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Asplundh Mfg. Div., a Div. of Asplundh Tree Expert Co. v. Benton Harbor Engineering

filed: June 20, 1995; As Amended June 26, 1995.


On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Civ. No. 89-cv-00252).

Before: Becker, Alito, Circuit Judges, and Gibson, Senior Circuit Judge*fn*

Author: Becker

BECKER, Circuit Judge.

The defendant, Benton Harbor Engineering ("Benton Harbor"), appeals from an order of the district court denying its motion for a new trial, and also from a judgment against it on a contribution claim brought by Asplundh Tree Expert Co. ("Asplundh") and by National Union Fire Insurance Company of Pittsburgh ("National Union"), Asplundh's liability insurance carrier. Asplundh and National Union sought to recover some or all of their costs in settling a wrongful death suit brought against Asplundh by the estate of Jeffrey Sackerson, who was killed when an Asplundh aerial lift in which he was working fractured (Benton Harbor having manufactured the component part of the aerial lift which allegedly failed). Benton Harbor's principal argument on appeal is that the district court erred in permitting Asplundh to adduce lay opinion testimony pursuant to Federal Rule of Evidence 701 regarding what appear to be complex technical issues concerning the cause of the metal failure.

Rule 701, which contemplates admission of lay opinions rationally based on personal knowledge so as to be helpful to the trier of fact, was primarily designed to allow lay individuals to express opinions that are in reality only a shorthand statement of fact. However, this court, like other courts, has commonly interpreted the rule to permit individuals not qualified as experts, but possessing experience or specialized knowledge about particular things, to testify about technical matters that might have been thought to lie within the exclusive province of experts. This flexible, arguably expansive, interpretation of Rule 701 appears to be consistent with its text. Where, however, a party proffers a witness expressing an opinion on matters such as the design of hydraulic cylinders or the cause of metal failure, the trial court must be rigorous in assuring that the lay witness satisfies the strictures of Rule 701. In particular, the proponent of technical lay opinion testimony must show that the testimony is based on sufficient experience or specialized knowledge and also show a sufficient connection between such knowledge or experience and the lay opinion such that the testimony may be fairly considered to be "rationally based on the perception of the witness" and truly "helpful" to the jury.

Given the standard we articulate today for the admission of lay opinion evidence of a technical nature, we conclude that the district court's ruling was based on an impermissible interpretation of Rule 701, because the court failed to examine with sufficient rigor whether the testimony in question was informed by sufficient experience or specialized knowledge. More particularly, in order to satisfy the rationally derived and helpfulness standards of Rule 701, Asplundh needed to demonstrate that the witness possessed sufficient experience or specialized knowledge which qualified him to offer a technical opinion regarding the cause of metal failure and the design of hydraulic cylinders. While a lay witness could acquire this additional insight either by formal education or practical experience, it appears the witness at issue simply possessed neither. Because the admission of the testimony was not harmless, we will reverse the judgment of the district court and remand for further proceedings.

Although Asplundh and National Union cross appeal, arguing that the district court erred in failing to award prejudgment interest, we do not, in view of our result, reach this question.

I. Facts and Procedural History

Jeffrey Sackerson was killed while operating an aerial lift, manufactured by Asplundh, which was mounted onto a truck chassis and used in tree trimming operations. At the time, Sackerson was employed by the city of Portland, Oregon, which owned, operated, and maintained the aerial lift. When Sackerson's estate filed a wrongful death suit against Asplundh, Asplundh and its insurer, National Union, brought a third-party action seeking contribution and indemnity from Benton Harbor, the manufacturer of the lower boom cylinder containing the piston rod which allegedly fractured and caused the accident. The jury returned a verdict for Asplundh and National Union, finding Asplundh eighty percent responsible and Benton Harbor twenty percent responsible. The district court entered judgment for Asplundh and National Union in the amount of $185,881.60, twenty percent of the Sackerson settlement. Post-trial motions were filed by both parties. Asplundh and National Union sought prejudgment interest, and Benton Harbor sought a new trial based on alleged error in admitting the lay opinion testimony of Michael Jones. Both motions were denied by the district court. These appeals followed.

Jones, the witness whose testimony is at issue, had been fleet maintenance supervisor for the City of Portland for more than ten years at the time of the accident. Jones's responsibilities covered all city equipment, including the Asplundh aerial lift. He supervised between sixty and one hundred employees, six or seven city repair shops, and the maintenance of 1385 pieces of equipment.

After the accident, Jones and his employees took apart and inspected the aerial lift's boom assembly in the City of Portland's shop. During this inspection, Jones observed the rod from a distance of about fifteen inches. In his deposition, Jones stated his opinion that a component of the lower boom assembly -- the rod end -- had fractured. The rod end was a threaded metal rod that was screwed into a threaded metal casing called the rod cylinder. A hole was drilled through both the casing and the rod end, and a metal pin was inserted through the hole. See App. at 315.

Jones expressed the opinion that the fracture was caused by metal fatigue and was attributable to the design of the rod end. Id. at 161, 167. Specifically, he stated that there was a "problem" because Benton Harbor's design called for a hole to be drilled through the rod end at a point where it was threaded. Id. Moreover, Jones noted that the cylinder rod had oxidized around a portion of the break which was a different, duller color than the rod's fresh break. From this, Jones concluded that the break occurred in stages. Jones also related that the break was in a threaded area where a hole had been drilled through the rod. Jones concluded that the rod fatigued inside the rod eye, causing the accident, stating that the stop block on the lower boom cylinder rods did not contribute to the accident.*fn1

In particular, Jones attributed the accident "to the way the rod was drilled through, and the fact that the rod eye was screwed on on a threaded -- two threaded surfaces." App. at 167; App. at 160-61 ("The reasons [for the accident] are two: one, the hole through the pin caused . . . the rod to be weakened and, two, the threads . . . on the rod itself caused the breaking point. They were sharp, and it broke right at the point where all of those things intersected. That was the problem. There's no doubt in my mind about it. . . ."). He questioned the appropriateness of this rod end design, stating that before his examination he "had no idea that this thing was threaded on and then drilled and pinned, up to that point," since he "had never seen a cylinder that size configured that way." Id. Jones reiterated that he "never saw other cylinders configured that way," and that he "knew how other cylinders were configured differently," since he was a production control manager for a company that produced hydraulic cylinders. Id. Moreover, Jones asserted expertise in this area, declaring, "I think I know how to make hydraulic cylinders." Id.

Key portions of Jones's deposition were read to the jury over Benton Harbor's objection. The district court overruled the objections to the reading of the deposition testimony, allowing Jones to testify as a lay witness expressing an opinion under Rule 701. FED. R. EVID. 701. Benton Harbor argues that Jones's technical deposition testimony is not the type of lay opinion evidence properly admissible under Rule 701. Our review is plenary, since the district court's ruling turns on an interpretation of Rule 701, which would permit the admission of technical lay opinion evidence in this case. A determination regarding the scope of evidence properly admitted under a Federal Rule of Evidence is a question of law subject to plenary review. See DeLuca v. Merrell Dow Pharm. 911 F.2d 941, 945 (3d Cir. 1990); U.S. v. Furst, 886 F.2d 558, 571 (3d Cir. 1989) ("To the extent that the district court's admission of [evidence] was based on an interpretation of the Federal Rules of Evidence, we exercise plenary review.").

II. The Rule 701 Jurisprudence


In determining whether Jones's opinion testimony was properly admitted by the district court, we must determine the scope of Federal Rule of Evidence 701, which provides:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

FED. R. EVID. 701.

Rule 701 represents a movement away from the courts' historically skeptical view of lay opinion evidence. At common law, witnesses not qualifying as experts were not permitted to draw Conclusions which could be characterized as opinion testimony, but rather were required to limit their testimony to facts, those things "they had seen, heard, felt, smelled, tasted, or done." Hon. Charles R. Richey, Proposals To Eliminate the Prejudicial Effect of the Use of the Word "Expert" Under the Federal Rules [of] Evidence in Civil and Criminal Jury Trials,$=E154 F.R.D. 537, 542#=F (1994) ("Mere opinions were considered unreliable bases for testimony.").

This rigid distinction between fact and opinion led to numerous appeals and pervasive criticism by commentators. See generally 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE P 701[01] (1994) [hereinafter WEINSTEIN]. Wigmore declared, in the first edition of his treatise, that this distinction "has done more than any one rule of procedure to reduce our litigation towards a sense of legalized gambling." 3 JOHN H. WIGMORE, EVIDENCE § 1929, at 2563 (1st ed. 1904); see also WILLARD L. KING & DOUGLAS PILLINGER, OPINION OF THE COURT OPINION EVIDENCE IN ILLINOIS 8 (1942) ("The American courts have had a great struggle with a rule which appeared to require them to admit statements of fact and exclude all inferences of the witness. Such a rule is quite impossible of application: all statements contain inferences."); JAMES B. THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 524 (1898) ("In a sense all testimony to matter of fact is opinion evidence, i.e. it is a Conclusion formed from phenomena and mental impressions.").

Characteristically, however, the most eloquent criticism of this common-law restriction on lay testimony was made by Judge Learned Hand:

Every Judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the "facts" in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose.

Central R.R. Co. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926). Judge Hand also stated:

The truth is, as Mr. Wigmore has observed at length, that the exclusion of opinion evidence has been carried beyond reason in this country, and that it would be a large advance if courts were to admit it with freedom. The line between opinion and fact is at best only one of degree, and ought to depend solely upon practical considerations, as, for example, the saving of time and the mentality of the witness.

Id. (citation omitted).

These concerns about the restrictions on lay opinion testimony, combined with a more general liberalization in those rules of evidence that operated to deprive the fact-finder of relevant evidence,*fn2 led to the adoption of Rule 701. The Advisory Committee Note to the rule reflects the fact that Rule 701's liberalization of the admissibility of opinion evidence is rooted in the modern trend away from fine distinctions between fact and opinion and toward greater admissibility, tempered with an understanding that the adversary process, and more specifically, cross-examination will correct any problems:

The rule retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event.

Limitation (a) is the familiar requirement of first-hand knowledge or observation.

Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or Conclusion. While the courts have made concessions in certain recurring situations, necessity as a standard for permitting opinions and Conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration. Moreover, the practical impossibility of determining by rule what is a "fact," demonstrated by a century of litigation of the question of what is a fact for purposes of pleading under the Field Code, extends into evidence also. The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness. If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule.

FED. R. EVID. 701 advisory committee's note (citations omitted).

The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences. See Mason Ladd, Expert Testimony, 5 VAND. L. REV. 414, 417 (1952). The more liberal approach to lay opinion testimony of this type gained acceptance as a rule of "convenience," which allowed for "'shorthand renditions' of a total situation, or [for] statements of collective facts." 1 MCCORMICK ON EVIDENCE 44 & n.16 (4th ed. 1992); see also Mark McCormick, Opinion Evidence in Iowa, 19 DRAKE L. REV. 245, 248 (1970) (viewing this rule as allowing for a "shorthand rendering of the facts").

As recognized by Professor Saltzburg, testimony that a person was "excited" or "angry" is more evocative and understandable than a long physical description of the person's outward manifestations. STEPHEN A. SALTZBURG ET. AL., FEDERAL RULES OF EVIDENCE MANUAL 1032 (6th ed. 1994) [hereinafter SALTZBURG]. For example, a witness who testifies that an individual whom he saw staggering or lurching along the way was drunk is spared the difficulty of describing, with the precision of an orthopedist or choreographer, the person's gait, angle of walk, etc. See, e.g., United States v. Mastberg, 503 F.2d 465 (9th Cir. 1974) (permitting under Rule 701 the testimony of a customs inspector that the defendant appeared nervous); State v. Hall, 353 N.W.2d 37, 43 (S.D. 1984) (permitting police officers to give lay opinion concerning defendant's intoxicated state)*fn3 ; Kerry Coal Co. v. United Mine Workers, 637 F.2d 957, 967 (3d Cir.) (allowing the admission of testimony that plaintiff's employees were "nervous and afraid" as a shorthand report of witnesses' observations of employee reactions), cert. denied, 454 U.S. 823, 70 L. Ed. 2d 95, 102 S. Ct. 109 (1981).

Perhaps the best judicial description of this type of testimony under Rule 701 is found in United States v. Yazzie, 976 F.2d 1252 (9th Cir. 1992). Yazzie was charged with statutory rape under a federal statute that permitted a defense of reasonable mistake as to the age of the minor. At trial, Yazzie asserted that he reasonably believed that the minor, age fifteen-and-a-half, was over the statutory age of sixteen. In support of this contention, Yazzie called several witnesses who offered to testify that, as of the date of the incident, their observations caused them to believe the minor to be between the age of sixteen and twenty. The trial court excluded this testimony as impermissible lay "opinion" and limited the witnesses' testimony to "facts," such as that the minor smoked cigarettes, wore make-up, and drove a car. The Court of Appeals reversed, stating:

We understand Rule 701 to mean that opinions of non-experts may be admitted where the facts could not otherwise be adequately presented or described to the jury in such a way as to enable the jury to form an opinion or reach an intelligent Conclusion. If it is impossible or difficult to reproduce the data observed by the witnesses, or the facts are difficult of explanation, or complex, or are of a combination of circumstances and appearances which cannot be adequately described and presented with the force and clearness as they appeared to the witness, the witness may state his impressions and opinions based upon what he observed. It is a means of conveying to the jury what the witness has seen or heard.

Id. at 1255 (quoting United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982) (internal quotation marks omitted)). The court concluded that the testimony of the witnesses satisfied Rule 701's requirements:

Here, the opinion testimony not only meets the requirements of sub-part (a) of Rule 701, but of both the alternative sub-parts of (b). The testimony helps in the understanding of the witnesses' descriptive testimony and in determining a critical fact at issue -whether it was reasonable for Yazzie to believe that the minor was sixteen or older.

In the case before us, the jurors could not themselves assess how old the minor looked at the time of the incident: by the time of the trial, the minor was almost seventeen years old, and her appearance was undoubtedly substantially different than it had been on the night in question, a year and a half earlier. Thus, the jurors were wholly dependent on the testimony of witnesses. Yet the witnesses were permitted to testify only to the minor's describable features and behavior. Their testimony was no substitute for a clear and unequivocal statement of their opinions. It did not tell the jury that these witnesses believed the minor to be at least sixteen years old at the time of the incident.

Id. (footnote omitted).

Other examples of this type of quintessential Rule 701 opinion testimony include identification of an individual,*fn4 the speed of a vehicle,*fn5 the mental state or responsibility of another,*fn6 whether another was healthy,*fn7 the value of one's property,*fn8 and other situations in which the differences between fact and opinion blur and it is difficult or cumbersome for the examiner to elicit an answer from the witness that will not be expressed in the form of an opinion.*fn9 See generally SALTZBURG, supra, 1031-36; WEINSTEIN, supra, P 701[02]. These cases, it is important to add, all meet the core definitional terms of Rule 701 -- the opinion is based upon personal knowledge, is rationally based thereon, and is helpful to the trier of fact.


While many, if not most, of the cases decided under Rule 701 are of the genre just described, the jurisprudence has expanded beyond this core area to permit lay persons to express opinions that are not shorthand statements of fact, so long as the personal knowledge, rational basis, and helpfulness standards of Rule 701 are met. In particular, courts have permitted witnesses with firsthand knowledge to offer lay opinion testimony where they have a reasonable basis -- grounded either in experience or specialized knowledge -- for arriving at the opinion expressed. A Conclusion by the trial court that the witness possessed sufficient experience or specialized knowledge has thus often been used to determine that the witness's opinion testimony satisfies the requirements that the opinion be both "helpful to a clear understanding . . . of a fact in issue" and "rationally based" upon the witness's perception, as expressed in the text of Rule 701.

Rule 701 cases satisfying these requirements are arrayed along a spectrum, ranging from what might be described as modest departures from the core area of lay opinion testimony, described above, to those which approach the ambit of Rule 702 expert opinion. A good example of the former is our opinion in Teen-Ed, Inc. v. Kimball International, Inc., 620 F.2d 399 (3d Cir. 1980) in which we held that a lay opinion from the plaintiff's accountant and bookkeeper was proper:

The personal knowledge of appellant's balance sheets acquired by Zeitz as Teen-Ed's accountant was clearly sufficient under Rule 602 to qualify him as a witness eligible under Rule 701 to testify to his opinion of how lost profits could be calculated and to ...

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