell he Today, findings. make such the Court carefully explain did differing colors of simply rejects appropriates these views metal, indicating development factfinding role to itself. fracture, metal, overstressing Perhaps physical process of metal fa- parting the final at the fracture surface. tigue requires knowledge, technical but the The text discusses experts the use of appearance of a metal fracture site demon- factors, analyzing fatigue but closes with the strating fatigue failure was described following observation: Jones, properly and the district court con- While the competent professional aid of cluded knowledge, this was based on his help important in explaining the failure appropriate subject lay opinion. standpoint, from a scientific the assistance ruling The of the district court and the may given by persons qualified by deference due it light must be considered in training particular in a of the evident fact that this is a nation where trade or craft should not be overlooked. many grow up individuals with extensive me- example, For proper- capabilities. chanical Repair- ties and characteristics of metals is essen- ing machinery, household automobiles and welder, tial to a blacksmith or and either equipment farm part is a central of life for may acquired by experience a knowl- many individuals, early years, to late edge dangerous as to the conditions in vocationally avocationally. either Fatigue brought metals irregular- about surface failure of metal is not unfamiliar to such ities, notches, tool marks and the like. persons. testimony given by Jones ex- Similarly, experienced a mechanic in work- plaining background his squarely fits into ing with qualified trailers would be to testi- pattern judge as the district recognized. fy dangers as to the inherent in a loose support Textual for Jones’s can be hitch, trailer and an repairman elevator found in 8 Am.Jur. Proof of Facts Metal may speak authoritatively concerning ex- (1960 Supp.1994), Failure 127 & which states perience industry in the with cable failures that, cycles stress, after a number of practice the standard periodically may small crack form in the metal where the cutting discarding off and length of cable and, highest stress, stress is under continued to avoid failures. grow until the metal fractures from overload. Id. at 137. just Jones’s such an Id. at 129. signs Proof of Facts outlines the example. fatigue, including metal pat- the fracture tern on the broken presence surfaces and the opinion, The Court’s with its abundance of of stress raisers such scholarly as threads and holes. reasoning, proves self-defeating. Id. at essence, 130-31. Proof of Facts describes the simply Court examines markings on fracture surfaces as qualifications follows: expert, points as an him, perceived by “made expe- from facts those opines that Jones’s experience and Id.; designing hearing.” nothing to do with to him at or before the has known rience machinery. Supra design evaluating of 703. See also In re Merritt Fed.R.Evid. However, not the design (3d was Inc., 349, at 1205-1206. 359-60 Logan, 901 F.2d Cir. Although testimony. point of Jones’s 1990). central hypothetical was not asked Jones never seen a that he “had testified Jones expert opinions, questions, express did not he way,” see configured that cylinder that size testimony was not admitted on that and his 167, thrust of his testimo- App. the central basis. fracture of the ny concerned his observations evidence is admitted under Rule When caused the opinion that itself and his 701, argument and will “cross-examination collapse the lift boom.6 of id., weakness,” jury and the will point up the points the deficiencies also out The Court light lay opinion testimony in weigh the had that he formal education: of Jones’s any countervailing Benton Har- evidence. metallurgy, material fail- taken no courses training Jones’s and bor’s counsel scrutinized designed a fatigue, not had ure or metal and read ex- experience on cross-examination year one cylinder, and had but hydraulic cerpts jury highlighted those in material college with no studies education training of formal issues. Jones’s lack Supra at 1204. These com- compositions. opin- of his prevent the admission should qualification of might bear on the ments Myers, v. 972 F.2d Rule ion. See United States give expert opinions under Jones (11th Cir.1992) experi- (admitting lay practical 1577 they do not reach the qualify testimony gun that Jones a caused opinion that stun ence Compare Fed.R.Evid. express lay opinion. a percep- witness’s marks based on the burn Fed.R.Evid. years 701 and police 19 of the burned skin and tion holding opinion’s lack of experience; that require technical knowl- 701 does not exposed could be on basis but, rather, technical/medical requires that expertise edge or weight, and affected the cross-examination rationally based on the wit- lay opinion be evidence), cert. admissibility, of the not the i.e. “the familiar re- perceptions, own ness’s — denied, -, 123 113 S.Ct. U.S. knowledge or obser- quirement of first-hand (1993); Joy Mfg., 697 F.2d at advisory commit- L.Ed.2d vation.” Fed.R.Evid. inability precisely (holding to state on that opinion was based tee’s note. Jones’s prevent product inoperable rod. did not why of the fractured was first-hand observation inches, inoperable approximately lay testimony product that was a distance of From differing but, rather, of the for “proper colorations material effec- he observed was cross-examination”). that the rod surface and saw Based metal fracture tive a hole in it. area with broke a threaded could the district court experience, Jones’s to observe the ample opportunity He had qualified to that Jones was properly conclude opinion. form his fracture and to shortcomings Any express opinions. these could or weaknesses Int’l, Inc., Teen-Ed, Inc. v. Kimball As developed on cross-examination. been (3d Cir.1980), ob- the Court observed, the is- judge cogently the district difference between served that the essential sheepskin, possessing a not one of sue was is that the expert opinion evidence experience. common possessing but rather questions, may hypothetical expert answer judge reasoning, a district may testify only Even with flaws whereas designed. defectively rod end was opinion stat- whether the 6. The Court characterizes fa- ing caused metal characteriza- Supra that “the fracture was The Court's at 1204-1205. design tigue was attributable to testimony beyond that which Jones's tion carries Supra The Court later char- end." at 1194. substance, rod support. spoken words will case as “whether it was the issue in the acterizes fatigue which oc- fracture described Jones express opinion permissible Jones to point, where it was weakest curred at the rod’s fatigue to metal end had broken due the rod that the Supra through I read Jones's and threaded. drilled ” ‘problem.’ the rod end was causation, opinion on express an then determines at 1204. The Court design. defective but not on opinion express qualified was not Jones may properly “hearing ... personal knowledge conclude er the witness has (2) assessing derived; its flaws facts from which the important part assessing what conclusion rationally whether the supported, may certainly was correct and still believe “apparent i.e. person’ ‘normal in [the jury attempting that a to reach an accurate position;” and witness’s] whether result should consider the evidence.” In re to the trier of fact. Soden Litig., R.R. Paoli Yard PCB 35 F.3d Freightliner Corp., 511-12 — (3d Cir.1994) Daubert, (discussing U.S. (5th Cir.1983) Lots, (citing Lubbock Feed Inc. -, 2786, requirements and 113 S.Ct. Inc., Processors, 250, v. Iowa 630 F.2d Beef — denied, expert testimony), cert. U.S. (5th Cir.1980)). testimony Jones’s is not (1995). -, 115 S.Ct. 131 L.Ed.2d 134 unlike that at issue in Soden and meets the by standards articulated Soden. today appears recognize Court and generally application to limit the of Rule 701 argues The Court here that “cases like conditions, and, appearance, to human human Soden stretch the doctrinal boundaries of perhaps, speed property vehicle value. opinion testimony.” Supra at 1200. permissible This should not be the extent of Soden, Lasere, The witness awas service lay testimony. testimony Jones’s that metal manager charge of the maintenance of fatigue caused the fracture and the accident trucks, qualifications closely parallel and his is more evocative and understandable than a step those of Jones.7 Lasere testified that a long physical description of the rod’s outward bracket located near the tank fuel caused appearance, although Jones offered both. holes in the tank and that this was quotes following The Court from United dangerous. Id. at 510-11. The Fifth Circuit (9th Yazzie, States v. 976 F.2d opinion stated that Lasere’s was one that Cir.1992), case involved “may properly by have been more made one rape appeared on whether a victim to be formally expert,” more id. at but that years fifteen or sixteen old: opinion adequately grounded his in his impossible “If it reproduce or difficult to Likewise, own and observation. witnesses, by the data observed or the opinion Jones based his of causation on his explanation, facts are difficult of or com- rod, examination of the the different colora- plex, or are of a combination circum- tion, and the fact that the break occurred appearances stances and which cannot be near a drilled hole a threaded area. The adequately presented described and with court in Soden commented that Lasere’s tes- they appeared force and clearness as timony on rationally supported causation was witness, may the witness state his apparent and “would have been to a ‘normal impressions opinions based what person’ position.” applies his Id. This he observed.” equally opinion. to Jones’s The court (allowing lay Id. at opinion testimony) expressed only Soden reservation as to La- Skeet, (quoting United States sere’s that the situation was dan- (9th Cir.1982)). general principles These However, gerous. step this final in Lasere’s apply equally testimony. to Jones’s See also by is not matched a similar Co., Aliquippa Eckert v. & S. R.R. dangerousness Thus, by Jones. rather (3d 183, 185 Cir.1987) (cited n. 5 approv Soden, than exceeding scope this case allowing lay al the Court and Jones’s observations are testimony as to whether an accident would squarely supported by reasoning. Soden’s have occurred had the railroad cars involved coupled properly). The district court reached different con-

In determining propriety opin- competence clusion on Jones’s aas ion, other However, courts have considered: wheth- witness than would this Court. today accepts distinguish 7. The Court only Lasere’s the two. This serves to illustrate qualifications rejects degree, those properly of Jones. that this determination is one of Certainly, eighteen years judge the fact that Lasere had decided the district in the exercise of experience and Jones ten is not sufficient basis to discretion. expert testimony wanting. find it there is dispositive unless should not be however, the case before us the district discretion. an abuse of court, study deposi- painstaking after a Wigmore comments Professor testimony, tion determined that Jones’s testi- simply theory rule true mony lay opinion, properly admissible as reject superfluous evidence. 7 John HenRY jury and that the should be the arbiter of its (James § WigmoRE, Evidenoe weight and value. 1978). Wigmore’s text rev. Chadbourn The district court did not abuse its discre- Green, 10 & R. Cornell v. S. quotes from admitting tion in under (Pa.1823), the facts from stating that when Rule 701. impres- lay witness “received which the in their nature to be are too evanescent sion

recollected, sep- complicated to be or are too narrated, impres- distinctly

arated and facts become evidence.” Id.

sions from these 1924, Wigmore § concludes that: at at 26. FELLHEIMER, & EICHEN chiefly wrong by no means the “[w]hat BRAVERMAN, P.C., itself, quibbling but the illiberal test Appellees, it.” application of v. report- it find no states that can Court lay regard- testified ease where a ed TECHNOLOGIES, INCORPO- CHARTER However, fatigue. none of the ing metal Electronics; Knox, RATED, Elgin d.b.a. of the Court’s cited footnote 20 eases Sennett, P.C.; McLaughlin, Gornall & admissibility opinion deal with the Esquire, Guy Fustine, C. Westra, Further, v. Salter evidence.8 Fellheimer, Eichen, Braverman and Cir.1990) (11th (cited 1517, F.2d Kaskey, P.C., Appellants. 22), only majority in discusses not footnote testimony, lay of me- expert but No. 94-3461. describing the fracture surfaces of the chanic Appeals, United States Court and rust lug bolts with the evident corrosion Third Circuit. streaks.9 7, Argued March 1995. distinguishing 701 and Rule 702 evidence, expert recognize we should 22, June 1995. Decided comes before a impressive credentials with by most jury an aura unmatched recognize that the We also must

witnesses. may weigh

jury either man-Oster, Inc., (6th (and Cir. "experts 728 F.2d have testified disa 8. The fact that fatigue 1984) fatigue greed) (noting expert testimony could be de as to whether metal that metal tected,” supra fracture). is not relevant here. tellingly, these caused Most involving the Court None of the cases cited admissibility deal with issues other than each fatigue expert opinion on metal remove of this evidence. lay opinion. realm of See from the Corp., 11 F.3d v. General Motors Fusco Inc., Companies, Sullivan v. Rowan 9. See also (1st Cir.1993) (noting experts' disagreement on Cir.1992), (5th 145-46 where 952 F.2d fracture); fatigue impact Mar caused whether quali- that a witness was not district court ruled Corp., v. General Motors rocco metallurgy, expert testify as an fied (7th Cir.1992) (noting experts’ agreement under Rule him to as a witness allowed component precluded allegedly defective loss microscopic exami- 701 on his observations defects, including fatigue); possible evaluation of split testing in half. of a socket nation Westra, (11th Cir. Salter opine did not allow the witness The court 1990) (noting experts' disagreement to cause failed, why defective or whether the socket was heavily opinions "relied of accident where their contrary decision would that a but commented description physical the mechanic's necessarily required Id. at reversal. tire hub before he state of the wheels and the them”); Baugh repaired Co. v. GroverHill Grain

Case Details

Case Name: Asplundh Manufacturing Division v. Benton Harbor Engineering

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 20, 1995

Citation: 57 F.3d 1190

Docket Number: 94-1095, 94-1201

Court Abbreviation: 3rd Cir.