Petition for Writ of Certiorari — Capriola v. B. F. Goodrich Co.

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

WILLIAM A. CAPRIOLA, JR. and

BRYN G. CAPRIOLA, H/W

Petitioners

Vv.

B. F. GOODRICH COMPANY,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

AVRAM G. ADLER

ADLER & KOPS

210 W. Washington Sq.

Philadelphia, PA 19106

(215) 625-9999

MORRIS M. SHUSTER

COHEN, SHAPIRO,

POLISHER, SHIEKMAN

& COHEN

12 South 12th Street

Philadelphia, PA 19107

ATTORNEYS FOR PETITIONERS

QUESTIONS PRESENTED FOR REVIEW

May Federal Rule of Evidence 607 be used

as a vehicle to introduce hearsay testimony

by calling a witness for the sole purpose

of contradicting him with the hearsay.

Does not Rule 104 and Rule 403 of the

Federal Rules of Evidence mandate a

preliminary finding of fact that the

proferred hearsay testimony has a probative

effect not outweighed by its prejudice.

It is a denial of Constitutional due

process for the appellate court to deny the

ground for appeal on the grounds that the

record does not Support counsel's

objections which reason is in error and

brought to the Court's attention on a

Petition for Rehearing and the Petition for

Rehearing is denied without any action or

review by the Court of its error.

. TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED. ..... i

meee Ge GCREMTLONG. 2 2 «© «© oe 244

GPRINIONS BELOW. . « «© «+ «© «© « ib

JURISDICTION . . . «© © «© «© «© « ef

STATEMENT OF THE CASE. .... .95

REASONS FOR GRANTING THE WRIT . 28

Bas

There is a direct conflict

between the decision of the Court

of Appeals for the Third Circuit

and the decisions of other Courts

of Appeals on the identical issue

that Rule 607 of the Federal Rules

of Evidence does not permit a

witness to be called for the sole

purpose of being a conduit for

inadmissible hearsay

Ds 6 cs lk lt lll lw C8

Petitioner/plaintiff is not

accorded due process when Appellate

Court incorrectly found that plain-

tiff had not preserved violation of

F.R.E. 613(a) for appeal and refused

to rectify when error was called to

Court's attention. .... .43

CAeme ee lk l lll tl tl lll C4

iii

TABLE OF CITATIONS

PAGE

Adams v. Providence and Worchester

Coe., tas F.28 870, Sia (206 on he

1982) cert. denied 466 U.S. 973, 104

S.Ct. 2349, 80 L.Ed. 2d 822 (1984) . 33

Kotteakos v. United States, 328 U.S.

750, 764-65, 66 S.Ct. 1239, 90 L.Ed.

1967: 2000) See ee ee

Krulewitch v. United States, 336 U.S.

440, 453, 69 &.CG. 7i6, ;

93 4cBb. 26-76. 11 a se eee

Nash v. United States, 54 F.2d 1006,

1007 (2d Cir.) (Learned Hand, J.)

cert. denied 285 U.S. 556, 52 S.Ct.

457, 76 L.Ed. 945 (1932)... .... 40

Provident Tradesman Bank & Trust Co.

v. Patterson, 390 U.S. 102, 88 S.Ct.

733, 19 L.BA. 836 (1668). ss

United States v. DeLillo, 620 F.2d

939, 946 (2d Cir. 1980), cert. denied,

449 U.S. 835, 101 S.Ct. 108,

66 LL. BA. 66 42 (16OG. w ks ee ee

PAGE

United States v. Long, 574 F.2d 76l,

766 (3rd Cir. 1978) cert. denied,

439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.

24 637 (i978). «cece eevee seee aa

United States v. Miller, 664 F.2d 94,

97 (5th Cir. 1981), cert. denied,

459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.

2G 2066 « <@ 6:4. we 6 ee «oe See eee

United States v. Morland, 531 F.2d 183,

190 (40h Gar: 1979) « «6 « «© «6 «© «. 0 39

United States v. Provenzano, 620 F.2d

985, 1003, cert. denied 449 U.S. 889,

101 S. Ct. 267, 66 L.Ed. 2d 129

te ee eae ee a ec ee

United States v. Ragghianti, 560 F.2d

1376, 1380-81 (9th Cir. 1977)... . .36

United States v. Rogers, 549 F.2d 490,

497 (8t Cir. 1976), cert. denied,

43i U.8..-9i8,. 97 3-Ce. 2h0as

3 Se Bes), a ae |

United States v. Sebetich, 776 F.2d

412, 429 (34 Cie. 3965) 2. s © «so ws os 3G

Whitehurst v. Wright, 592 F.2d 834,

839 (Ste Cis. EOTOls. « a % & «es = 3

STATUTES AND OTHER AUTHORITIES:

Federal Rule of Civil Procedure 19

Federal Rule of Evidence

Rule

G4. 2 ss © @ 6

104 (a) a oa a

O06 + 4 © se 6 4 €s

OOls « « & «© #2

Gist@). « 2 @ «

801(d) (i).

26 U.8.C. $1254.01 « « « o «

The Handbook of Federal Evidence

Dy GrFa@nmam. +6 es se ee eeee

"Reply to Weinstein's Evidence",

55 Texas Law Review, 573 (1977).

3 Weinstein & Berger,

607([5] (pp.

Evidence,

607-79 to 607-81)

28 William & Mary Law Review 295.

4,13,17

2,29

- 5,16,43,44

- 30

Paragraph

- 36

APPENDIX PAGE

Appendix A - Order of the United

States District Court for the

Eastern District of Pennsylvania

GOCeGG Bay i9, 2987. 3s «8s te we te la

Appendix B - Opinion of the United

States Court of Appeals for the Third

Circuit dated December 14, 1987 .. 2a

Appendix C - Order of the United

States Court of Appeals for the Third

Circuit denying Petition for Rehearing

Gagec January i2, i988. . . . «ss « 13a

Appendix D - Excerpts of Transcript . 15a

Appendix E - Plaintiffs' Motion for

ee hy fo he? ee ne ee ee ee ee | |

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

WILLIAM A. CAPRIOLA, JR. and

BRYN G. CAPRIOLA, H/W

Petitioners

Vv.

B. F. GOODRICH COMPANY,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

OPINIONS BELOW

The Petitioners, William A. Capriola, Jr.

and Bryn G. Capriola, his wife,

respectfully pray that a Writ of Certiorari

be issued to review the judgment and

opinion of the United States Court of

Appeals for the Third Circuit entered in

this proceeding on December 16, 1987. The

Opinion of the Court of Appeals for the

Third Circuit is not’ reported. The

Opinion appears in the Appendix hereto. No

Opinion was rendered by the Eastern

District of Pennsylvania. The Order of

that Court appears in the Appendix hereto.

JURISDICTION

The Judgment of the Court of Appeals for

the Third Circuit was entered on December

16, 1987. A Petition for Rehearing was

filed timely and was denied on January 12,

1988. This Petition for Certiorari was

filed within ninety days of that date.

This Court's jurisdiction is invoked under

28 U.S.C. §1254(1).

FEDERAL RULES OF EVIDENCE

PROVISIONS INVOLVED

Rule 607: The credibility of a witness

may be attacked by any party, including the

party calling him.

Rule 104: (a) Questions of

Admissibility Generally. Preliminary

questions concerning the qualification of a

person to be a witness, the existence of a

privilege, or the admissibility of

evidence shall be determined by the court,

subject to the provisions of subdivision

(b). In making its determination it is not

bound by the rules of evidence except those

with respect to privileges.

(b) Relevancy Conditioned on Fact. When

the relevancy of evidence depends upon the

fulfillment of a condition of fact, the

court shall admit it upon, or subject to,

the introduction of evidence sufficient to

Support a finding of the fulfillment of

the condition.

(Cc) Hearing of Jury. Hearing on the

admissibility of confessions shall in all

cases be conducted out of the hearing of

the jury. Hearings on other prelimninary

matters shall be so conducted when the

interests of justice require or, when an

accused is a witness, if he so requests.

(da) Testimony by Accused. The accused

does not, by testifying upon a preliminary

matter, subject himself to cross-

examination as to other issues in the case.

(e) Weight and Credibility. This rule

does not limit the right of a party to

introduce before the jury evidence relevant

to weight or credibility.

Rule 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, or by

considerations of undue delay, waste of

time, or needless presentation of

cumulative evidence.

Rule 613(a): Examining Witness

Concerning Prior Statement. In examining a

witness. concerning a prior statement made

by hin, whether written or not, the

statement need not be shown nor its

contents disclosed to him at that time, but

on request the same shall be shown or

disclosed to opposing counsel.

STATEMENT OF THE CASE

The husband/petitioner, William A.

Capriola, Jr., who was twenty-three years

of age at the time of the accident had been

basically educated in technical schools and

then began working with his father in the

auto body and fender trade. In 1979 he

started his own business in Phoenixville,

aia a aie ie

Pennsylvania, and in addition to

maintaining an auto body shop, he did

towing service and paint work and sold used

auto parts. When his business began to

taper off, he closed the place in

Phoenixville and received a job offer from

his uncle to work with his father at

Conestoga Auto Body in Berwyn,

Pennsylvania.

He moved all his machinery and gear to

his father's place on King Road in Spring

City, Pennsylvania, utilizing the barn

there for finishing jobs. He was due to

start work for his uncle on May l, 1985.

On April 30, 1985, he was working in the

barn with his father when Jeff Weaver came

by. He was a business acquaintance and

friend of William Capriola, Jr.

(hereinafter referred to as "Billy"). He

needed some tires changed (86a) and knew

that Billy had a tire machine which he

wanted to use.

The tire machine and air compressor that

went with the tire machine was a Coates 10-

10 machine that had been moved to the barn

from the shop that Billy formerly had in

Phoenixville. Weaver pulled the car partly

into the door, jacked it up and removed the

right tire and wheeled it over to the tire

machine. Weaver then proceeded to take the

other tire off. (86a) Billy put the tire

on the tire machine and let the air out of

the tire by removing the valve core. (86a)

There being no liquid soap in the

receptacle on the machine for lubricating

the bead, Billy went to the house to get

some liquid soap. When he got back, he put

the soap for lubricating the bead on the

tire and started changing the tire. The

entire procedure for changing a tire was

shown to the jury through a videotape.

There was a compressor with two air hoses;

one to operate the air wrench which takes a

wheel's lugs off and the other to put air

in the tire. The hose for putting air in

the tire had a regulator which cuts down

the air pressure to 60 p.s.i. The

procedure is to insert air in spurts and

then check the p.s.i. in the tire.

After the tire was on the rim, the tire

would be brought to forty pounds p.s.i. so

that the bead would seat, then the air is

let out so that the valve core can be

inserted.

On the day of the accident, Billy had let

the air out, put the shrader valve in,

which is a valve that keeps the tire from

deflating. He had twenty pounds in the

tire, then he pushed the pedal down to put

more air in, held it for two to three

seconds at which time the tire blew. (91a)

At the time of the explosion, the

p.s.i., which is pounds per square inch,

was estimated as somewhere between twenty-

five to thirty pounds. As a result of the

explosion, Bill went in the air and as he

went up, he kicked his father in the face,

breaking his nose, then he tumbled back on

the floor with his head striking the tire

machine. The wheel rim because of the

restrictive chock remained on the tire

machine. (91a)

Plaintiff's injuries in a most summary

form consisted of multiple body fractures;

injuries to the brain resulting in an

epidural hematoma; fractures of both arms;

fracture of the left olecrannon; Bennett's

fracture of the right thumb; multiple

facial fractures including both eye orbits;

numerous facial and body lacerations

residual scarring. His treatment required

numerous surgical procedures including a

craniotomy. He has been beset with

seizures and suffered total amnesia of the

events immediately prior to and subsequent

to the accident.

In plaintiffs' case, Jeffrey Weaver was

called and testimony was elicited from him

that he had brought the tires to the shop

for mounting; that he had removed the

wheels from the front of the car; that he

had two tires which he had given to Billy

Capriola to mount. He saw Billy Capriola

put one of the wheels on the tire machine

and was then checking the front end of his

car when the explosion occurred.

Weaver played an important part in the

trial tactics of the defendant and the

pretrial activities of both plaintiffs'

counsel and defendant's’ counsel. The

deposition of Jeffrey Weaver had been taken

and both sides were fully cognizant of his

testimony. Investigation and discovery

procedures had identified the Sloads,

husband and wife, and Waltz as possible

impeaching witnesses based upon purported

extrajudicial statements made by Jeffrey

Weaver. Supposedly Jeffrey Weaver had gone

to the Sload's house the next morning and

in the presence of the Sloads and Waltz had

said that the tire changing machine had not

been in the shop at the time of the

changing of the tire but had been brought

in after the accident to Billy Capriola.

In his deposition, Weaver unequivocally

denied having made such statements. There

would have been no purpose of taking the

tires to the Capriola's except to utilize

the tire changing machine. Plaintiff had

filed a Motion In Limine prior to the

trial, asking the Court to direct the

defendants acting through their counsel to

refrain from making mention of this in

their opening speech or in their

questions, pending a ruling on the Motion

In Limine and for a Rule 104(a) of the

Federal Rules of Evidence hearing. (40a)

The Court had been requested to subject

this matter to inquiry under Rule 104 of

the Federal Rules of Evidence to determine

whether the quality of the hearsay

statements would be permitted under Rule

613(a) of the Federal Rules of Evidence and

also under Rule 403 to weigh the probative

value of such hearsay statements as opposed

to the obvious prejudice that would ensue.

~ (43a) The Court denied the Motion in

Limine without a hearing.1}

Both sides utilized expert testimony and

as expected, it was contradictory. For the

plaintiff, Loren J. Forney, a mechanical

industrial engineer with years of tire

experience, testified that the procedure

that had been used for mounting the tire by

Billy on a machine was a proper and safe

procedure. It was a tubeless radial tire.

1 A hearing would have revealed that

on at least one material issue, the

purported hearsay was utterly false.

Plaintiff had available sworn testimony

from credible witnesses that the tire

machine was in the barn before the

accident. One of defendant's witnesses

Rychlak had so stated in a statement to the

defendant and had seen Weaver's tire on the

machine.

(182a) A tubeless tire is a tire which

does not require a tube and the air

remains in the tire by the grip of the

outside of the tire on the rim. (183a)

He examined the tire in question and

found that it had broken beads. The broken

beads were on the whitewall side of the

tire. (188a) On the ends of the broken

beads there was vulcanized rubber. (190a)

He compared the tire that exploded against

an exemplar tire and performed various

tests on the exemplar tire. The exemplar

tire broke at the splice of the bead wire

and there was no vulcanized rubber on the

ends. (196a)

His final opinion was that the beads in

Exhibit P-52 were definitely broken during

the manufacturing process. They were not

completely broken, but partially broken

during the molding process (20la). He also

opined that a partially broken bead is

subject to further breaking through usage

and during the procedure of mounting a tire

on a rim even with very low pressure will

explode.

The second expert for the plaintiff was

Dr. Campbell Laird, a Ph.D. in phyical

metallurgy whose qualifications’ were

conceded. In summary, his’ testimony

supported plaintiffs' contentions’ that

there was vulcanized rubber on the broken

ends (277a-278a) and the condition and

configuration of the ends of the wires

having become peened and the presence of

the rubber in the cup parts formed during

feasts (278a-279a) supported an opinion

that the bead wires were broken during

manufacture. He explained in order to get

rubber to adhere to iron you need a nice

fresh surface and coupled with the fact

that there is the amount of peening, all

this pointed to a very early fracture

namely at the time of manufacture.

Jeff Weaver was called by the plaintiffs

and he testified that he had brought the

vehicle to the Capriola's to change the

tire; that he took the one front white side

wall tire off. The Capriola's had offered

to dismount the tire and mount the new

tires for him and that he saw Billy

Capriola put the tire on the machine. The

defendant did not at that time invoke the

procedures of Rule 613(a) of the Federal

Rules of Evidence by asking Weaver about

the statements purportedly made by him to

the Sload's and Frye.

Following the end of the plaintiffs case,

Weaver was called as a witness for the

defendant. An offer of proof was

requested. (354a) At the offer of proof,

counsel for the defendant admitted that the

sole purpose for calling Mr. Weaver was in

order to impeach him so as to introduce the

testimony of Mr. and Mrs. Sload and a Mr.

Frye. (354a) Objection was made that Rule

607 does not permit the calling of a

witness so that he may be impeached by

introducing hearsay evidence that would not

otherwise be admissible and that under any

circumstances, the Court would have _ to

weigh the probative value of the hearsay

statements against the unfair prejudice

under Federal Rule of Evidence 403.

(356a) The Court permitted the inquiry of

Weaver on the grounds that attacks on

credibility are always permissible and was

not in any sense an attempt to circumvent

the hearsay law and on that basis, he

overruled plaintiffs' objection. (359a)

Weaver testified that he had seen Mr.

Sload the morning after the accident and

had told him about the accident. He also

had discussed the accident with Sload on

one or more subsequent occasions. (365a)

On the other hand, he had no recollection

of ever discussing the accident with Joseph

Frye. He was storing a Ford tractor on

Sload's property. (366a) He denied

telling Mr. Sload the following morning

that he, Weaver, was attempting to mount

the tire in question and it being a

tubeless radial tire, that he was having

some difficulty in getting the tire to

properly bead. (367a) He denied telling

Mr. Sload that Billy Capriola observed what

Weaver was doing and that Billy became

impatient, that he took the tire away

Weaver and over-inflated it with full

unregulated line pressure. (367a) He

denied that he had told Mr. Sload the

following day that someone had made the

decision on the night of the accident to

make it look better by bringing into the

Capriola's the tire changing equipment that

was not there when the accident happened.

(368a) He denied telling Mr. Sload the

morning after the accident that as of that

moment in time, the Capriola's were talking

about commencing a lawsuit. (369a) He

denied telling Mr. Sload "if I stick to

that story, Billy will take care of me".

(369a) In addition to being hearsay,

counsel for the plaintiff pointed out that

613(a) had not been complied with. Weaver

said that he had merely told Sload that

during the mounting of the tire, it

exploded.

He was asked, did he know of any reason

why Mr. Sload would have any reason other

than to be totally candid in describing his

relationships with you. This was objected

to and overruled. Over objection, he was

asked can you think of any reason why Mr.

Sload should be anything other’ than

totally truthful in describing to these

ladies and gentlemen of the jury his past

relationship with you. That was objected

to and overruled.

On cross-examination of Weaver by

plaintiffs' counsel, he reiterated that

there was a tire machine at the time the

tire was being dismounted and mounted and

that he had never seen anybody dismount a

tire with hand irons.

Mr. Sload was then called to testify as a

witness over objection. (391a) Mr. Sload

testified that Jeff Weaver said he was at

Billy Capriola's; they were mounting two

tires for his Monte Carlo; Jeff said that

he couldn't get the tires to bead up on the

rims and he was aggravated. Billy

Capriola came over and took the air hose

from him, put it on the valve stem of the

rim with full line pressure, and over-

inflated the tire and that is the way he

was hurt. Weaver also said that they were

going to get a tire machine from Ralph

Capriola's shop and bring it to the shop

that night so it looked like everything was

the way it was supposed to be safetywise.

They were going to bring suit against B. F.

Goodrich Tire Company. Sload then said he

got into a pretty heated argument with

Weaver and told him that if he did start

any such proceeding that he, Sload, would

do what he had to do and come forward and

tell what Weaver had told him, Sload, that

morning of what really happened. (394a)

On cross-examination, inquiry was made of

how a Mr. Failor, a representative of

Goodrich, first contacted Sload. Mr.

Sload's version was that it was an

accidental meeting, Joseph Frye had made

arrangements to meet Mr. Failor for an

interview at a half-way point at a garage

that Sload owned on September 26, 1986.

(396a) He admitted he didn't know what

equipment was in Billy Capriola's’ shop.

(40la) He admitted that he never reported

Weaver's comments to B. F. Goodrich or to

the District Attorney, even though he

believed the story Jeff Weaver was telling

him. (402a) He testified that if he

believed the story, he would have to assume

that Jeff Weaver was party to a crime. He

did not know why Jeff Weaver, as a party

to a crime would confide such participation

to him. He admitted that Jeff Weaver had

never admitted to any other crimes to hin.

(403a)

He was asked why Mr. Failor would tell

him that he had never heard of Sload,

before that date of the meeting at the

garage in late September, when as of June

18, 1986, defendant's counsel for Goodrich

knew that Sload had been interviewed as to

the same allegations.

Joseph Frye's testimony was also based on

Weaver's alleged confession of perfidy but

with less detail than that of Sload. He

—

said that a few days after the accident,

Weaver told him they were changing the tire

on the car at the time it exploded and that

there was no machine in the shop that night

and they were going to move one in and he

did not know from where. (417a) The

purpose of moving the machine in was to

make the accident look real as if it really

happened on the machine. (417a) On cross-

examination, he admitted he had never

changed a passenger tire except on a tire

changing machine and he had never known

anyone else to do it. He never asked Jeff

Weaver how did you get the tire off if

there was no tire changing machine. (419a)

He didn't know any reason why Jeff Weaver

would have confessed to a crime. His

testimony was that a Mr. Failor came to see

him on October 1, 1986 because he had been

the original owner of the car. It was

only then that he told Failor about what

Weaver had told him. (421a)

Karen Sload was then called to testify.

She said she heard Jeff Weaver say that

they were inflating a tire and that the rim

blew off the tire and hit Bill in the face

and that Bill was taken to the hospital and

then taken to another hospital in Philly,

and that they were going to make an effort

to get a tire changing machine into the

shop so they would have a suit against the

company. (425a) She said at the time she

didn't even know what brand the tire was

because Billy was so severely injured. The

cross-examination of Mrs. Sload

demonstrated inconsistencies with Mr. Sload

and required her to have Weaver saying they

were going to bring a machine in and a

later conversation that they had actually

brought a machine in. (430a)

The testimony of Mark Rychlak was also

objected to and overruled. (438a) Rychlak

testified that he purportedly overheard a

conversation between William Capriola, Sr.,

Mike Sharpless and Ralph Capriola that a

tire was on the ground and it had direct

air running to it with no air chuck. (441la)

Rychlak also testified he was present

prior to the accident at the very time Jeff

Weaver pulled up in his Monte Carlo and

that he saw him take the tires out. There

was a tire machine in the barn and the tire

was on the tire machine when he left. He

admitted that he had been told by Ralph

Capriola to go packing, though he denied

that this meant he was being fired. He did

admit that he didn't work for Ralph

Capriola after that. (449a) He admitted

that everytime he had been in the Capriola

shop before the accident, the Coates tire

changer had been there and at all times

before the accident. (450a)

Three experts testified for B. F.

Goodrich Tire Company. A fair summary of

their testimony was that the tire was not

defective, that there was no bead failure

and that the forces were not consistent

witheplaintiffs' case (614a). One of the

experts had testified that beads could not

break in the manufacture was confronted

with prior testimony that in another

matter, he admitted he had testified

differently. (629a)

Rebuttal evidence was permitted as to the

presence of the tire changing machine on

the premises prior to the accident. The

witnesses included a Chief of Police, an

individual who sold supplies to Capriola

and who had been in and out of the shop.

(657a) Rebuttal witnesses were permitted

denying any conversation between William

Capriola, Sr. and Rychlak and also rebuttal

testimony from William Capriola, Sr.

himself.

A jury, in answers to interrogatories,

found that the tire was not defective when

it left the control of the defendant.

Plaintiffs' Motion for a New Trial was

timely filed and upon its denial, appeal

was timely taken to the Court of Appeals

for the Third Circuit.

REASONS FOR GRANTING THE PETITION

There is a direct conflict between the

decision of the Court of Appeals for the

Third Circuit and the decisions of other

Courts of Appeals on the identical issue

that Rule 607 of the Federal Rules of

Evidence does not permit a witness to be

called for the sole purpose of being a

conduit for inadmissible hearsay evidence.

In the Fifth Circuit this was so held in

Whitehurst v. Wright, 592 F.2d 834, 839

(5th Cir. 1979).

See also United States v. Miller, 664

F.2d 94, 97 (5th Cir. 1981), cert. denied,

459 U.8. 854, i203 8.Ct. 121, 74 L.Ed. 2d

106; United States v. DeLillo, 620 F.2d

939, 946 (2d Cir. 1980), cert. denied, 449

Coe eee eee ees coe, 66 L.Ed. 2d 41

(1980); United States v. Rogers, 549 F.2d

490, 497 (8t Cir. 1976), cert. denied, 431

ane) ere eee meee, 53 L.Ed. 2d 229

(1977); United States v. Morland, 531 F.2d

183, 190 (4th Cir. 1975). 7ae Court

of Appeals for the Third Circuit had before

in a criminal case similarly held that a

witness may not be called for the purpose

of circumventing the Hearsay Rule by means

of Rule 607, namely United States v.

Sebetich, 776 F.2d 412, 429 (3d Cir. 1985).

This issue has been hotly debated by two

prominent commentators on evidence. In The

Handbook of Federal Evidence by Graham and

a Law Review article by Graham entitled

"Reply to Weinstein's Evidence", 55 Texas

Law Review, 573 (1977), Graham militated

against utilizing Rule 607 as a vehicle to

permit hearsay evidence to be brought

before the jury.

As Graham pointed out, a problem under

Rule 607 arises when a party seeks to

impeach his own witness with a= prior

inconsistent statement which is not

substantively admissible (see F.R.E.

801(d)(1i)). According to Graham, such

impeachment should be prohibited absent a

showing of "surprise" and "affirmative

damage" by the proponent of the evidence:

"With respect to impeachment of a

party's own witness with a prior

inconsistent statement not

substantively admissible, in the

absence of both surprise and

affirmative damage impeachmert of

one's own witness is inappropriate.

If the witness does not give

affirmatively damaging testimony,

i.e., testimony of positive aid to

the adversary, the party simply does

not need to attack his credibility.

If the witness testimony does not

Surprise the party, the litigant

should not be permitted to impeach

his testimony by placing before the

jury the witness' prior statement

because he could have refrained from

eliciting the statment he seeks to

impeach. The requirement of

Surprise would prevent the party

from consciously introducing

affirmatively damaging testimony

under the only circumstances in

which he would do so - when the

potential effect on the jury of the

prior inconsistent statement

outweighs the affirmatively damaging

effect of the elicited testimony.

Graham at 422, 423 (footnote

omitted) ."

Judge Weinstein, as a commentator on the

Federal Rules of Evidence,* had opted for a

less inflexible approach. einstein

counselled the use of Rule of Evidence

Number 403 and a weighing by the trial

court of the probative effect against the

prejudicial, or even potentially pre-

judicial effect before exclusion.

The practice of the trial court did not

follow either the Graham Rule, which had

been adopted by the various courts of

appeals of this country, or the Rule 403

appoach favored by Weinstein. The record

is barren of any weighing by the Court. A

few expressions utilized by the Court

simply exploited the tag line that the

Court was permitting the receipt of the

testimony to test credibility. It is

23 Weinstein & Berger, Evidence

Paragraph 607[{5] (pp. 607-79 to 607-81)

submitted that that was hardly an excuse

for even the fair weighing that Weinstein

envisions.

Reversal for improper application of

Rule 403 while possible is rare _ and

appellate courts rarely second guess trial

courts at balancing relevance against

prejudice, yet in Adams v. Providence and

Worchester Co., 721 F.2d 870, 872 (lst Cir.

1982) cert. denied 466 U.S. 973 104 S.Ct.

2349, 80 L.Ed. 2d 822 (1984)the court

weighed a dubious admission by the railroad

that a railroad employee was disabled from

working and as such admitted it into

evidence despite its prejudicial effect.

The Appellate Court reversed the trial

judge because the prejudice outweighed any

probative value.

United States v. Long, 574 F.2d 761, 766

(3rd Cir. 1978) cert. denied, 439 U.S.

985, 99 S§.Ct. 577, 58 L.Ed. 2d 657 (1978),

says that where an objection does invoke

Rule 403 the trial judge should record his

balancing analysis to the extent that his

exercise of discretion may be fairly

reviewed on appeal. When the trial court

fails to undertake the articulated

balancing that Rule 403 would seem to

require, the courts have taken two paths.

The courts have some time looked to an

implicit background for the requisite

balancing. United States v. Provenzano,

620 F.2d 985, 1003, cert. denied 449 U.S.

sso, 101 8S. Ct. 267, 66 L.Ed. 2a i129

(1980), or the appellate court chooses to

examine the record itself.

There is nothing in this record that the

court ever did any of the requisite

balancing before admitting the Sload and

Frye testimony. As part of the plaintiff's

case, Weaver was only a link in the history

of the tires as they reached the Capriola

shop. He did not see the accident. His

testimony as to the tire machine being

present was at best, inferential and that

fact was corroborated by witness after

witness.

An analysis properly made would see that

attack on the credibility of Weaver has no

probative value, it doesn't meet the

fulcrum of the issues involved. Instead,

the attack on Weaver's credibility, flawed

as it may be, was designed for the sole

purpose of besmirching the Capriolas with

the imputation of a crime.

Under the Circuit Court's decision, the

need for a Rule 403 balancing is eliminated

by a limiting instruction.

The Court of Appeals for the Third

Circuit held:

"The challenged statements were not

offered ‘to prove the truth of the

matter asserted,' but for the sole

purpose of suggesting that Capriola

Sr. and Weaver are prone to tell

varying stories."

"The trial judge clearly and

succinctly issued a limiting

instruction to the jury which warned

about the non-factual nature of the

lay testimony. We find no error in

the admission of the testimony."

In an excellent student note on Rule

607, 28 William & Mary Law Review 295,

which invites attribution, it was pointed

out that Congress rejected incorporating

inconsistent statements as exceptions to

the hearsay rule and thus restricted any

substantive use.

See United States v. Ragghianti, 560 F.2d

1376, 1380-81 (9th Cir. 1977), in which the

Court said:

"While it does not necessarily

follow that every one of the

Federal Rules of Evidence is a

‘specific command of cCongress' so

that a violation of one requires

reversal unless ‘harmless beyond a

reasonable doubt,' Kotteakos Vv.

United STates, 328 U.S. 750, 764-65,

66 AE 3 kaa, 90 L. EG. i557

(1946), the value of prior cases

holding admissible for substantive

purposes such unsworn hearsay

statements has surely been weakened

by the codification of 801(d) (1) (A)

into the Federal Rules of Evidence.

Even before the enactment of the

Federal Rules of Evidence into law,

the orthodox hearsay rule rejected

the use of an unsworn statement made

out of court as_ substantive

evidence in a trial. Congress has

now spoken to the issue and

Congress, not the court, has the

final say."

"See also, Notes of the Advisory

Committee on Proposed Rule _ 8:0l,

reprinted in 28 U.S.C.A. Rules of

Evidence at 527-31; Reports of the

Senate and House Committees on the

Judiciary and the Conference Report,

4 U.S. Code Cong. & Admin. News

1974, 93d Cong. 2d Sess. at 7062-63,

7086-87, 7104; 4 Weinstein's

Evidence 801-1-8C1-40, 801-71-801-98

(i975) .*

What is at stake is the question of

using impeachment as a subterfuge in the

hope that a jury will consider’ the

statement's substance in its deliberative

process. The fallacy of the limiting

instruction is well known. Counsel engages

in subterfuge because the evidence he wants

to present to the jury he cannot otherwise

introduce.

In the instant case, the deposition of

Weaver, the statements taken from Weaver

all denied the work product of Mr. Failor

who had organized this litany of

conflicting testimonies, including the

imaginary midnight advent of the tire

changing machine. The calling of Weaver as

a defendant's witness was- patent

subterfuge.

; 39

It is not changed, by the fact that

plaintiff also called Weaver. Whether the

defendant could have impeached Weaver in

the limited offer made in the plaintiffs'

case is not before this Court. It was

never done. If it were possible, it was

opportunity lost.

The crucial issue is that there was no

effort to consider the issue of subterfuge

or weigh the probative effect against the

obvious prejudice. It is clear that the

Court of Appeals ratifies the action of the

trial court in misapplying Rules 607 and

613(a) in the assumption that a limiting

instruction permits the trial court to

abdicate its responsibilities.

As to limiting instructions, Justice

Jackson in Krulewitch v. United States, 335

U.S. 440, 453, 93 L.Ed. 2d 790 (1949), 69

ie a

;

——

_— a - tangy nn

D ~

. 7

7 ;

a a ~

18a : :

_ an ee 2 I

él

S.Ct. 716, said:

"The naive assumption that

prejducial effects can be overcome

by instructions to the jury, all

practicing lawyers know to be

unmitigated fiction." -

(citations omitted)

It is particularly unrealistic to expect

effective execution of the "mental

gymnastic" required by limiting

instructions, Nash v. United States, 54

F.2d 1006, 1007 (2d Cir.) (Learned Hand,

J.) cert. denied 285 U.S. 556, S52 S.Ct.

457, 76 L.Ed. 945 (1932). Flaintiff was

forced to dig deeply into the motivations

of the Sloads and Frye and in a different

context, Rychlak.? This is the danger of

extraneous issues permitted to be

introduced into the stream of fact finding.

Defendants sought to establish that

3Rychlak had been fired by Capriola's

uncle.

Sloads and Weaver were still friends; that

Sload still permitted Weaver to park his

truck on Sloads' premises. All this became

dross thrown on the scales of justice.

Plaintiff was dragged from the important

task of establishing a defective tire to

defending ‘waster and his friendship with

Sload.

What cleansing action is attorées by a

bare bones limiting instruction is

dubious. It admits that there is no

probative value in determining the issues

of the case and does nothing to remove the

stain that somehow and somewhere a crime

was committed. In fact, the limiting

instruction makes the credibility of Weaver

a crucial factor. A lay jury does not have

the sophistication to appreciate the

subtleties which must ensue.

The prejudice of Rychlak's testimony is

harder to weight. It had limited probative

effect because it made little difference

whether the tire was on the machine or not

and hardly reached the basic issue of

whether the tire was defective. in fact

Rychlak, in some respects, bolstered the

plaintiffs' case by establishing the

presence of the machine before the accident

and seeing the Weaver tire on the machine

and admitting that there would be no

purpose for taking a tire off once it was

on the machine to fill the tire with air.

However, a trial judge exercising his

duty under Rule 104 and doing the weighing

that is required of Rule 403, would have

seen its lack of probative weight and the

potential for confusion.

There can be no argument of an implicit

weighing by the Court. The Motion for a

New Trial charged the Court with this lack

of weighing. This charge deserved an

explanation. None was’ forthcoming. The

Court after holding the matter for over

three months, simply denied the Motion with

no Opinion.

A fair application of Rule 607 would have

eliminated this highly prejudicial hearsay

without the need for any weighing. By

sanctioning the action of the trial court,

the Court of Appeals for the Third Circuit

has issued a carte blanche to permit the

dangerous subterfuge of calling a witness

solely for the purpose of inviting hearsay

testimony which is contrary to the will of

Congress.

Ai.

Petitioner/plaintiff is not accorded due

process when Appellate Court incorrectly

found that plaintiff had not preserved

violation of F.R.E. 613(a) for appeal and

refused to rectify when error was called to

Court's attention.

The panel found the plaintiff had not

preserved for appeal his'7 particular

objection, that the foundation requirement

of Fed. R. Evid. 613(a) was not complied

with in the cross-examination of Capriola,

Sr. In stating that this. particular

objection had not been preserved for

appeal, the panel stated that the plaintiff

had not raised an objection when the issue

arose at trial. This statement is

incorrect. The precise pages of the record

where plaintiffs' counsel repeatedly argued

that a foundation was lacking under 613(a)

are found at pages 434a to 438a of the

record, and set forth as an appendix.

The issue was raised during a demand for

an offer of proof. Plaintiffs' counsel

———————————————————————

objected that the proffered statement was

only a snippet from a much larger statement

which had been blanked out. Plaintiffs'

counsel made it very clear that he wanted

the whole statement. The Court insisted

that he was entitled only to the snippet of

two lines from a whole page. The fallacy

of the position of the Court was that what

remained on that undisclosed page could

very well have modified, reversed,

explained, or disclosed an alternative.

It was without any basis under Rule 613(a)

to deny the whole statement to counsel.

It was raised in the Motion for a New

Trial. It is set forth at paragraph 3(}j)

of Plaintiffs' Motion for a New Trial.

(723a) See appendix at page 18a.

The panel of the Court of Appeals was

asked to reconsider its position. The

= — ee ee Pee

rr.

Petition for Rehearing addressed to the

panel of the Court called attention to the

error by the panel in its Opinion and cited

chapter and verse that objection was timely

made and pursued. The Court of Appeals in

the federal system of justice, absent this

resort by petition for certiorari, is a

court of last resort. The panel's refusal

to recognize its error and to confront an

issue fairly made, it is submitted, is a

denial of due process.

The constitutional right by the

plaintiffs to have their case fairly

considered at the appellate level deprives

those plaintiffs of basic constitutional

privileges.

This complex case with these important

legal issues was not afforded an oral

argument albeit recognizing the demands of

judicial economy, judicial economy should

never be permitted to shortchange a party

litigant who has raised bona fide serious

legal issues requiring of the Court

consideration of those legal issues.

It is respectfully submitted that

judicial economy has insidiously invaded a

deliberative process that should be part of

appellate review. A long trial with

serious legal issues deserves an oral

argument to which these issues could have

been addressed and misreadings of the

record by the panel be avoided. A fair

appellate review is an integral part of due

process.

The Supreme Court in Provident Tradesman

Bank and Trust Co. v. Patterson, 390 U.S.

102, 88 S.Ct. 733, 19 L.Ed. 936 (1968),

granted certiorari because the Court of

Appeals for the Third Circuit eviscerated

the thrust of Federal Rule of Civil

Procedure 19 by a misplaced concept that

jurisdiction would be lacking absent the

joinder of a so-called indispensible party.

The Supreme Court acted in support of its

Rule 17.1(c) that the court below has

rendered a decision in conflict with the

applicable decisions of the Supreme Court

and frustrated the rule-making reach of

this Court.

The recalcitrance of the Court of Appeals

for the Third Circuit in Provident

Tradesman Bank & Trust Co. v. Patterson,

supra, in which the Court of Appeals said

that Rule 19 was beyond the reach of the

right of the Supreme Court to fashion such

a rule calls for the same attention from

this court to restore appellate due

process. The pointing out of error on the

part of the panel with chapter and verse

cited, mandated a response and a

determination by the panel of the legal

issue involved.

CONCLUSION

For these reasons, a writ of certiorari

should issue to review the opinion of the

Third Circuit.

aAactfully submitted,

~RAVRAM G. ADLER

Counsel of Record

ADLER & KOPS

Attorney for Petitioner

ie APPENDIX "A"

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

CIVIL ACTION NO. 85-7485

WILLIAM A. CAPRIOLA, JR. and BRYN CAPRIOLA,

Husband/Wife

Vv.

B. F. GOODRICH CO.

ORDER

AND NOW, this 19th day of May, 1987, upon

consideration of plaintiffs' motion for a

new trial and defendant's answer it 1s

hereby Ordered that plaintiffs' motion is

DENIED.

AND IT IS SO ORDERED.

/s/ Clarence C. Newcomer

Clarence C. Newcomer

APPENDIX "B"

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 87-1330

WILLIAM A. CAPRIOLA, JR., and

BRYN G. CAPRIOLA, husband/wife

Appellants

B. F. GOODRICH COMPANY

On Appeal from the United States

District Court for the Eastern District of

Pennsylvania

(D.C. Civil No. 85-7485)

District Judge: Clarence C.

Newcomer

Submitted Under Third Circuit Rule

12(6)

December 14, 1987

Before: SLOVITER and COWEN, Circuit

Judges and DEBEVOISE, District Judge*

(Filed: December 16,1987)

MEMORANDUM OPINION

*Hon. Dickinson R. Debevoise, United States

District Court for the District of New

Jersey, sitting by designation.

SLOVITER, Circuit Judge.

Plaintiff William A. Capriola, Jr.

appeals from the denial of his motion for a

new trial following an adverse jury verdict

in his’ product liability action against

defendant B. F. Goodrich tried in federal

court on the basis of diversity.

Plaintiff's suit was based on injuries he

incurred following the explosion of a B. F.

Goodrich tire, which he claimed he was

changing on a machine for a friend, in his

father's garage which housed some

automobile mechanic equipment. After a

lengthy trial, the jury found that the

product in question was not defective and,

thus, found that the defendant not liable

to plaintiff for his extensive injuries.

Plaintiff bases his appeal on his claim of

three evidentiary errors committed by the

district court.

It was plaintiff's position that the tire

exploded because the protective "beads"

were broken during the manufacturing

process. Plaintiff presented testimeny in

two forms -- eyewitnesses and expert. The

two eyewitnesses to the accident were

plaintiff's father, William A. Capriola,

Sr., and plaintiff's friend who owned the

tire, Jeffrey Weaver. Capriola Sr.

basically testified that he watched

plaintiff use the proper procedures to

change the tire on the machine when the

tire suddenly exploded and threw his son in

the air. Weaver testified that he,

eae ai

indeed, brought the tire to Capriola Sr.'s

garage for changing, but that he was

working on his car when he heard the

explosion = and, therefore, he only saw

Capriola Jr. "flying up in the air." See

App. at 313a. He also testified that,

after the accident, he saw that the tire

was on the floor and the rim was still on

the machine.

Plaintiff's experts, Laren J. Forney, an

expert in tire failures and explosions, and

Campbell Laird, an expert in metallurgy and

fracture, provided extensive testimony

regarding the beading, seating and changing

of all sorts of tires.

B. F. Goodrich presented two of its own

experts to attempt to refute the

allegations of defect in the manufacturing

of the tire. These experts also testified

to their opinion that the "mode of the

accident" was an incorrect procedure on

plaintiff's part. In addition, defendant

presented witnesses who testified to

inconsistent subsequent statements made by

the two eyewitnesses. One witness

testified that the day after the accident

Weaver said he saw the whole accident and

saw plaintiff over-inflate the tire. See

App. at 394a. Another witness testified

that Capriola Sr. told him that the tire

was on the ground and had direct air

running to it. See App. at 44la. Finally,

yet another witness testified that a few

days after the accident Weaver told him

that there wasn't even a tire machine in

the shop on the night of the accident.

See App. at 417a.

Plaintiff contends that Rule 607 does not

permit a witness to be called for the sole

purpose of being a conduit for inadmisible

hearsay evidence. The district court

refused to let the evidence come in as

substantive evidence under Fed. R. Evid.

803(24), and elected instead to give a

limiting instruction that this evidence was

to be used only to ascertain the

credibility of plaintiffs' witnesses.

Hearsay is defined by the Federal Rules of

Evidence as a "a statement, other than one

made by the declarant while testifying at

the trial or hearing, offered in evidence

to prove the truth of the matter asserted."

Fed. R. Evid. 80l(c). The challenged

statements were not offered "to prove the

truth of the matter asserted," but for the

sole purpose of suggesting that Capriola

Sr. and Weaver are prone to tell varying

stories. In fact, the record reflects that

the defendant tried to have _ these

statements accepted for their substantive

————— <<”

value, but the district court would only

authorize their use for credibility

purposes. Fed. R. Evid. 613(b) authorizes

the admission of a prior inconsistent

statement by a witness. The trial judge

clearly and succinctly issued a limiting

instruction to the jury which warned about

the non-factual nature of the lay

testimony. We find no error in the

admission of the testimony.

Plaintiff contends that the foundation

requirement of Fed. R. Evid. 613(a) was not

complied with in the cross-examination of

Capriola Sr. He argues that "defendant's

counsel refused to furnish the complete

statement and the proper foundation was

never laid." Appellant's brief at 41.

Plaintiff fails to show that he raised this

objection when the issue arose at trial.

Nor did he note a Rule 613(a) error in his

motion for a new trial. Accordingly, this

partiuclar objection has not been preserved

for appeal.

Appellant also argues that a Rule 104

proceeding was mandated to pass on the

admissibility of the evidence. The

district court did look at the probative

value/prejudicial effect of the proffered

"hearsay" evidence. That is how it came to

the conclusion that a limiting instruction

was necesssary. Moreover, despite the

assertions of the plaintiff on appeal, the

credibility of all witnesses in court has

Significant probative value.

Finally, the Rule 104(c) “outside-the-

jury" proceeding is only mandated in

proceedings to determine the admissibility

of confessions. See Fed. R. Evid. 104(c).

With all other preliminary matters, the

decision to hold proceedings out of the

10A

hearing of the jury is left to the trial

judge's discretion. We find no abuse of

that discretion here.

Finally, plaintiff argues that the

district court abused its discretion in

refusing to permit plaintiff's proposed

rebuttal regarding tire explosivity.

Plaintiff offered its expert Laird to rebut

defendant's explosivity evidence. The

trial judge found that Laird was not

qualified in the area for which his

testimony was’ offered. A trial judge

exercises broad discretion in accepting or

denying rebuttal testimony. Laird was

offered by the plaintiff only as an expert

in metallurgy and fracture. He could have

been offered at that time as an expert in

other areas, but the plaintiff chose only

the above two. Given this vast opportunity

to have his witness qualified in any field

LIA

without objection from the defendant, the

plaintiff can not later recapture this

foregone opportunity by claiming that his

qualifiation procedure was "cut short" by

the defendant's concession on the matter.

The judge specifically asked if Laird was

to be qualified in any other areas. App.

at 274a. Plaintiff's other expert, Forney,

was explicitly qualified in tire

explosions and failures. Flaintiff did

offer some evidence explosivity in his

case-in-chief via Forney. Plaintiff,

however, failed to offer him on rebuttal.

We therefore hold that the district court

did not abuse its discretion in refusing to

permit the rebuttal testimony offered by

plaintiff.

For the foregoing reasons, we will affirm

the order of the district court denying a

new trial.

L2A

TO THE CLERK:

Please file the foregoing opinion.

/s/ Dolores K. Sloviter

Circuit Judge

APPENDIX "C"

LSA

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 87-1330

WILLIAM A. CAPRIOLA, JR., and

BRYN G. CAPRIOLA, husband/wife

Appellants

Vv.

B. F. GOODRICH COMPANY

SUR PETITION FOR REHEARING

Present: GIBBONS, Chief Judge, SEITZ,

WEIS, HIGGINBOTHAM, SLOVITER, BECKER,

STAPLETON, MANSMANN, GREENBERG, HUTCHINSON,

SCIRICA, COWEN, Circuit Judges, and

DEBEVOISE*, District Judge

ORDER

The petition for rehearing filed by

Appellants, WILLIAM A. CAPRIOLA, JR., and

BRYN G. CAPRIOLA, husband/wife in the

above-entitled case having been submitted

to the judges who participated in the

decision of this court and to all the other

L4A

available circuit judges of the circuit in

regular active service, and no judge who

concurred in the decision having asked for

rehearing, and a majority of the circuit

judges of the circuit in regular active

service not having voted for rehearing by

the court in banc, the petition for

rehearing is denied.

BY THE COURT,

/s/Dolores K. Sloviter

Judge

DATED: January 12, 1988

*Hon. Dickinson R. Debevoise, U. S.

District Court for the District of New

Jersey, sitting by .designation, on

rehearing before original panel only.

APPENDIX "D"

15a

EXERCEPTS OF TRIAL TRANSCRIPT (PP. 106-109)

MR. ADLER: I object to Rychlak's testimony

as to what he overheard between Bill

Capriola, Sr., Ralph Capriola and the other

gentleman whose name was mentioned.

MR. BROGAN: Mike Sharpless or Mark.

MR. ADLER: Mike Sharpless.

THE COURT: In other words, testimony ina

Similar vein presumably of the type we have

already heard.

MR. ADLER: Yes, your Honor.

THE COURT: All right.

MR. - ADLER: Except that it differs in

several important regards. Number one, --

THE COURT: Do you object to anything else?

MR. ADLER: I -- I -=-

THE COURT: I want to get all your

objections now once and for all. Then you

may say a word about then.

MR. ADLER: Okay. I object to the use of

putting this witness on to introduce

hearsay testimony pursuant to 607, similar

to what I previously argued and for which I

have previously briefed your Honor.

I am objecting also under 613 in that the

16a

statement given to me under 613(a) differs

sharply from the proffered offer. And I

also object because it is only a snippet

from --

THE COURT: Why does it differ from the

proffer?

MR. ADLER: Well, I want the whole

statement, your Honor. If I am going to

cross-examine, I don't --

THE COURT: You don't have to argue that.

You have got it.

MR. ADLER: Z don't have the whole

statement.

THE COURT: You have got the statement.

MR. ADLER: This is a paragraph taken out

of a statement.

THE COURT: You have the statement that he

is relying on. I think you are entitled to

that. If there is any more, then he can be

precluded from presenting it. If he has

not either given you an outline in writing

or told you about it, one or the other, in

the event this was not a written statement,

he doesn't have to give you a written

statement, he just simply has to inform

you. I think the Act says, or the rule

says "disclose," doesn't it?

Yes.

The statement need not be shown, nor its

17a

contents disclosed to him at that time, but

on request the same shall be shown or

disclosed to opposing counsel.

That is what he is doing.

MR. ADLER: I think I am entitled to the

context, your Honor.

THE COURT: Well, if he hasn't given it to

you, then he will have some problems with

it. Overruled.

APPENDIX "E"

Llg%a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION NO. 85-7485

WILLIAM A. CAPRIOLA, JR.

and BRYN CAPRIOLA, h/w

Vv.

B. F. GOODRICH CO.

PLAINTIFFS' MOTION FOR A NEW TRIAL

AND NOW COMES PLAINTIFFS, WILLIAM A.

CAPRIOLA, JR. and BRYN CAPRIOLA, and moves

this Honorable Court for a New Trial and in

Support thereof avers the following

reasons:

3. The Honorable Court erred:

(J) In permitting the testimony of

Mr. Mark Rychlak for the purpose of

intsomecian hearsay testimony to impeach

William Capriola, Sr. without proper and

adequate foundation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.