*1 KNOSTER, ESTATE OF EDWARD W.
by Irene Ad Knoster as Administratrix
Prosequendum; Knoster, Irene indi- Rea;
vidually; Sylvia Appellants, Ann COMPANY,
FORD MOTOR Party
Defendant/Third
Plaintiff, Knoster, Party
Irene Third Defendant.
No. 05-3355. of Appeals,
United States Court
Third Circuit.
Argued 2006. June Sept.
Filed *2 Murray Mary S. (Argued),
Thomas J. OH, O’Neil, Sandusky, Murray Murray, & Appellant. for (Argued), Campbell L. Bucknum Susan P.C., Conroy Wayne, & Campbell Edwards PA, Appellee. for FISHER,
Before: CHAGARES and REAVLEY,* Judges. Circuit * Reavley, ting by designation. Honorable M. United Thomas Circuit, Judge sit- States Circuit for the Fifth intersection, shaped OF THE Mrs. Knoster down-
OPINION COURT moment, At that shifted. whatev- CHAGARES, Judge. Circuit reason, er the Taurus accelerated toward evening July On the a one-car pace. the intersection at a furious In a County, crash Hunterdon New vehicle, desperate struggle to control the claimed Edward Knoster’s life. In this Mrs. Knoster slammed the brake and *3 case, Knoster, diversity appellants Irene failed; jerked the wheel. Her efforts the Rea, Sylvia and the Estate of Edward through car sailed the intersection and Knosters”) (collectively, Knoster “the seek building. crashed into a stone farm Mrs. damages to recover from the car’s manu- survived, her daughter Knoster and facturer, Company. Specifi- Ford Motor injuries Mr. Knoster’s were fatal. cally, they bring failure-to-warn and de- parties’ dispute The core of the was the sign-defect Jersey claims under the New cause of the Taurus’s acceleration. The (“PLA”), Liability Product Act Stat. suddenly Knosters claimed that it took off -11, §§ Ann. 2A:58C-1 to and an addition- having stepped without Mrs. Knoster ever al claim under the New Consumer gas pedal. theory on the Their (“CFA”), Fraud Act Ann. N.J. Stat. engine pro- the vehicle’s electronic controls § 56:8-1 to -106. signals capable duced transient electrical The District Court dismissed the con- activating open- the cruise control and evidence, sumer fraud claim at the close of ing input. the throttle without driver jury rejected and a the failure-to-warn pull gas pedal This failure would then design-defect appeal, and claims. On to the floor and car careening send the challenge Knosters two of the District over, forward. After it was the failure evidentiary rulings, its in- Court’s would leave no detectable evidence behind. structions, and its dismissal of the con- theory, In support of this below, explain sumer fraud claim. As we produced from Ford documents several evidentiary neither the District Court’s studies, testimony of Mrs. Knoster and rulings duty nor its instructions on Ford’s Rea, expert testimony Ms. and the of Sam- to warn contained reversible error. But Sero, engineer. uel an electrical did, design-defect its and instruction we argued story Ford that the Knosters’ is disagree with its conclusion that the PLA physically impossible. It claimed that subsumes the Knosters’ fraud consumer accelerated, the Taurus it must have done part, claim. will therefore affirm in We reached for the so because Mrs. Knoster in part, reverse and remand for further accidentally stepped gas. on the brake but proceedings. In support argument, Def. Br. at 5. of this I. sought reports pro- Ford to introduce two Highway duced the National Traffic As parties we write for the and the (“NHTSA”). Safety Administration The Court, provide only we a brief District will launched a comprehensive NHTSA investi- sketch of this case’s facts. It was a gation reported into incidents of sudden weekend, Fourth-of-July Irene October, 1987, acceleration in and after driving family Knoster was home from a years report it issued a detail- two work picnic her 1993 Ford Taurus. Her (“the ing findings Report”). its Rea, NHTSA daughter, Sylvia was in the front seat, husband, Report concluded that “two NHTSA passenger and her Edward Knoster, independent, or more intermittent failures sat in rear on the driver’s simultaneously would have to occur approached side. As the Taurus the crest opening way T- in a steep, winding leading of a hill to a cause throttle would consequence more any fact that is of after the incident.” be difficult to detect (“JA”) than it would be According probable Appendix probable Joint 3695. less NHTSA, is This standard “is this confluence events without evidence.” JA Ten “virtually impossible.” logical threshold of high, not once the years later, attorney Sandy peti- McMath relevancy largely the matter is satisfied reopen tioned the matter. the NHTSA trial court.” within discretion JA 4124-29. The NHTSA’s Office of De- Steele, United States review, Investigation fects conducted omitted). (3d Cir.1982) (internal citation April, deny- issued document claim their automobile sud- The Knosters Denial”). (“the ing the McMath petition accelerated, and denly and spontaneously important part JA Another 4130-64. that such an event is reports concluded testimony Ford’s of re- defense was 3695, 4162. “virtually impossible.” JA *4 tired He employee Koeppel. Ford William Thus, believed, reports if tend to make attempted to the Knosters’ rebut assertion consequence “a fact less that reports that a in sudden-acceleration rise they satisfy the dictates of probable,” and coincided with Ford’s introduction of elec- Rule 401. engine tronic controls. though reports Even are rele Upon considering the and evidence vant, they hearsay and are also thus are charge, jury rendered for verdict they not unless fit within an admissible followed, Ford. appeal This the Knost- exception hearsay rule. to the See Fed. present questions ers six for our review. 803(8)(C) provides R.Evid. 801-02. Rule First, Report were the NHTSA exception public reports “setting an for (collectively, McMath Denial reports”) “the findings resulting forth ... from an factual hearsay either or not irrelevant within the investigation pursuant authority to made exception Second, public for records? did law, granted by unless the sources of infor Mr. Koeppel’s testimony include inadmissi- mation or circumstances other indicate Third, lay response ble opinion? to the reports lack of Public trustworthiness.” jury’s query, did the District im- Court presumed trustworthy “and the party are properly limit the scope duty Ford’s to bears opposing their introduction the bur Fourth, warn? should the court have in- enough den of coming nega forward with jury structed the on section 3 of the Re- factors persuade tive to court (Third) statement Torts: Products Lia- report admitted.” See should not be In re bility? Fifth, should it have instructed the Co., 105, Nautilus Tanker Motor F.3d jury Jersey’s on New consumer-expecta- omitted). (3d Cir.1996) (quotation The tions test for defectiveness? And 803(8) Advisory to Rule Committee notes sixth, was error dismiss the Knosters’ provide a list of factors for helpful courts consumer fraud claim? willWe address (1) investigation’s to consider: timeli question each in turn. (2) ness; experience expertise of the (3) official; hearing whether was held
II.
and,
so,
hearing
conducted;
how the
was
The Knosters claim that
the NHTSA
(4) “possible
problems.”
motivation
Report and the McMath Denial are irrele-
held that the reports
vant
District Court
hearsay.
and constitute inadmissible
401,
sufficiently trustworthy,
are
and we
Under Federal Rule of Evidence
rele-
review
vant evidence
“make[s]
existence
determination for abuse of discretion.1
argue
1. The
contrary.
Knosters
de
stan-
are to the
See
novo
Coleman Home
(3d
applied,
precedents
Depot,
dard should be
but our
306 F.3d
Cir.
operation.”
“An abuse of discretion is a clear error of
learn more about its
JA 4134-
not
36. The NHTSA’s methods do
dimin
judgment,
simply
and not
a different result
reports’ presumption
reliability;
ish the
arguably
ap-
which can
be obtained when
Nautilus,
they
it.
reinforce
85 F.3d
plying the law to the facts of the case.”
electromagnet
113. Even if the NHTSA’s
Co.,
Infinity Group
SEC v.
testing
swept
broadly,
ic
could have
moré
(3d Cir.2000) (internal quotation
omit-
hardly
judgment”
it was
a “clear error of
ted).
jury
reports’ probative
let the
assess the
reports
The Knosters contend that the
Infinity Group,
value. See
F.3d at
untrustworthy
are
three
reasons.
195;
generally
see
Jarvis v. Ford Motor
First,
they dispute
reliability
(in
Co.,
Cir.2002)
283 F.3d
mat
They argue
NHTSA’s methods.
alleged
ter where sudden acceleration
claim of
Report’s
NHTSA
extensive test
weight given to the conclusions
“[t]he
ing
representative
on 10
vehicles
inac
was
report
the NHTSA
... was a matter for
They
curate.
note
the Audi re
decide.”).
testing,
ceived electronic
and even that
Second, the Knosters contend that their
preliminary.
Reply
Pl. Br. at
objection
“main
to the admission of the
Br. at 1. The Knosters also claim that the
preju-
McMath Denial
the enormous
[is]
single
McMath Denial was the work of a
engendered by
dice
its ad hominem at-
*5
employee
NHTSA
who did
than
no more
expert,
tacks on the Knosters’
Samuel
talk
people.
test drive vehicles and
PI.
Reply
Sero.”
Br. at 3. If the Knosters
characterizations,
Br. at 19. These
howev
thought
unfairly
the McMath Denial was
er, unfairly diminish the extent of the
prejudicial, they should have raised an ob-
undertaking.
preparing
NHTSA’s
In
the
jection under Federal Rule of Evidence
Report, the
NHTSA
NHTSA studied re
so,
403. But even
the McMath Denial
acceleration;
ports of sudden
interviewed
not
does
contain ad hominem attacks.
It
drivers;
systems, braking
examined “fuel
“plainly wrong;”
states that Mr. Sero is
controls;”
systems,
driving
per
and
and
theory
that his
has been “addressed and
experiments.
formed tests and
JA 3693-
rebutted;”
sup-
that “no
evidence”
credible
94. It also supplemented its own consider
it;
position
ports
up
that he “takes
the
expertise
independent panel
able
an
with
responsible
that drivers are not
for the
engineers,
of mechanical and electrical
vehicles;”
operation
safe
of their
and that
professors,
Ray
MIT
and
Magliozzi
even
of
testing
“misleading”
“completely
his
and
Talk.”
National Public Radio’s “Car
See JA inconsistent with real world driver behav-
Denial,
3750-67. As to the McMath
the
4144-45,
ior.” JA
4158-59. These
Investigation performed
Office of Defects
against
person;
arguments
are not
the
research;
array
“[i]nspected
wide
var
against
person’s
they
arguments
are
the
ious Ford vehicles to understand cruise
testing
methodology.
Rugge-
and his
operation;”
specifi
control
studied vehicle
Aldisert, Logic
Lawyers:
ro
For
A
J.
cations;
(3d
and disassembled one of Ford’s
Legal Thinking
Guide to Clear
ed.1998).2
...
Dump
“Mechanical Vacuum
Valves
The McMath Denial focused
2002) (“We
admissibility
disregarding
signifi-
the
of evi-
factors more
review
while
cant.”) (internal
omitted).
quotation
dence for abuse of discretion....
This stan-
803(8)(C)....”);
applies
dard
to Rule
United
Versaint,
(3d
admissibility
express
opinion
States v.
849 F.2d
831-32
2. We
no
on the
Cir.1988) ("Under
803(8)],
testimony.
this Court
[Rule
Sero’s
The District Court
of Mr.
hearing,
the district
court
reserved
must decide whether
conducted a Daubert
but it
issue,
by giving
weight
ruling
at
undue
on the
and Mr. Sero testified
abused its discretion
slight
factors of
relevance
trial. See Def. Br.
to trustworthiness
in the
only by
methodology
specialists
mastered
and
be
upon
testing
Mr. Sero’s
Comm.
unfairly
Fed.R.Evid. 701 Adv.
prejudicial.
and was not
field.”
omitted).
(internal quotation
*6
Cir.1991). However,
to
party
when a
fails
two
JA
causal inference on
occasions. See
for
object we review
error. Abrams
plain
hearsay
He also
referenced
(3d
1204,
Lightolier,
1213
50 F.3d
Japanese
from the Canadian and
reports
Cir.1995). Furthermore,
objecting
if the
governments. JA 2575-79.
party
testimony,
elicited the
she cannot be
challenge
appeal.
Knosters, however,
heard to
on
its admission
not contem-
did
Console,
641,
See United States
13 F.3d
object to any of this testimo-
poraneously
(3d Cir.1993).
660
for
ny.
therefore review its admission
We
Abrams,
at 1213.
plain error. See
50 F.3d
701, lay
Rule
cannot be
opinion
Under
to
Koeppel’s
stray
two
references
Despite
technical,
scientific,
on
or other
“based
conclusions,
jury
his causal
remained
knowledge
of
specialized
scope
within the
Moreover,
reject
accept
to
them.
free
701(c).3 In
Rule 702.”
other
Fed.R.Evid.
of a
opinions
largely duplicative
his
were
words,
testimony
lay
from a
]
must “result[
Report.
in
reasoning
everyday
similar discussion
the NHTSA
process
familiar
(“[Wjhen
life,”
to
can
opposed
process
Report,
as
a
“which
See NHTSA
JA 3745
response
Asplundh Mfg.
part a
3. Ford cites
Div. v. Benton
was in
to the concerns
ment
1190,
by Judge
Asplundh.
Eng’g,
expressed
Cir.
Harbor
Becker in
States,
Notes;
1995)
Sipes v.
F.R.D.
701 Adv.
As-
United
Fed.R.Evid.
Comm.
(deter-
59,
(S.D.Cal.1986),
proposition
plundh,
57 F.3d
1200-01 & n. 14
for the
permits lay
spe-
mining
"it is not
opinion
Rule 701
based on
for us to rewrite
"commending
knowledge.
Congress
is-
th[e]
cialized
amended
rale” but nonetheless
But
2000,
plainly
Conference
Rule 701 in
new rale
sue to the attention
the Judicial
and the
Indeed,
Evidence”).
supercedes
Advisory
these cases.
the amend-
Committee
Rules of
suggest
jury
media
on the matter and
reto-warn claim. The
asked whether
focus
question regarding
there are unknown mechanical or electron-
it should “answer the
a
causes,
design
ic
... some incident-involved driv-
warning specifically about
may ...
system
general
ers
conclude
their vehicles
or in
the cruise control
fault.”). Thus,
must be at
even
about an event of sudden acceleration no
testimony
improper,
it did not “under- matter what the cause.” JA 3291. Over
mine the fundamental fairness of the trial”
objection,
respond-
the Knosters’
the court
miscarriage
justice.”
a
or “contribute to
question
ed: “Your answer to
number 3
Pa.,
Osei-Afriyie
College
v. Medical
design
should
based
on the
of the
be
”
(3d Cir.1991).
937 F.2d
881-82
system....
cruise control
JA 3291. On
appeal,
argue
that Ford had
Koeppel’s
allegedly
All of
other
im
duty
danger
to
a
of sudden
warn about
proper
during
statements were made
cross
acceleration no matter what the cause.
“if
testimony,
examination. As to this
abstract,
argument
In the
the Knosters’
all,
there was
error at
was invited
A
regard
in this
has some merit.
failure-
error and cannot now be a basis for rever
proof
claim not
Console,
dependent upon
to warn
sal.” See
The
involved
Indeed, the Knosters’
on the verdict sheet —the Knosters’ failu-
tion to warn about.
be; rather, we
diversity
case
view of what state law should
In
case such as the
sub
apply existing
interpreted
jucLice,
apply
we
law of the
are to
state law as
the substantive
governs
proce-
by
highest court
in an effort to
state whose law
and federal
the state’s
pre-
parties
dispute
that court would decide the
dural law. The
do not
that the
decide how
Co.,
Koppers
Jersey applies
legal
us.”
Inc.
law New
herein.
cise
issues before
substantive
of
Co.,
Further,
"adjudicating
&
98 F.3d
1445
a case under
v. Aetna Cas.
Sur.
when
Cir.1996).
law,
impose
we are not
to
our own
state
free
at the time of
product
existing
defect
proposed warning stated that disconnect-
distribution,
proof
of a
ing the cruise control would abate
dan-
sale
without
or
Thus,
defect,
under
ger completely.
specific
JA 3163.
when the incident
theory,
own
failure
their
cruise-control
plaintiff:
harmed the
necessary predicate
was a
to the failure-to-
(a)
ordinarily
a kind that
occurs
was of
2922 (plaintiffs
warn claim.
JA
coun-
defect;
and
product
as
of
Cf.
a result
stating
my understanding that
sel
that “it’s
(b)
case,
not,
solely
particular
in
was
to
is
within the
failure
warn
subsumed
than product
of causes other
result
case.”).
design
defective
The District
existing
the time of sale or
defect
at
properly instructed the
Court’s answer
distribution.
jury that
speculate
should not
about
(Third)
Restatement
Torts: Products
of
wholly
causes of sudden acceleration
un-
(1997).
Liability § It
supported by the record.
therefore
Jersey
long applied
has
a version
New
“fairly
adequately
and
submitted the is-
cases,
products
res
see
ipsa
Jakubow-
in the
jury,”
sues
case to the
and we will
Manufacturing,
ski v.
&
Mining
Minn.
judgment
affirm the
to
District Court’s
as
(1964),
177, 184,
It inferred the harm 3.6 Restatement’s comments be that sus- by plaintiff by point “product design tained caused a that a was out when confusingly, co-Reporter 6. As ex- 5. Somewhat the PLA makes the the Restatement’s has technically plained, practical No. 1 absence of "a feasi- "Tentative Draft limited design” application ipsa ble alternative a N.J. of the res doctrine to manu- Stat. defense. Nonetheless, 2A:58C-3(a)(l). § facturing defect But after "intense Ann. “the cases.” an process,” plaintiff’s that statute does not alter burden to deliberative limitation Twerski, dropped. failure a show defendant’s to follow reason- See Aaron D. Inside Restatement, 839, design.” Cavanaugh, Pepp. 24 able 164 L.Rev. 842-44 alternative 7, N.J. at A.2d 518. 751 114 product 593,
causes the
in
to malfunction
a N.J. at
“Generally
A.2d 673.
manner identical to that
is,
which would ordi-
speaking,
product
the older a
the more
narily
aby manufacturing
be caused
de-
prove
difficult it is to
that a defect existed
fect,”
may apply.
section 3
See Restate- while in the
control
the manufacturer.”
(Third)
3,§
ment
comment b.
Id. But
some cases the
can
evidence
sufficiently
possible
exclude other
causes
The first
recognizes
element of section 3
“without
product’s age.”
reference to the
a product
utterly
sometimes
fails so
4,
Id. at
n.
Section 3’s second
See Restatement
illustration
element demands
plaintiff
possible
exclude other
6. We therefore hold that
the Knosters’
Scanlon,
causes of the incident.
may permit
65 evidence
an
inference
defee-
(Third) §
7. See also
application
Restatement
illustration
of section 3. But Scanlon held
("[Plaintiff’s] qualified expert presents
cred-
plaintiff
“cannot
... be
heard
testimony
ible
that a defect in the automobile
argue
question foreign
for reversal on a
to the
must have caused the accident.
[Defendant’s]
proceedings.”
Generally speaking,
initial
Id.
qualified expert presents
testimony
credible
plaintiff
necessarily
"the
is not
confined to the
that,
equally likely
independent
explanation
expert may
his
advance.”
Sa-
defect,
speeding
Driver lost control while
321; Scanlon,
bloff,
115 (“Some § 8, principle in the 3 applying of a courts proof tiveness under section to meet design product failing unneces- in of the alternative talk terms reasonable ”). To sary. expectations.’ say ‘consumer say is to is “self defect evident” instructing section under Instead loquitur. As ipsa for itself —res speaks 8, if the District stated that even the Court in anal- such, separate engage we need not proofs Knosters’ jury believed the —even test. consumer-expectations ysis of Suter’s suddenly accelerated without the Taurus gas on still stepping Mrs. Knoster the —it VII. safety “whether ben had to determine the vehicle, design of the efits from alternate Finally, argue by plaintiffs, greater proposed as were their PLA does consumer the not subsume disadvantages resulting than costs or therefore, and, claim the District fraud by proposed design.” plaintiffs caused the The dismissing in this claim. Court erred when, here, product’s as a JA 3158. But com prohibits “any unconscionable CFA manifest, al proof failure is reasonable fraud, false practice, deception, mercial unnecessary. Re design ternative is promise, misrepresentation, false pretense, (Third) 3, b; § cf. comment statement concealment, knowing suppression the or Charges New Model Civil 5.34C-1 fact intent any or omission of material with (stating that for “akin to defects rely in connection the that others with .... usual manufacturing defect[s] the sale or advertisement merchan Risk-Utility Balancing Test unneces ” § Pri .... Ann. dise N.J. Stat. 56:8-2. sary”). By focusing jury’s the attention they parties prove vate must suffered issue, “fair the District Court did not moneys prop an “ascertainable loss of ly adequately” apprise jury of the the erty” practice. as a result of the unlawful Limbach, properly issues it. before successful, § can re they Id. 56:8-19. If 949 F.2d at n. 15. therefore We will at damages treble and reasonable cover the judgment reverse District Court’s as However, torneys’ fees. Id. economic design-defect claim and for the remand v. damages are recoverable. See Gennari further proceedings. Realtors, 582, 612- Co. Weichert 13, A.2d 350
VI.
PLA,
2 of
N.J.
Ann.
Section
the
Stat.
The Knosters also claim that the “con
2A58C-2,
§
method
“established]
sole
sumer-expectations”
applies.
test
In Suter
”
action.’
prosecute
‘product liability
Angelo Foundry
&
San
Machine Com
Int’l, Inc.,
Tirrell Navistar
248 N.J.Su-
(1979),
406 A.2d
pany, N.J.
(App.Div.1991).
A.2d 643
per.
Jersey Supreme
New
Court stated that
“product
PLA
defines the term
liabili-
product
defect is
when
“self evident”—
ty
“any
action” as
claim or action ...
i.e.,
proofs
when
“nature of
[is]
by
product, irrespective
harm caused
[manufacturing]
same as
defect cases”—
claim,
theory
except
underlying
if the
then the
can infer
defect
by
an
actions for harm caused
breach of
to meet “the reasonable ex
failed
warranty.”
Ann.
express
Stat.
170-
pectations
purchaser.”
Id. at
2A:58C-l(b)(3). Thus,
§
the PLA “effec-
Although
predates
ers’ claim “product liability CFA was not a action.” § See N.J. Stat. Ann. 58C- I would affirm judgment. The case 1(b)(2), That critical readily fact dis was tried the claim that a defect tinguishes the two District Court decisions of the cruise control caused the accident. by cited In Pfizer, Ford. Walus v. against plain- That issue was decided (D.N.J.1993), F.Supp. plaintiff sued speed tiffs. It was the of the cruise con- worry Pfizer based on normally his wreck, setting trol resulted functioning might heart valve fail at some years the control was not defective. Six future plaintiff time. Id. at 42-43. The custody after Ford I lost of this vehicle see sought to recover for his emotional dis justification no for a I ipsa res issue. And tress, not harm to the itself. Id. see no by evidence of consumer fraud Morris, Inc., at 44. In Brown v. Philip Ford. (D.N.J.2002), F.Supp.2d the fraud claim physical injuries involved caused
cigarettes, cigarettes. not harm to Id. claims,
517. Unlike those
seek for harm to Tau recover
rus, and the PLA does not cover those
damages. The PLA cannot subsume
which it explicitly excludes from its cover age. We will therefore reverse the Dis CARCAISE; David S. Leslie
trict judgment Court’s as to the CFA Carcaise, J. his wife claim. clear, however, It is far from whether CEMEX, INC., Appellant cognizable the Knosters have a claim un- der the In CFA. order to sustain a CFA claim, Contracting Erecting, plaintiff must “a Industrial establish causal Inc., Third-Party relationship between ascertainable Defendant. Notes Third, claim that false stand, rendered misleading disclosures Ford Koeppel Mr. took Before untrustworthy. The reports the NHTSA about expressed concern Knosters that arguendo assumed District Court they testimony. Specifically, his scope of NHTSA, it held that Ford misled but an inference that he would draw worried trustworthy remained because reports increase sudden-acceleration alleged “represent[ed] Ford’s omissions from an increase in media reports resulted tiny only a fraction of the universe (“SA”) Supplemental Appendix attention. inde- information that ... and the NHTSA them, According to this inference 9-10. panel experts considered.” JA pendent from “a of reason- process does not follow thus agree analysis with 32. We life;” requires ing everyday familiar did not abuse hold that the District Court knowledge psychology specialized when it admitted its discretion Adv. Fed R. Evid. 701 statistics. See Report and Denial. NHTSA the McMath re- Notes. The District Court Comm. Koeppel testify about sponded that could III. observed, he he should the correlation The Knosters also contend to infer opportunity “offer[ ] Koeppel’s testimony included inad William 11. The their own conclusions.” SA lay opinion. missible Fed.R.Evid. 701. analy- Knosters’ attorney agreed with that ruling review the district court’s ‘We (“Sure, I with problem sis. SA have no Rule opinions were admissible under I .... correlation. It’s the causation that abuse discretion.” United with.”). Nonetheless, dur- problem have a Leo, 192-93 States Koeppel examination drew ing direct