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MESSENGER v. BUCYRUS-ERIE CO.

December 31, 1980

Milo R. MESSENGER and Connie M. Messenger, his wife, Plaintiffs,
v.
BUCYRUS-ERIE COMPANY, a corporation, Defendant



The opinion of the court was delivered by: MARSH

MEMORANDUM

In this product liability case, the jury found there was a defect in the truck-crane (hereinafter crane) manufactured by the defendant, Bucyrus-Erie Company, i. e., no back-up buzzer or back-up lights were affixed to the crane; but the jury also found that the defect was not a proximate cause of the accident which caused injuries to the plaintiff, Milo R. Messenger. Judgment was entered in favor of the defendant.

 The plaintiffs move for a new trial and judgment non obstante verdicto.

 Five reasons were assigned for new trial. Only number 5 was presented at oral argument and in plaintiffs' brief:

 
"5. The court erred in failing to allow plaintiff to offer opinion evidence by lay witnesses (sic) on the issue of causation."

 In our opinion, the motion for new trial should be denied.

 Prior to the trial, the defendant presented a Motion in Limine *fn1" requesting an order that the plaintiff "not be allowed to express self-serving speculative opinions such as those contained on pages 56 and 87 of his deposition." *fn2"

 On pages 56 and 57 of his deposition, the plaintiff stated:

 
"If it had had a back up light, I wouldn't have got hurt. I would have been under that trailer so fast you wouldn't know what happened."

 On page 87, the plaintiff stated:

 
"If the crane had a back up bell and a light on it I would have never been hurt today."

 Previously, the court had concluded that such evidence was inadmissible. *fn3"

 Before the jury was sworn, counsel for plaintiffs requested the court to permit the plaintiff, Milo R. Messenger, to testify as he had done in his deposition. The court agreed to reconsider its conclusion that the evidence was inadmissible (T. p. 10). Immediately after the plaintiff was sworn as a witness, his counsel requested a side bar conference and again proposed to elicit testimony from the plaintiff concerning "his opinion which we believe is proper under the rules with respect to what he would have done had there been a back-up buzzer or warning device on that hydrocrane truck which struck him on October 6, 1977" (T. p. 37). The court still being of the opinion that the testimony was speculative and self-serving and not opinion evidence as provided for in Rule 701, Federal Rules of Evidence, sustained the objection of defense counsel to the inadmissibility of the proffered evidence. *fn4"

 Rule 701 limits opinion testimony of a lay witness allowing it only when it is rationally based on the perception of the witness. The offer, prior to the witness's testimony, was not based on any of his "perceptions" nor was it "helpful to a clear understanding of his testimony" since the plaintiff had not testified when the offers were made. Even expert testimony is incompetent and may not be admitted into evidence if the opinion is ...


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