Opposition Brief — Morgan v. Firestone Tire & Rubber Co.

Supreme Court, U.S.

FILED

’ AUS 6 1985

No. 85-25 JOSEPH F. SPANIOL, JR,

ES TAS

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

JOANN MORGAN,

Petitioner,

VS.

FIRESTONE TIRE & RUBBER COMPANY,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

CHARLES M. STAPLETON

Martin, Snow, Grant & Napier

240 Third Street

Macon, Georgia 31202-1606

Counsel of Record for Respondent

912-743-7051

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

~ BEST AVAILABLE COPY &

TABLE OF CONTENTS

Page

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en C00 UE eg ck coc ncoccvesevessves 1

REASONS FOR DENYING THE WRIT.................

I. THE CIRCUIT COURTS ARE UNIFORM IN THEIR

GUIDELINES FOR DETERMINING ADMISSIBILITY

OF OUT-OF-COURT EXPERIMENTS .............. 4

II. THE ELEVENTH CIRCUIT’S PER CURIAM AFFIR-

MANCE WITHOUT OPINION DOES NOT CONFLICT

WITH DECISIONS OF OTHER CIRCUITS ......... 12

III. ADMISSIBILITY OF OUT-OF-CCGURT EXPERIMENTS

iS A SUBJECT FOR THE BROAD DISCRETION OF TRI-

ot Saar eo chee dew rere anes 14

I a a a ea ehae caeee § 16

ii

TABLE OF AUTHORITIES

CASES Page

Ballou v. Henri Studios, Inc., 656 F.2d 1147 (5th Cir.,

BOE) nv'ecucnSucebs peanne eee aera 15

Brandt v. French, 638 F.2d 209 (10th Cir., 1981) ..... 10

Collins, by and through Kay v. Seaboard Coastline RR

Company, 675 F.2d 1185 (11th Cir., 1982) ....... 14

Dent v. Riddle, 664 F.2d 1 (1st Cir, 1981) ........... 15

Gladhill vs. General Motors Corporation, 743 F.2d. 1049

CGE SA, Te ssksks coxisdisgnkoaves 5, 6, 7, 8, 9, 10

Hale vs. Firestone Tire and Rubber Company, 756 F. 2d.

ho Bi Pe | eee eer 5, 6, 7, 8, 9, 11

Jackson vs. Fletcher, 647 F. 2d. 1020 (10th Cir., 1981) . 5, 9

Johnson v. William C. Ellis & Sons Iron Works, 604 F.2d

960-(oth-Gir_1979) sss 16

Millers’ National Insurance Company, Chicago, Illinois

v. Witchita Flour Mills Company, 257 F.2d 93 (10th

ee rr rs rae 16

Nanda vs. Ford Motor Company, 509 F. 2d. 213 (7th Cir.,

RTE) oon. ivy ncvavanne San bapudesele tea e erie os 5,9

NLRB v. Sears, Roebuck & Company, 421 U.S. 132, 95

S.Ct. 1604, 44 L.BG.20 ZO (ISIS) .casvccreccccss 13

Ramsey v. United Mine Workers of America, 401 U.S.

302, 91 S.Ct. 658, 28 L.Ed.2d 64 (1971) ......... 13

Ramseyer v. General Motors Corporation, 417 F.2d 859

(Sth CURT SOG ska Sebdun dieses seaesweiesaeees 9, 14

Randall v. Warnaco, Inc., Hirsch-Wise Division, 677

F.2d EROS Cte Coe, EOE) iv kcecicnvesaccvcavess 11

Robbins vs. Whelan, 653 F. 2d. 47 (1st Cir.) cert. denied,

454 U.S. 1123, 102 S.Ct. 972, 71 L. Ed. 2d. 110

CHOBE oo vs 6nd cic bdnus kaa eee 5, 16

Szeliga vs. General Motors Corporation, 728 F.2d. 566

(let Cin., 066) sce isakivcavieee 5, 6, 8, 9, 14, 16

iii

Table of Authorities Continued

Page

United States v. 110 Bars of Silver, 3 Crucibles of Silver, 11

Bags of Silver Coins, 508 F.2d 799 (5th Cir.), cert.

denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89

Ree rr rr re Terre rrr errr ee 14

United States v. Adcock, 651 F.2d 338 (5th Cir., 1981). 15

United States v. Authement, 607 F.2d 1129 (5th Cir.,

Ne eh aake’s 15

United States v. Blevinal, 607 F.2d 1124 (5th Cir., 1979) 15

United States v. Day, 591 F.2d 861 (D.C. Cir., 1978) .. 15

United States v. Long, 574 F.2d 761 (8rd Cir., 1978) .. 15

United States v. Robinson, 560 F.2d 507 (2nd Cir., 1977) 15

Young vs. Illinois Central Gulf RR Company, 618 F.2d.

TT cdg eh aucewess 5, 9, 14

STATUTES AND RULES

ce ecacescsseeesaevs 14

Dee bask veaveeeen ewe 14

Ne ee pe acbecabuthawees 14, 15

OTHER AUTHORITY

Graham, Handbook of Federal Evidence ............. 15

Wright & Graham, Federal Practice and Procedure ... 15

Weinstein & Berger, Weinstein’s Evidence ........... 15

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STATEMENT OF THE CASE

Petitioner filed a diversity products liability lawsuit in

1983 in the U. S. District Court for the Southern District of

Georgia, Savannah Division. The lawsuit alleged that a

defective tire manufactured by a subsidiary of Respondent

was the proximate cause of the death of Petitioner's hus-

band. At trial, Petitioner proceeded on the sole theory of

strict liability. R. 8, 53, 345. There was ajury verdict in favor

of Respondent and a judgment was entered on that jury

verdict. R. 372. The Eleventh Circuit Court of Appeals

entered a per curiam decision without opinion affirming the

judgment in the trial court. The Court of Appeals denied

Petitioner's petition for rehearing and suggestion for re-

hearing en banc.

As in most products liability cases, the trial of the case

became a “battle of the experts.” The line-up of expert

witnesses was as follows:

FOR THE PETITIONER: Laurence Keltner (T. at 180.)

Leonard Skolnick (T. at 547.)

FOR THE

RESPONDENT: James D. Gardner (T. at 354.)

COURT-APPOINTED

EXPERT: Thomas Baker (T. at 479.)

At trial, Petitioner maintained that the tire in question

was defective and that said defectiveness resulted in the

death of her husband. R. 3. Respondent maintained that the

tire was not defective, but failed due to a long history of

under-inflation. T. 43-44. Respondent supported its theory

of under-inflation with expert testimony to the effect that

the loose cords and pressure grooves found in the tire were

evidence of under-inflation. T. 411, 485, 527. In anticipation

of this defense, Petitioner put on evidence in her case in

chief to the effect that the loose cords and pressure grooves

found in the tire were the result of run-flat damage following

the blowout and not under-inflation.' T. 240, 244, 256. Thus,

the origin of the loose cords and pressure grooves became an

issue at trial.

Respondent’s expert, Gardner, and the court-appointed

expert, Baker, testified that the loose cords and pressure

grooves found in the tire could not have been a result of the

blowout and run-flat of the tire. T. 382, 411, 494-495. As a

basis for their opinion in this regard, Gardner and Baker

each testified that they had conducted numerous tests in

which they purposely caused the blowout of tires and then

examined the damage resulting therefrom. T. 382, 458, 495.

A video and test tire from one such test were offered in

illustration of Gardner's testimony. T. 253-254, 383, 385. The

videotape recorded an out-of-court experiment in which a

truck was purposely run over a foreign object so that the

object caused the blowout of one of the tires on the truck.

The film then showed the blown tire being run flat for a

distance of 1200 feet before the truck came to a stop. The

videotape did not in any way depict or portray any injury to

person or property other than the tire itself. T. 384-385. The

film was three to four minutes in length. T. 383. At no point

did Respondent maintain that the video or test tire were

intended to be a re-enactment of the accident which was the

subject of the trial. T. 382-386. Rather, the video and test

tire depicted therein were offered to illustrate Gardner's

‘In fact, Petitioner's expert proffered photographs of a tire of

unknown origin, size, etc. as “illustrative” evidence of the cause of

pressure grooves. T. 252-254. That evidence, going to the same issue

upon which Respondent’: illustrative evidence was later submitted,

was allowed in by the trial court over Respondent's objection regard-

ing lack of similarity and before Respondent presented the video and

test tire which Petitioner now challenges. Thus, the use of illustrative

evidence by the experts was opened by Petitioner herself in the trial.

testimony concerning physical characteristics of blown

tires. T. 253-254, 385, 410-411.

Petitioner objected to the admissibility of the video and

test tire on the grounds of lack of similarity to the facts in

litigation. T. 403. Prior to ruling on the admissibility of the

video and test tire, the judge sent the jury out of the

courtroom and viewed the video film and heard extensive

voir dire examination of all three experts as to the sim-

ilarities and differences between the test blowout and the

blowout on decedent's truck. T. 384-402. Respondent's ex-

pert, Gardner, and the court-appointed expert, Baker, both

testified that the test blowout and the blowout of the Morgan

tire would yield the same physical evidence, or lack thereof,

in the tires. It was the opinion of Gardner and Baker that

the results of the test blowout would not be affected by

variances in the number of cords in the tire, the road condi-

tions present at the blowout, or any other conditions not

duplicated in the illustration. T. 384-397, 401-4402. Under

voir dire by the court, the court-appointed expert said that

the video film and test tire would increase the knowledge of

the jury in deciding the case. T. 402. On the other hand,

Keltner, Petitioner's expert, testified that the experimental

blowout would be misleading. T. 397-401.

Thus, there was a dispute between the experts on the

evidentiary value of the video and test tire. After studying

case law cited to the court by counsel for Petitioner, and

after reviewing the film and hearing voir dire examination of

the experts, the trial court ruled that the evidence should be

admitted. T. 403.

When the jury returned to the courtroom, the court gave

contemporaneous cautionary instructions to the jury in

which the differences between the illustrative evidence and

circumstances of the Morgan blowout were emphasized. T.

404-405. Counsel for Petitioner extensively cross-examined

Gardner on the differences between the test evidence and

the Morgan blowout in the presence of the jury. T. 460-462.

Petitioner also called her own expert in rebuttal to empha-

size those differences. T. 539-542. Finally, in its charge to

the jury, the court instructed the jurors that they should

look to each expert’ means of knowledge of the facts to

which that expert’ testimony related. T. 563.

Petitioner enumerated as error to the Eleventh Circuit

Court of Appeals the admission of the video and test tire

into evidence. (Petitioner's Brief to the Eleventh Circuit, p.

1). The Circuit Court of Appeals rejected Petitioner's appeal

in a per curiam affirmance without opinion. (Brief of Peti-

tioner, Appendix A). The Circuit Court denied Petitioner's

petition for rehearing and suggestion for rehearing en banc.

(Brief of Petitioner, Appendix B). Petitioner now seeks a

writ of certiorari from this Court on the argument that the

decision of the Eleventh Circuit conflicts with decisions of

other circuits. (Brief of Petitioner, p. 2).

REASONS FOR DENYING THE WRIT

I. The Circuit Courts Are Uniform In Their Guidelines

For Determining Admissibility Of Out-Of-Court

Experiments.

Petitioner alleges conflict among the circuits on the issue

of admissibility of out-of-court experiments and then at-

tempts to bootstrap the case sub judice to the alleged

conflict among the other circuits. (Brief of Petitioner, p. 7).

On the contrary, there is no conflict among the circuits in

this regard. The circuits rely upon common principles of

admissibility in applying their discretion to the facts of each

case on this issue.

All of the circuit courts require some degree of similarity

before admitting experiments into evidence. The distinction

lies in the degree of similarity required for experiment

evidence introduced to illustrate testimony concerning

physical principles on the one hand, and for experiment

evidence attempting to reconstruct the facts in litigation on

the other. Szeliga vs. General Motors Corporation, 728

F.2d. 566, 567 (1st Cir., 1984); Gladhill vs. General Motors

Corporation, 743 F.2d. 1049, 1051 (4th Cir. , 1984); Young vs.

Illinois Centra! Gulf Railroad Company, 618 F.2d. 382,

338 (5th Cir., 1980); Nanda vs. Ford Motor Company, 509 F.

2d. 213, 223 (7th Cir., 1974); Jackson vs. Fletcher, 647 F. 2d.

1020, 1027 (10th Cir., 1981). Substantial similarity is re-

quired of evidence of prior accidents or out-of-court experi-

ments attempting to re-create the accident in litigation.

Hale v. Firestone Tire & Rubber Company, 756 F.2d 1322

(8th Cir. 1985); Gladhill v. General Motors Corp., 743 F.2d

1049 (4th Cir. 1983). Some similarity amounting to mere

relevance is required of out-of-court experiments offered to

illustrate testimony of physical principles. Szeliga v. Gener-

al Motors Corp., 728 F.2d 566 (1st Cir., 1984). These are the

principles which the Circuit Courts of Appeal follow in

determining admissibility of experimental evidence.

Beyond these principles, “each case must be judged under

its own particular facts taking into account the specific

purposes for which this type of evidence is submitted.”

Szeliga vs. General Motors Corporation, 728 F. 2d. 566, 567

(ist. Cir. 1984) [quoting Robbins vs. Whelan, 653 F. 2d. 47,

49-50 (1st Cir.) cert. denied, 454 U.S. 1123, 102 S.Ct. 972, 71

L. Ed. 2d. 110 (1981)}.

Petitioner maintains that some circuits follow these prin-

ciples of admissibility and other circuits reject them. More

particularly, Petitioner maintains that the Circuit Courts of

Appeal are inconsistent in requiring similarity before admit-

ting experimental evidence and, secondly, that the appellate

courts are inconsistent in recognizing a distinction between

the degree of similarity required for admission of out-of-

court experiments offered to illustrate physical principles

and the degree of similarity required for admission of out-of-

court experiments offered to re-create the accident in litiga-

tion. As hereinafter shown, these contentions of conflict

among the Circuits are unsupported.

A. The Appellate Courts Are Consistent As To The Sim-

ilarity Requirement.

Petitioner attempts to make out an apparent conflict on

the requirement of similarity by comparing two cases on the

admissibility of video experiments re-creating the facts in

litigation,” on the one hand, with a case on the admissibility

of a video experiment illustrating physical principles on the

other hand.* (Brief of Petitioner, pp. 7-9). Petitioner correct-

ly notes that Hale vs. Firestone Tire and Rubber Company,

756 F.2d. 1322 (8th Cir., 1985), and Gladhill vs. General

Motors Corp., 743 F. 2d. 1049 (4th Cir., 1983), held that

there must be substantial similarity between the out-of-

court experiments offered in those cases and the facts in

litigation. The evidence offered in each of these two cases

was all either evidence of prior accidents or evidence

amounting to reconstruction of the accidents in litigation.

Hale was a products liability action brought against the

manufacturer of a tire rim which separated and struck the

plaintiff as he attempted to inflate a truck tire. In Hale the

Eighth Circuit reversed the case on the basis that evidence

of two hundred and ten prior truck rim accidents had been

admitted without a showing that the wheels in those acci-

dents were in substantially the same condition as the wheel

“Hale vs. Firestone Tire and Rubber Company, 756 F. 2d. 1322

(8th Cir. 1985); Gladhill vs. General Motors Corp., 743 F.2d. 1049

(4th Cir. 1983).

*Szeliga vs. General Motors Corp., 728 F.2d. 566 (1st Cir., 1984).

in the Hale litigation. The Eighth Circuit held that “(e]vid-

ence of prior accidents is admissible only if the proponent of

the evidence shows that the accidents occurred under cir-

cumstances substantially similar to those at issue in the case

at bar.” Jd. at 1332. Respondents submit that this ruling is

certainly in keeping with the general rules of admissibility

requiring substantial similarity for out-of-court experi-

ments re-creating accidents and for evidence of prior

accidents.

Also before the Eighth Circuit in Hale was the question of

whether a motion picture film depicting a tire rim accident

had been improperly admitted into evidence in the trial

court. The film depicted a man inflating a tire, an explosive

separation of the tire, and a2 mannequin struck by the ex-

ploding parts. The life-like mannequin was hurled into the

air by the explosion and “killed.” Thus, evidence of a graph-

ically violent staged accident had been admitted into evi-

dence without substantial similarity. The Eighth Circuit

found that the “admission of the film graphically depicting a

dissimilar explosive accident and its severe consequences”

was error. Jd. at 1333.

Petitioner is also correct that Gladhill vs. General Motors

Corp., 743 F. 2d. 1049 (4th. Cir., 1984), required reversal

where there was no showing of substantial similarity be-

tween the events depicted in a video film and the events in

litigation. However, here again the court was “persuaded

that this entire test goes well beyond a mere demonstration

of a physical principle” and the court went on to side with the

plaintiffs who contended “that this test amounted to a re-

enactment of the accident.” Jd. at 1051.

Thus, Hale and Gladhill follow the general rule of requir-

ing substantial similarity for evidence of out-of-court experi-

ments re-creating accidents and for evidence of prior acci-

dents. On the other hand, the requirement of similarity is

diluted to what amounts to a test of relevancy in cases such

as the one sub judice where the evidence is offered for

purposes of demonstrating physical principles. Petitioner

clouds this distinction in her brief by comparing the sim-

ilarity requirements of Hale and Gladhill with the relevance

requirements in Szeliga vs. General Motors Corp., 728 F.

2d. 566, 567 (1st. Cir, 1984).

Petitioner further seeks to make the circuits seem at odds

on requiring similarity by representing Szeliga as holding

that similarity is not to be considered at all in determining

the admissibility of out-of-court experiments. (Brief of Peti-

tioner, p. 9). Szeliga does not so hold. The First Circuit

clearly held that the films in issue in Szeliga were not a re-

creation or representation of how the accident happened but

were offered to illustrate an expert’s testimony.’ The issue in

Szeliga therefore became whether or not the films were

relevant to the case. In affirming the admissibility of the

films, the Eighth Circuit noted that the district court had

screened the films and conducted extensive voir dire of the

experts before admitting the films into evidence. /d. at 567.

Thus, it is clear the trial court determined that the films

addressed the issues in litigation and were therefore rele-

vant. Id. at 567.

Petitioner misrepresents Szeliga by taking one sentence

in the opinion out of context. That sentence is as follows:

“{djissimilarities between experimental and actual condi-

tions affect the weight of the evidence, not its admissibility.”

Id. at 567. (Brief of Petitioner, p. 9). Read in context of the

opinion, this sentence does not say that similarity is not an

‘Incidentally, the facts of Szeliga and the nature of the films in issue

in that case surprisingly parallel the facts and video film in the case

sub judice.

issue affecting admissibility, but says that once some sim-

ilarity of conditions is shown, dissimilarities of other condi-

tions will affect the weight of the evidence and not its

admissibility. Jd.

In searching for a conflict among circuits, Petitioner ig-

nores the distinction between illustrative evidence and acci-

dent reconstruction evidence and incorrectly represents the

““llustrative evidence” cases as saying that similarity has no

bearing on admissibility.

B. The Appellate Courts Consistently Recognize The

Distinction Between Accident Reconstruction Evi-

dence And Illustrative Evidence In Applying Ad-

missibility Requirements.

In a closely-related but distinct argument, Petitioner

maintains that some Circuit Courts of Appeal do not recog-

nize a distinction between the similarity requirements for

accident reconstruction evidence and the similarity require-

ments for admitting illustrative evidence. (Brief of Peti-

tioner, p. 11-12). This contention is totally unsupported by

the case law. All Circuit Courts that have passed on the

issue recognize the distinction. Szeliga v. General Motors

Corp, 728 F.2d 566, 567 (1st Cir., 1984); Gladhill v. General

Motors Corp, 743 F.2d 1049, 1051 (4th Cir., 1984); Young v.

Illinois Central Gulf RR Co., 618 F.2d 332, 338 (5th Cir.,

1980); Nanda v. Ford Motor Company, 509 F.2d 213, 223

(7th Cir., 1974); Ramseyer v. General Motors Corporation,

417 F.2d 859, 864 (8th Cir., 1969); Jackson v. Fletcher, 647

F.2d 1020, 1027 (10th Cir., 1981).

Petitioner cites two cases as refusing to follow the gener-

ally accepted dichotomy between illustrative evidence and

evidence re-creating the facts in litigation: Gladhill v. Gen-

eral Motors Corp., 743 F.2d 1049 (4th Cir., 1983), and Hale v.

Firestone Tire & Rubber Company, 756 F.2d 1322 (8th Cir.,

10

1985). (Brief of Petitioner, p. 12). Petitioner's representation

of these cases as rejecting the dichotomy is completely

inconsistent with the opinions themselves.

In Gladhill, the plaintiffs appealed contending that a

video film put into evidence at trial by the defendant

amounted to a re-enactment of the accident without being

substantially similar to the accident. The defendants argued

that the video did not portray a re-enactment but rather

demonstrated physical principles underlying their expert’s

testimony. Jd. at 1051. Thus, the issue on appeal was not

whether the dichotomy existed but was whether the evi-

dence introduced at trial was merely illustrative or

amounted to a re-enactment of the accident. The Fourth

Circuit Court of Appeal clearly recognized the dichotomy

when it held as follows: “({dJefendants are correct that dem-

onstrations of experiments used to illustrate the principles

used in forming an expert opinion are not always required to

adhere strictly to the circumstances of the events at issue in

the trial. Brandt v. French, 638 F.2d 209, 212 (10th Cir.,

1981).” Jd. at 1051.° The Gladhill court went on to rule

against the defendants on the basis that the video evidence

in that case went “well beyond a mere demonstration of a

physical principle.” Jd. at 1051. The Gladhill decision was

made on the basis that the evidence in issue was better

categorized as a re-enactment than as illustrative evidence

and not on the basis that there is no distinction in similarity

requirements for the two. /d. at 1051-1052.

*The case relied on by the Fourth Circuit in Gladhill in recognizing

the distinction in similarity requirements for reconstruction evidence

and illustrative evidence, Brandt v. French, 638 F.2d 209 (10th Cir.,

1981), clearly recognizes the distinction when it says that “demonstr-

ations of experiments used to merely illustrate the principles in

forming 2n expert opinion do not require strict adherence to the

facts.” Id. at 212.

11

. Nor does Hale refuse to recognize the dichotomy as

argued by Petitioner. (Brief of Petitioner, pp. 11-12). As

discussed in detail above, Hale involved the admission of

“compelling” evidence of numerous other accidents, some of

them involving fatalities, and a film “graphically depicting a

dissimilar explosive accident.” Jd. at 1332, 1333 (Emphasis

supplied). In ruling that the prior accidents and film of the

simulated accident were improperly admitted, the Eighth

Circuit was in keeping with the dichotomy preventing ad-

mission of such evidence when lacking in substantial sim-

ilarity with the facts in litigation. Petitioner cites general

language quoted by the Hale court to the effect that sub-

stantial similarity is required for experimental tests as au-

thority for Petitioner's position that Hale refuses to recog-

nize the dichotomy. In doing so, Petitioner is totally

disregarding the context of the Hale opinion. The language

relied upon by Petitioner, when read in context, is directed

to experimental evidence of prior or reconstructed accidents

and not to experimental evidence in general.

The Hale court made its recognition of the dichotomy

between re-creation evidence and illustrative evidence per-

fectly clear when it decided the case of Randall v. Warnaco,

Inc., Hirsch-Wise Division, 677 F.2d 1226, 1233-1234 (8th

Cir., 1982). Petitioner concedes that Randall recognizes the

dichotomy, but maintains that the Eighth Circuit reversed

its position in deciding Hale. (Brief of Petitioner, p. 11). To

the contrary, it is clear from a full reading of Hale that the

case was decided on the facts and not on a new theory of

admissibility. Jd. at 1332-1333. In fact, not only does Hale

not in any way overturn or criticize Randall, but the cases

rely upon common authority for their decisions. Hale, 756

F.2d at 1333; Randall, 677 F.2d at 1233.

C. Only Petitioner Finds Conflict Among The Circuits.

Petitioner maintains there is conflict among the circuits

as to this evidentiary question. Yet, in not one of the cases

12

relied upon by either Petitioner or Respondent does a cir-

cuit court reject or even critize another circuit court opin-

ion. It is only Petitioner who finds a conflict among circuits.

II. The Eleventh Circuit’s Per Curiam Affirmance With-

out Opinion Does Not Conflict With Decisions Of

Other Circuits.

The Eleventh Circuit Court of Appeals issued a per

curiam affirmance without opinion of the trial court’s judg-

ment in the case sub judice. Thus, the court’s reasons for

affirming are not available. Even Petitioner admits “[t]he

Eleventh Circuit has not articulated its rule” as to similarity

requirements for out-of-court experiments. (Brief of Peti-

tioner, P. 12).

The lack of a published opinion by the appellate court is

particularly significant in light of the manner in which the

trial court approached the question of admissibility of the

out-of-court experiment. Petitioner would apparently have

this Court believe the trial court refused to recognize sim-

ilarity as a factor determining admissibility and that the

Eleventh Circuit's affirmance effectively so held. To the

contrary, as shown in detail in the Statement of the Case,

supra, before ruling that the video film and test tire would

be admitted, the trial judge viewed the video film in ques-

tion and heard extensive voir dire of the experts concerning

similarities and the relevance of dissimilarities between the

out-of-court experiment and the facts in litigation. Thus, it

is clear that the trial court did consider similarity in ruling

on the admissibility of the out-of-court experiment. Yet

Petitioner now maintains the effect of the appellate court's

affirmance without opinion is to say that similarity is not an

issue in determining admissibility."

"It is interesting to note Petitioner in her brief to the circuit court

argued that the Eleventh Circuit requires similarity between out-of-

13

The per curiam affirmance without opinion by the Elev-

enth Circuit in this case does not decide whether similarity

is required in the Eleventh Circuit since that issue was not

enumerated on appeal from the trial court. (Petitioner's

Brief to the Eleventh Circuit, p. 28). In a procedurally

analogous case, NLRB v. Sears, Roebuck & Company, 421

U.S. 182, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), this Court

declined to consider an issue where the Court of Appeals

had affirmed without opinion and it was not clear whether

the Court of Appeals had passed on the issue. Jd. 421 U.S.

at 163-164, 44 L. Ed.2d at 54-55. See also, Ramsey v. United

Mine Workers of America, 401 U.S. 302, 312, 91 S.Ct. 658,

28 L.Ed.2d 64, 71-72 (1971).

As outlined in the Statement of the Case, supra, the

evidence in issue in the case sub judice was admitted for

purposes of illustrating the testimony of Respondent’s ex-

pert. T. 253-254, 383, 385. The video tape simply showed the

puncture of a truck tire by a foreign object and the run flat of

that tire for a distance of 1,200 feet. The video tape did not in

any way depict or portray any injury to person or property

other than the tire itself. T. 384-385. The video and test tire

depicted therein were offered to illustrate the testimony of

the Respondent’s expert that he had conducted numerous

tests on the physical effects that blowouts have on tires. T.

382, 458, 495. Under these facts, the video and test tire were

offered for illustrative purposes and the test for ad-

court experiments and facts in litigation. (Petitioner's brief to Elev-

enth Circuit, P. 28). Where, as here, the issue presented to the

Eleventh Circuit was whether the evidence met the test of similarity

rather than whether similarity was required, it certainly cannot be

said that a per curiam affirmance without opinion had the effect of

abolishing the requirement of similarity. Yet, in an apparent attempt

to “create” a conflict among circuits, Petitioner now argues that the

Eleventh Circuit does not require similarity. (Brief of Petitioner, p. 9).

14

missibility was whether there was some similarity such as

would make the evidence relevant. Szeliga v. General

Motors Corporation, 728 F.2d 566, 567 (ist Cir., 1984). Prior

to ruling on the admissibility of the video and test tire, the

trial judge sent the jury out of the courtroom and viewed the

video film and heard extensive voir dire examination of all

three experts as to the similarities and differences between

the test blowout and the blowout on decedent’s truck. T.

384-402. Relying on the screening of the film and the voir

dire testimony on the question of similarity, the trial court

overruled Petitioner's lack of similarity objection and in-

structed that counsel for Petitioner could cross-examine on

aissimilarities. T. 402-403. This decision was in complete

keeping with Szeliga, supra; Ramseyer v. General Motors

Corporation, 417 F.2d 859 (8th Cir., 1969); Young v. Illinois

Central Gulf RR Company, 618 F.2d 332 (5th Cir., 1980);

and all other decisions of the circuit courts on the ad-

missibility of illustrative evidence.

III. Admissibility Of Out-Of-Court Experiments Is A

Subject For The Broad Discretion Of Trial Courts.

Petitioner argues that Federal Rules of Evidence 401 and

402 (requiring relevancy) and Federal Rule of Evidence 403

(granting the trial court discretion to exclude evidence

where the probative value is substantially outweighed by

dangers of unfair prejudice, etc.) have received various and

conflicting interpretations from the circuits regarding the

admissibility of evidence of out-of-court experiments. (Brief

of Petitioner, p. 10). In answer, Respondent first notes that

the trial courts have broad discretion in ruling on relevance

and admissibility of evidence. Collins, by and through Kay

v. Seaboard Coastline RR Company, 675 F.2d 1185,

1196-97 (11th Cir., 1982); United States v. 110 Bars of Silver,

3 Crucibles of Silver, 11 Bags of Silver Coins, 508 F.2d 799

15

(5th Cir.), cert. denied sub nom. Resnick v. United States,

423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975).

As to the Rule 403 issue in particular, the Rule does not

confer upon a party a right to exclude evidence. Instead, the

Rule is a grant of discretion to the trial court. Wright &

Graham, Federal Practice and Procedure, Evidence,

§ § 5212, 5224, pp. 251, 252, 319. As originally proposed,

the Rule required exclusion of relevant evidence found to be

substantially outweighed by the danger of unfair prejudice,

but as finally enacted the Rule provided that the trial court

“may” in its discretion exclude such evidence substantially

outweighed by danger of unfair prejudice. 1 Weinstein &

Berger, Weinstein’s Evidence, § 403; Dent v. Riddle, 664

F.2d 1, 5 (1st Cir., 1981); United States v. Long, 574 F.2d

761, 767 (3rd Cir., 1978). Thus it is precisely when probative

value is actually substantiaily outweighed by danger of

unfair prejudice that the trial judge’s discretion comes into

play. Wright & Graham, Federal Practice and Procedure,

Evidence, § 5214. And then, “the general rule is that the

balance should be struck in favor of admission.” United

States v. Day, 591 F.2d 861, 878 (D.C. Cir., 1978). See also,

Graham, Handbook of Federal Evidence, 1984 pocket part,

§ 403.1, n. 8.5, pp. 38-39.

As an exercise of discretion, a trial judge’s ruling under

Rule 403 may be reversed only if there was a clear abuse of

discretion. Ballou v. Henri Studios, Inc., 656 F.2d 1147 (5th

Cir., 1981); United States v. Adcock, 651 F.2d 338, 343 (5th

Cir., 1981); United States v. Blevinal, 607 F.2d 1124, 1128

(5th Cir., 1979); United States v. Authement, 607 F.2d 1129,

1131 (5th Cir., 1979). See also, United States v. Robin-

son,560 F.2d 507 (2nd Cir., 1977) (affirm unless trial judge

acts “arbitrarily and irrationally”).

16

As for the admissibility of out-of-court experiments in

particular, that determination is one for the sound and broad

discretion of the trial courts. Szeliga v. General Motors

Corporation, 728 F.2d 566, 567 (1st Cir., 1984); Millers’

National Insurance Company, Chicago, Illinois v. Witch-

ita Flour Mills Company, 257 F.2d 93, 99 (10th Cir., 1958);

Johnson v. William C. Ellis & Sons Tron Works, 604 F.2d

950, 958 (5th Cir., 1979). “Each case must be judged under

its own particular facts taking into account the specific

purposes for which this type of evidence is submit-

ted.”Robbins v. Whelan, 653 F.2d 47, 49-50 (1st Cir.) cert.

denied, 454 U.S. 1123, 102S.Ct. 972, 71 L.Ed.2d 110 (1981);

Szeliga v. General Motors Corp., 728 F.2d 566, 567 (1st Cir.,

1984). In arguing that a conflict among circuits exists, Peti-

tioner fails to note the particular facts or which the cases

upon which she relies were decided. Ratner, Petitioner

generalizes the holdings of those cases in seeking to discover

a conflict among circuits.

CONCLUSION

There is no conflict among the United States Circuit

Courts of Appeal on the requirements of similarity in admit-

ting evidence of out-of-court experiments. While the sim-

ilarity requirement does vary with the nature of the out-of-

court experiment sought to be admitted, the circuit courts

are uniform in recognizing this.

It would be an overwhelming task for the United States

Supreme Court to attempt to review discretionary eviden-

tiary matters in the district courts of this country. The

petition should be denied and this litigation brought to an

end.

Respectfully submitted,

CHARLES M. STAPLETON

Counsel of Record for Respondent