Morvant v. Construction Aggregates Corp.

• Decision Date: 13 February 1978
• Docket Number: No. 76-2052,76-2052
• Citation: 570 F.2d 626
• Parties: 2 Fed. R. Evid. Serv. 994 Lena V. MORVANT, etc., et al., Plaintiffs-Appellants, v. CONSTRUCTION AGGREGATES CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 626

570 F.2d 626

2 Fed. R. Evid. Serv. 994

Lena V. MORVANT, etc., et al., Plaintiffs-Appellants, v. CONSTRUCTION AGGREGATES CORPORATION, Defendant-Appellee.

No. 76-2052.

United States Court of Appeals Sixth Circuit.

Argued Dec. 6, 1977.

Decided Feb. 13, 1978.

J. Issac Funderburk, Funderburk, Conque & Doucet, Durwood W. Conque, Abbeville, La., for plaintiffs-appellants.

Robert A. Lanier, Farris, Hancock, Gilman, Branan & Lanier, Henry H. Hancock, Memphis, Tenn., for defendant-appellee.

Before PHILLIPS, Chief Judge, and ENGEL and KEITH, Circuit Judges.

ENGEL, Circuit Judge.

Michael J. Morvant drowned in the Mississippi River near Memphis, Tennessee, on March 8, 1975, when the tugboat Marco, of Morvant's widow, on behalf of herself and their three minor children and as administratrix of his estate, brought an action under the Jones Act, 46 U.S.C. § 688 (1970), and under the general maritime law against Construction Aggregates Corporation as owner of the Marco. The complaint charged both negligence on the part of the company and its other employees and unseaworthiness of the vessel. In a jury trial a verdict was rendered in favor of the plaintiff in the amount of $58,000. She appeals, claiming that the amount awarded was inadequate and resulted from numerous errors of the district court, principally in the restrictions upon the admission of evidence concerning damages. We reverse and remand for a new trial.

which he was skipper, capsized and sank, trapping him in the pilothouse.

I

Plaintiff claims the trial court erred in excluding from the courtroom her expert on marine surveying. Although she intended to call the expert as a witness, she nevertheless claims he was exempt from sequestration under subsection (3) of Rule 615, Federal Rules of Evidence. Rule 615 provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause. (emphasis added). ¹

Judge Weinstein recognizes that exception 3 of Rule 615 will be most frequently invoked in the case of expert witnesses, but observes that "(t)he responsibility for demonstrating that a given witness is essential lies with the parties." 3 Weinstein's Evidence P 615(01) at 615-9 (1976). See also Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977).

In support of her position, plaintiff now urges on appeal:

The complicated and unusual circumstances surrounding the facts of this case and the highly technical nature of the unseaworthiness issue made the advice of an expert, on the spot, essential to the presentation of plaintiff's cause. The record clearly substantiates this contention.

The difficulty with this argument is that it was never presented to the district court. Instead, plaintiff's counsel based his request in the district court upon his desire that the expert witness hear the testimony of the other witnesses so that he could testify on the issue of causation.

We perceive little, if any, reason for sequestering a witness who is to testify in an expert capacity only and not to the facts of the case. As Professor Wigmore's treatise summarizes:

The process of sequestration consists merely of preventing one prospective witness from being taught by hearing another's testimony . . . .

6 Wigmore on Evidence § 1838 at 461 (Chadbourn rev. 1976). ² Theoretically at least, the presence in the courtroom of an expert witness who does not testify to the facts of the case but rather gives his opinion based upon the testimony of others hardly seems suspect and will in most cases be beneficial, for he will be more likely to base his expert opinion on a more accurate As made before the trial court, plaintiff's argument for invoking subsection (3) appears to be based upon the language of Rule 703 of the Federal Rules of Evidence, which at least implies that experts will be present in court to hear the evidence:

understanding of the testimony as it evolves before the jury.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

This view has support from Judge Weinstein, who observes:

Certainly an expert who intends to base his opinion on "facts or data in the particular case" (Rule 703) will be unable to testify if he has been excluded (from the courtroom by an order under Rule 615).

3 Weinstein's Evidence, supra, P 615(01) at 615-8.

That an expert witness may be assisted by being present in the courtroom to hear the testimony upon which he is expected to base his expert opinion, as set forth in Rule 703, does not in our judgment furnish an automatic basis for exempting him from sequestration under Rule 615. Cf. 6 Wigmore, supra, § 1841 at 475. The reason for our conclusion is simple: had the framers intended it, they would have said so, or added a fourth exception. It is true that an expert witness does not normally testify to his firsthand knowledge of the facts of the particular case and therefore will not be in a position to conform his testimony to that of others even if so inclined. Nevertheless, the very breadth of the permissible scope of testimony by an expert witness suggests that in some circumstances at least, the trial judge could be justified in holding that his presence in the courtroom was not essential and that his exclusion from the courtroom might in a given case make a more objective and, perhaps, more honest witness out of him.

We therefore hold that where a party seeks to except an expert witness from exclusion under Rule 615 on the basis that he needs to hear firsthand the testimony of the witnesses, the decision whether to permit him to remain is within the discretion of the trial judge and should not normally be disturbed on appeal. See generally 3 Weinstein's Evidence, supra, P 615(01) at 615-8. On the other hand, where a fair showing has been made that the expert witness is in fact required for the management of the case, and this is made clear to the trial court, we believe that the trial court is bound to accept any reasonable, substantiated representation to this effect by counsel.

II

Plaintiff qualified an expert in "economic projections" for the purpose of establishing the present value of the decedent's projected earnings and from that, the pecuniary loss to the widow and children resulting from Michael Morvant's death. In addition to computing his lost wages between the date of death and the trial of the case at $18,198.86, the expert testified to a gross loss of future income of $565,465.90, measured from the trial date to a projected date of retirement at an age of 62.5 years. By totalling the projected earnings and discounting them at a rate of 5% Per annum and adding to that the amount of lost wages between the date of death and trial, the expert arrived at a sum of $287,508.71. From this he deducted 20% Representing the amount he concluded the decedent would have spent on himself. He, therefore, assumed that the remainder would be available for the support of the decedent's wife and family over the period of his work life. All of this testimony was admitted into evidence without objection by the defense, which was left free to test the accuracy of the expert's assumptions and projections by cross-examination and by any counter evidence which it might desire to introduce. On cross-examination, the defense brought out the fact that the expert's income projections were based on the questionable assumption The foregoing testimony, however, did not include any factor either for inflation or for any increase in earning capacity which might have occurred due to Morvant's developing skill and experience. ³ The effort of the plaintiff's expert to testify to future wage increases was met by the sustained objection of the defense to such testimony on the basis of Petition of United States Steel Corp., 436 F.2d 1256 (6th Cir. 1970), cert. denied, 402 U.S. 987, 91 S.Ct. 1649, 29 L.Ed.2d 153 (1971). We conclude that the trial judge's rejection of this testimony arose from an erroneous interpretation of United States Steel, especially as the concepts therein announced were further refined in Bach v. Penn Central Transportation Co., 502 F.2d 1117 (6th Cir. 1974).

that the deceased would have continued to work seven days a week for his entire work life as he had been doing at the time of his death. It also properly brought out the possibility of illness, anticipated absences for other reasons, the vagaries of the business in which Morvant was engaged, and the differences in life expectancy according to different available life expectancy tables. On cross-examination, the defense also brought out many other circumstances which might occur to a wage earner to decrease his earnings, such as mental illness, being the victim of crime, and general recessions. It also cross-examined the expert on the 5% Discount rate employed, pointing to higher yields which might be obtained from sound investments. With respect to the deduction of 20% For personal maintenance, the defense brought out the fact that Morvant's contribution would vary over the years and that he might be expected to devote more to his own needs and desires when the children were out of school and independent. In sum it can fairly be said that the plaintiff's careful direct examination of the expert witness and the equally careful cross-examination by the defense...