Mannino v. International Mfg. Co., 79-3607

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation650 F.2d 846
Docket NumberNo. 79-3607,79-3607
Parties8 Fed. R. Evid. Serv. 1246 Jennifer MANNINO, a minor, by and through her next friend and parent and natural Guardian, Richard Mannino, Plaintiff-Appellant, v. INTERNATIONAL MANUFACTURING COMPANY, Defendant-Appellee.
Decision Date09 June 1981

Michael Shafran, Bruner & Shafran, Cleveland, Ohio, for plaintiff-appellant.

Michael R. Gallagher, Gallagher, Sharp, Fulton, Norman & Mollison, Beverly Harris, Cleveland, Ohio, for defendant-appellee.

Before LIVELY and JONES, Circuit Judges; and GILMORE, District Judge. *

GILMORE, District Judge.

The basic issue in this case is whether the trial court erred when it excluded the testimony of plaintiff's expert, Dr. Eugene Bahniuk. The Court concludes it did, and reverses and remands for trial.

On August 21, 1976, Jennifer Mannino, age 14 months, was a passenger in an automobile being operated by her mother, Barbara Mannino. Jennifer was seated in an infant car seat placed in the cross-bar of the front seat, middle position of the car. The car was involved in an accident, and when the impact occurred, the strap of the baby seat in which Jennifer was seated broke and she was forcefully thrown over the seat and into the dashboard suffering injuries for which this action was brought. The infant seat, which is the subject of this litigation, was purchased by Barbara Mannino in a used condition from an unknown woman who no longer required the seat for her child. At the time Barbara Mannino bought the seat from this woman, the woman furnished an instruction sheet on its use.

At no time during the trial was the infant seat available for inspection, it having been disposed of immediately after the accident. There was purported identification of the seat through the testimony of the minor's parents and her grandmother. There was a clear factual issue as to the seat model, and as to whether the defendant was even its manufacturer.

During the jury trial, plaintiff offered the testimony of Dr. Bahniuk, a bio-mechanical engineer, who received his Ph.D. in this field in 1970, and, at the time of the trial, taught at Case Western Reserve University. Dr. Bahniuk testified that the seat was improperly designed for its intended purpose, and that proper testing would have shown deficiencies which would have enabled defendant to improve its design to compensate for those deficiencies.

After a lengthy voir dire, the trial court excluded the testimony of Dr. Bahniuk, holding, inter alia:

" we are confronted here with the expertise, in the first instance, of this witness; secondly, the qualification of the authority upon which he purportedly relies in formulating his opinion, and whether or not the plaintiff has qualified the reports, journals, and other documentation within the language of 703 as defined by (Weinstein) namely:

'As regards other experts, before they will be permitted to testify upon the basis of facts not admissible in evidence, the Court will have to find pursuant to Rule 104(a) that the particular underlying data is of a kind that is reasonably relied upon by experts in a particular field in reaching conclusions

'Since Rule 703 is concerned with the trustworthiness of the resulting opinion, the Judge should not allow the opinion if the expert can show only that he customarily relies upon such material, or that it is relied upon only in preparing for litigation. He must establish that he, as well as others, would act upon it for purposes other than testifying in a law suit.'

" apart from the testimony being to a great degree rambling and disoriented and disorganized, my primary considerations are directed to the fact that his opinion is predicated upon material that has not been properly qualified as the basis upon which an expert opinion may be predicated; that he has not established through his testimony a defective design, manufacturer or sale; nor has he established any causal relation between the accident and any alleged defective design, manufacture, or sale.

"Under these circumstances, apart from the fact that there is nothing in evidence that would identify the subject of this lawsuit, namely a defectively designed baby seat apart from that, the expert has not qualified (sic) to express an opinion and to permit him upon the voir dire that has been presented to me here today to testify before the jury would present a highly prejudicial situation. So that is the status of the expert." Appendix, pages 123 through 125.

At the end of the plaintiff's case, the trial court directed a verdict of no cause for action, and discharged the jury.

We start with the fundamental proposition that the determination of the qualifications of an expert is largely within the discretion of the trial court, and unless it has erred or abused that discretion, its determination is not subject to review. However, where the trial court has erred in excluding expert testimony, appellate courts will not hesitate to step in. Wigmore says:

" In practice, the rulings below are constantly reconsidered above, under the guise of ascertaining whether the 'discretion' has been 'abused' " 2 Wigmore on Evidence, 3rd Ed. P 561, page 642.

In Blatt v. Western Airlines, 155 F.2d 850 (CA10 1946), the Court pointed out that, while it is not the province of appellate courts to review the discretion of trial courts if exercised within legal bounds, it is the duty and right of appellate courts to determine whether, in the exercise of the discretion committed to it, the trial judge applied correct legal standards. Here we feel the trial court did not.

Rule 702 of the Federal Rules of Evidence 1 is to be broadly interpreted. The Advisory Committee's notes explain that whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier of fact. The rule is broadly phrased, and an expert is viewed, not in a narrow sense, but very broadly. As the notes point out:

" Thus within the scope of the rule are not only experts in the strictest sense of the word, e. g. physicians, physicists, and architects, but also the large group sometimes called 'skilled' witnesses, such as bankers or land owners testifying to land values."

Weinstein 2 points out that the trial judge should not rely on labels, but must investigate the competence a particular proffered witness would bring to bear on the issues, and whether it would aid the trier of fact in reaching its decision. He states that the expert need not have complete knowledge about the field in question, and need not be certain. He need only be able to aid the jury in resolving a relevant issue.

A leading case prior to the Federal Rules of Evidence is Jenkins v. United States, 307 F.2d 637 (D.C.Cir. 1962 (en Banc). There, the defendant, in a criminal prosecution, relied solely on the defense of insanity, and the trial judge excluded the testimony of three defense psychologists, because psychologists lacked medical training. The Court of Appeals reversed. It said:

" The principle to be distilled from the cases is plain: if experience or training enables a proffered expert witness to form an opinion which would aid the jury, in the absence of some countervailing consideration, his testimony will be received." Id. at 644.

In Bratt, supra, Judge Murrah, in a pre-Federal Rules of Evidence opinion, discussed the subject. He pointed out:

"It must be remembered that the court is not the judge of the quality of the evidence, nor does the witness perform the function of a juror he can only contribute something to the jury's information and if he can, he should be permitted to do so " Id. at 854.

In Knight v. Otis Elevator Co., 596 F.2d 84, (CA3 1979), the trial judge prohibited an expert witness, who was a consulting chemist and an engineer specializing in materials, engineering and safety, who had experience in machine guarding, and who had designed button guards to prevent inadvertent activation of machinery, from expressing an opinion as an expert on whether an unguarded elevator button constituted design defect, because he had no background in the design and manufacture of elevators. The Court of Appeals, recognizing that the trial judge's discretion in admitting or excluding expert testimony ordinarily would not be reversed, did reverse.

"The words of the late Judge Staley still ring true as he asserted in Trowbridge v. Abrasive Company of Philadelphia, 190 F.2d 825, 839 n.9 (3d Cir. 1951):

'If we were to declare as a rule of law that one must actually have practical experience in a given industry in order to qualify as an expert in litigation involving its products, we might very well place an onerous burden on plaintiffs in some cases. Where the industry is small and tightly knit, it may be very difficult for the plaintiff to obtain the services of an expert currently employed therein, and it might be equally difficult to find someone who was formerly employed in the industry. But the key experts of an industry would normally be available to the defendant.' " Id. at 88.

In United States v. Barker, 553 F.2d 1013 (CA6 1977), this Court pointed out that a proposed expert should not be required to satisfy an overly narrow test of his own qualifications. It said:

"According to the Federal Rules of Evidence, a proposed expert witness 'should not be required to satisfy an overly narrow test of his own qualifications' An expert need not have certificates of training nor membership in professional organizations Nor need he be, as the trial court apparently required, an outstanding practitioner in the field in which he professes expertise. Comparisons between his professional stature and the stature of witnesses for an opposing party may be made by the jury, if it becomes necessary to decide which of two conflicting opinions to believe. But the only question for the trial judge who must decide whether or not...

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