The opinion
TJOFLAT, Circuit Judge,
concurring:
Although I agree with the majority that the time has now arrived for reconsideration of Johnson v. Penrod Drilling Company, 510 F.2d 234 (5th Cir. 1975), I write separately to make clear that the majority opinion should be read as doing nothing more than overruling Penrod’s flat proscription of competent, otherwise admissible evidence on inflation. Henceforth, the Federal Rules of Evidence alone will govern the admissibility of such evidence, and render appropriate a jury instruction on inflation commensurate with the evidence presented.
I.
Appellees are justified in pointing out that neither the Pre-trial Stipulation, Record, vol. 1, at 13, nor the Pre-trial Order, Record, vol. 1, at 14, gives any indication that the plaintiffs sought to raise the inflation issue at trial. Indeed, plaintiffs rested their case without an offer of proof on inflation, which clearly would have been the most appropriate way to preserve the Pen-rod question for appeal. Although appellants did not do all that they should have done to preserve the inflation issue, their proffer was sufficient to satisfy the Federal Rules of Evidence. See Fed.R.Evid. 103(a)(2). The proffer made during the cross-examination of the defendant’s investment expert, Gerald Powers, was probably sufficient to establish a groundwork for appeal, although it should not be considered as a guide for the district courts.
On cross-examination, plaintiffs’ counsel asked Powers: “Are you familiar with the general rates of inflation as predicted by the Federal Government?” Record, vol. 7, at 172. The court sustained the defendant’s general objection. After an extended colloquy on whether the defendant had “opened the door” to inflation questions on cross-examination by putting the issue before the jury on direct, the court ruled that he had not, and then sustained the objection to further inflation inquiry on Penrod grounds. It should be emphasized that at no time did the defendant make a specific objection to the line of questioning, or the subsequent proffer, as improper because they were beyond the scope of the direct examination. Contrary to the claim in the Supplemental Brief of Defendant on Rehearing En Banc at 7, the record shows that counsel’s argumentation went exclusively to whether defendant had opened the door to questioning otherwise clearly barred by the Penrod rule of exclusion. Similarly, the record demonstrates that the court excluded such evidence solely on Penrod grounds, without any consideration of the potential objection that plaintiffs had rested their case and could not now delve into these matters. Record, vol. 7, at 172, 179, 181.
At that point, plaintiffs’ counsel made a speaking proffer, in the presence of the witness, as to the rationale for including inflation in a damages award and various estimated rates of inflation. See Record, vol. 7, at 179-80, 182-83; Majority Opinion at 326. Defendant did not object contemporaneously to the adequacy of the proffer and did not challenge the qualifications of the expert to give this testimony. Nor did he seek re-direct examination on this offer of proof or offer any rebuttal of the witness’ “testimony” or its probative value. Thus, all these potential objections to plaintiffs’ offer of proof must be considered to have been waived. See Fed.R. Evid. 103(a)(2). We agree, therefore, with the majority that counsel for plaintiffs did succeed in creating a record to “challenge or at least find an exception to Penrod,” Majority Opinion at 326, although their effort to do so was tardy.
*328 II.
I emphasize the limited nature of the court’s holding today: evidence concerning the impact of inflation on recoveries of lost future wages will be admitted insofar as it conforms to the Federal Rules of Evidence, and a jury instruction on inflation will be appropriate if a predicate of competent, relevant and otherwise admissible evidence has been established. As the Ninth Circuit Court of Appeals has written, “[W]e allow the trier of fact in awarding damages to take into account only such estimates of future changes in the purchasing power of money as are based on sound and substantiated economic evidence, and as can be postulated with some reliability.” United States v. English, 521 F.2d 63, 75-76 (1975).
Specifically, the trial court should ensure that the expert testimony concerning inflation meets the requirement of Fed.R.Evid. 702:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Once rule 702 has been satisfied, the trial court should also exercise sound discretion to ensure compliance with Fed.R.Evid. 403:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .
This rule is particularly important with a complex issue such as inflation, where confusing expert testimony might well hinder rather than assist the trier of fact. The application of these evidentiary filters is critical if today’s holding is to enhance the accuracy of damages awards in this circuit.