566 F.2d 541 (5th Cir. 1978), 75-3657, Bryan v. John Bean Division of FMC Corp.

Docket Nº:75-3657.
Citation:566 F.2d 541
Party Name:Dyrell Glenn BRYAN, Plaintiff-Appellee, v. JOHN BEAN DIVISION OF FMC CORPORATION, Defendant-Third-Party Plaintiff Appellant-Cross Appellee, v. MIDLAND-ROSS CORPORATION, Third-Party Defendant-Appellee Cross Appellant, Royal-Globe Insurance Company, Intervenor-Appellee.
Case Date:January 20, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 541

566 F.2d 541 (5th Cir. 1978)

Dyrell Glenn BRYAN, Plaintiff-Appellee,



Plaintiff Appellant-Cross Appellee,


MIDLAND-ROSS CORPORATION, Third-Party Defendant-Appellee

Cross Appellant,

Royal-Globe Insurance Company, Intervenor-Appellee.

No. 75-3657.

United States Court of Appeals, Fifth Circuit

January 20, 1978

Page 542

[Copyrighted Material Omitted]

Page 543

John E. Gunter, Emil C. Rassman, Midland, Tex., for John Bean Division of FMC Corp.

John H. Green, Odessa, Tex., for Dyrell Glenn Bryan.

James B. Sales, Russell H. McMains, L. S. Carsey, Houston, Tex., for Midland-Ross Corp.

George M. Kelton, Odessa, Tex., for Royal-Globe Ins. Co.

Appeals from the United States District Court for the Western District of Texas.

Before GODBOLD and CLARK, Circuit Judges, and HOFFMAN, District Judge. [*]

GODBOLD, Circuit Judge:

Plaintiff, an automobile mechanic, was injured in December 1971. A cast-iron tool known as a clevis, used in bending an automobile axle for wheel alignment, broke into pieces under pressure, and one of the pieces struck plaintiff, causing loss of an eye and allegedly causing back injuries. He sued John Bean Corporation, which had designed and distributed the clevis as part of a wheel alignment kit, basing his case on strict liability in tort under Texas law. Bean filed a third party claim for contribution or indemnity against defendant Midland-Ross, allegedly the foundry that cast the clevis for Bean.

A jury returned a verdict for plaintiff against Bean and assessed damages of $800,000. In answer to Rule 49(a) special interrogatories, set out in the margin, 1 the

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jury found that Midland-Ross had made the clevis and that both defective design and defective manufacture of the clevis were producing causes of the accident. The jury also found that Bean had failed to warn plaintiff against the dangers of foreseeable misuse of the product, but that this failure to warn was not a producing cause of the accident. Judgment was entered in favor of plaintiff against Bean on the general verdict. On the basis of the special finding of defective manufacture, the court entered judgment in favor of Bean and against Midland-Ross as a joint tort-feasor for contribution of one-half of any amount paid by Bean to plaintiff.

Both defendants appeal, alleging numerous errors. We affirm the judgment against Bean on the basis of design defect and reverse and remand for a new trial on the liability of Midland-Ross for defective manufacture.

I. Manufacturing defect

Plaintiff's metallurgical expert, Anderson, testified that the clevis broke because of manufacturing defects. It contained a dangerous crack, high levels of porosity and impurity, and was overly brittle as measured by the Brinell hardness number, a test of the hardness and tensile strength of metal. 2 On the other hand, Walters, expert witness for Midland-Ross, testified that the clevis as manufactured was sufficiently strong to sustain the stress it would have encountered in normal use in the proper manner. Walters had not examined the clevis. He at least partially based his opinion regarding the level of porosity and impurities present in the clevis on data established by two metallurgists, Lambert (expert for plaintiff) and Wiseman (expert for Bean), neither of whom testified at trial. Both Lambert and Wiseman had rendered written reports of their findings, each concluding with his opinions on the reason the clevis failed. On cross-examination of Walters, plaintiff's counsel made maximum use of the opinions expressed in the two reports. He paraphrased parts of them in questioning, he read from them verbatim, and he referred to them in his jury argument. He made much greater use of the opinions than of the data underlying them.

Midland-Ross objected on the ground that the facts recited in the reports were admissible but the opinions of the experts were not. Later Bean joined in objecting. The district court overruled, stating that the opinions were admissible because they were supporting data for Walters' opinion. The court gave what was intended to be a limiting instruction, quoted in note 6 infra. By admitting this evidence the court committed error requiring reversal of the verdict in favor of Bean and against Midland-Ross. 3

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Plaintiff argues that rule 705 of the Federal Rules of Evidence 4 permits the opinions of Lambert and Wiseman to be admitted as "underlying facts or data" on which the testifying expert (Walters) based his opinion. Rule 705, while continuing the often-criticized use of hypothetical questions, removes the need for the expert to make elaborate disclosures of the bases of his opinion. Rather, the onus of eliciting the bases of the opinion is placed on the cross-examiner. Additionally, the Advisory Committee Note to rule 705 explicitly contemplates that in attempting to impeach the opinion the cross-examiner will elicit information concerning the basis of the opinion unfavorable to the opinion itself.

The modern view in evidence law recognizes that experts often rely on facts and data supplied by third parties. See Fed.R.Evid. 703. Rules 703 and 705 codify the approach of this and other circuits that permits the disclosure of otherwise hearsay evidence for the purpose of illustrating the basis of the expert witness' opinion. See International Paper Co. v. U.S. 227 F.2d 201 (CA5, 1955) (opinion of fair value of condemned property based on similar sale); U. S. v. Featherston, 325 F.2d 539 (CA10, 1963) (same); U. S. v. Sowards, 339 F.2d 401 (CA10, 1964) (same); Brown v. U.S. 126 U.S.App.D.C. 134, 375 F.2d 310 (1966), cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967) (doctor's testimony on defendant's insanity based in part on reports of other doctors); Baltimore & O.R.R. v. O'Neill, 211 F.2d 190 (CA6, 1954), rev'd on other grounds, 348 U.S. 956, 75 S.Ct. 447, 99 L.Ed. 747 (1955) (X-ray reports). Courts have even permitted the admission of hearsay opinion on the ultimate issue if some guarantee of trustworthiness existed. See Long v. U.S. 59 F.2d 602 (CA4, 1932), cited with approval in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Since rule 705 shifts to the cross-examiner the burden of eliciting the bases of an expert witness' opinion, otherwise hearsay evidence that reveals the underlying sources of the expert's opinion should be as permissible on cross-examination as on direct. Moreover, otherwise hearsay evidence disclosing the basis of an expert witness' opinion should be admissible to impeach if strictly limited to that purpose by instructions and if, in the discretion of the judge, the impeaching evidence has sufficient guarantee of reliability that the prophylactic effect of the hearsay rule is not necessary to ensure trustworthiness.

Despite this rule of limited admissibility, we hold that the parts of the Wiseman and Lambert opinions brought out by plaintiff's counsel were improperly admitted either as evidence of the basis of the testifying expert's opinion or as impeachment evidence.

Like all exceptions to the hearsay rule the full disclosure of the source underlying a testifying expert's opinion depends upon the two critical factors of necessity and trustworthiness. See 5 J. Wigmore, Evidence § 1420-23 (Chadbourn rev. ed. 1970). Here, both necessity and trustworthiness were lacking. Plaintiff's counsel, although understandably eager to bring to

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the jury's attention the two reports that contradicted Walters, could have done so without resorting to hearsay and thereby shielding Lambert and Wiseman from cross-examination. These experts could have been called by Bryan's attorney to contradict and thus impeach Walter's testimony 5 and additionally to bring the substance of the reports to the jury. Although Federal Rule of Evidence 607, permitting impeachment of one's own witness, was not yet in effect, plaintiff would have been protected from damage by Lambert and Wiseman, had they deviated from their reports, by the accepted practice of impeachment by prior inconsistent statements. See generally Graham, Examination of a Party's Own Witness Under the Federal Rules of Evidence: A Promise Unfulfilled, 54 Texas L.Rev. 917 (1976). Thus, both the interest of plaintiff in bringing in the evidence and of defendants in cross-examination would have been protected.

Most importantly, however, the excerpts proffered by plaintiff's counsel from the Lambert and Wiseman reports lacked any independent guarantee of trustworthiness that would justify dispensing with cross-examination. When courts have permitted disclosure of hearsay underlying an expert's opinion that result has comported with the concerns of the hearsay rule because some external circumstance guaranteed the reliability of the evidence. Sometimes the evidence can be relied upon because it constitutes a routine and customary record of a business concern, see Long, supra, or because an uninterested, expert third party prepared the report, see Challoner v. Day & Zimmermann, Inc., 512 F.2d 77 (CA5), vacated on other grounds, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975), or because experts particularly doctors customarily rely upon third party reports from other experts such as pathologists and radiologists in whom the testifying expert places his trust. Cf. Box v. Swindle, 306 F.2d 882 (CA5, 1962); Fed.R.Evid. 703 & Advisory Committee Note. Here, no such extraneous indicia of reliability exist.

Moreover, to admit the hearsay opinion of an expert not subject to cross-examination goes against the natural reticence of courts to permit expert opinion unless the expert has been qualified before the jury to render an opinion. See generally Fed.R.Evid. 702. The Lambert and Wiseman opinions were brought before the jury without qualifying the experts who rendered...

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