Opposition Brief — Leap v. Malone

Supreme Couit, Us. |

) FILED |

is

JUN 13 1997

No. 96-1798 on 8

CLERK

In The

Supreme Court of the United States

+

October Term, 1996

CHRISTINA LEAP and PAUL SIPPLE, Individually and PAUL

SIPPLE, Executor of the Estate of MARTHA ROSE SIPPLE,

Deceased,

Petitioners,

VS.

PAUL MALONE, ALLOY FABRICATORS, INC. and F&K

LEASING, INC.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

DAVID F. HARROD

Counsel of Record

JEFFREY L. CUNNINGHAM

CARTER, HARROD & CUNNINGHAM

Attorneys for Respondents

P.O. Box 885

One Madison Avenue

Athens, Tennessee 37371-0885

(423) 745-7447

71301 | es

(8GO) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 23 Be enic

ervices, inc.

i

QUESTIONS PRESENTED

1. Whether the United States Courts of Appeal, in unison,

permit a jury to reject expert testimony?

2. Whether the decision of the United States Court of

Appeals for the Sixth Circuit in the present case is congruent

with prior decisions of the Supreme Court of the United States

regarding a jury’s rejection of expert testimony?

3. Whether the decision of the United States Court of

Appeals for the Sixth Circuit in the present case is congruent

with prior decisions of the Sixth Circuit regarding a jury’s

rejection of expert testimony?

ii

LIST OF INTERESTED PARTIES

The Petitioners are correctly identified in the caption of the

case.

The Respondents are correctly identified in the caption of

the case. David F. Harrod of Carter, Harrod & Cunningham is

counsel of record for Respondents.

Each of the Respondents join in this Brief in Opposition.

For the Respondents, neither parent companies nor nonwholly

owned subsidiaries exist.

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TABLE OF CONTENTS

Page

Questions Presented ........---eeeeeeeeeeerrrees i

List of Interested Parties .........---seeeeeeeeeces ii

Table of Contents ..........-cceececcecscecereces iii

Table of Citations .......... cece eccccccccccccees iV

Statement of Jurisdiction ..........---eeeeeeeeeees 1

Statement of the Case .........-eeceeceecceeeeees 1

A. Course of Proceedings and Disposition of the

Case BeleW 2. ccccccccccccccccccccccccecs i

B. Correction of Misstatements in the Petition ... 3

Reasons for Denying the Writ ........---++++eee0: 5

I. The United States Courts Of Appeal, In Accord

With Each Other, Permit A Jury To Reject Expert

Testimony Even If Such Testimony Is

Uncontradicted. ..........ceeeeeececceces 5

Il. The Decision Of The United States Court Of

Appeals For The Sixth Circuit In The Present Case

Is Congruent With Prior Decisions Of The

Supreme Court Of The United States. ........ 11

Ill. The Decision Of The United States Court Of

Appeals For The Sixth Circuit Is Congruent With

Prior Decisions Of The Sixth Circuit. ........ 12

CRIN oc nc cc crc ccc cccescccccccececcccccces 13

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Aetna Life Ins. Co. v. Kelley, 70 F.2d 589 (8th Cir.

SUED. A tbe ce devennndssadi.ces aeeeeseceakaeen 9

Airline Constr., Inc. v. Barr, 807 S.W. 2d 247 (Tenn. Ct.

Age. TORR 2 occccavcscinvossccacctevnseues es 11

Aldridge v. Baltimore and Ohio R.R., 789 F.2d 1061 (4th

« 2 Serer re rrr ye Tee ee ere rere 5

Bene v. Jeantet, 129 U.S. 683 (1889) .............- 11, 12

Charles of the Ritz Distributors v. Federal Trade Comm'n,

SOS TOG Ge Ce Gs BOE) hee vn cctenseskuecns 10

Dayton Power & Light Co. v. Public Util. Comm'n, 292

es OE sw kka ke enae ened ss eaeeeeesé 11

Del Mar Avionics, Inc. v. Quinton Instrument Co., 836

ae Ee re, SE. BSF vid ccaccvesaaiss tess 5, 6

Dickerson v. Amax, Inc., 739 F.2d 270 (7th Cir. 1984)

PE AMEE PE On POT er Pe Pe ee eee Tee 5

England v. Burns Stone Co., 874 S.W. 2d 32 (Tenn. Ct.

Ag, TETAD -sivics ceneecksaresicdscivesesines 10

Contents

Page

Estate of Fitts v. Commissioner, 237 F.2d 729 (8th Cir.

GOGED ccc ccccccinccnscccscsncceveneecssosese 9, 10

Fisher v. Vassar College, 70 F.3d 1420 (2d Cir. 1995)

Ce Ie EEE Oe ere et ee Pee LE ee 5, 6

Gibson v. Ferguson, 562 S.W. 2d 188 (Tenn. Ct. App.

IDTG) occcccssccvdceccveccovcccsssvesossoocs 10

Gloyd v. Commissioner, 63 F.2d 649 (8th Cir. 1953)

a ri a pale een a eeaeN Cheats 9

Greenfeld v. Commissioner, 165 F.2d 318 (4th Cir. 1947)

ae eeanaaeeyesé is 9, 10

Gregg v. U.S. Indus., 887 F.2d 1462 (11th Cir. 1989)

IE AP EI TEE OEE TTT CR TT ee ee ee 5, 6

Greyhound Lines-West v. Marshall, 575 F.2d 759 (9th

Che, 1DTB). occccccccccccvnccsescesccceceseees 5

Howell v. Gould, Inc., 800 F.2d 482 (Sth Cir. 1986) .. 5

Jones v. N.V. Nederlandsch-Amerikaansche Stoomvaart

Maatschappij, 374 F.2d 189 (3d Cir. 1966) ....... 8

Moe v. Avions Marcel Dassault-Breguet Aviation, 727

F.2d 917 (10th Cir. 1984), cert. denied, 469 U.S. 853

6:7. ) Se 5,7, 8

Moore v. Johns-Manville Sales Corp., 781 F.2d 1061 (Sth

Cir. 1986) .....ccccccccccccecccccccccccecess 8

vi

Contents

Page

Mopkins v. St. Louis Die Casting Corp., 569 F.2d 454

(Oth Che. 290ED. cccckkcdsncncwbibsctetsccsensas 5,7

Potucek v. Cordeleria Lourdes, 310 F.2d 527 (10th Cir.

1962) ..ccccsudosanniedesdadahdshiecaeetcse 8,9

Powers v. Bayliner Marine Corp., 83 F.3d 789 (6th Cir.

1996), cert. denied, 136 L. Ed. 375 (1997) ...... 3, 42, 13

Quinones-Pacheco v. American Airlines, Inc., 979 F.2d

1 (Ret Che, SORE. o:cnrs winnaGabnn behdd shiasecss 5, 7, 8

Remington Arms Co. v. Wilkins, 387 F.2d 48 (Sth Cir.

1967) on c0ciitnddantniebeensee dana tens 7

Roberts v. Roberts, 827 S.W. 2d 788 (Tenn. Ct. App.

1991) ..cc..cecontmibahebassceteetan bens eae 10

Roth Office Equip. Co. v. Gallagher, 172 F.2d 452 (6th

Che, 9G. <scncdndwicinntaan bcewekns Koen 13

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620

CODE] . vc scencdmsiitigtsnees nik ish saee aden 11

Seaboard Sur. Co. v. First National Bank of Montgomery,

263 P26 SEB COG Cie, 19F9) oan. ccc ctiescccscss 7

Security-First Nationa! Bank of Los Angeles v. Lutz, 322

PDE FOB GG Ge ho nc cicevedisesccs des 9

Spring Co. v. Edgar, 99 U.S. 645 (1878) ........... 11

vii

Contents

Page

Stafos v. Missouri Pacific R.R., 367 F.2d 314 (10th Cir.

1966) 2... sec eee cececcecccceceeeeeveeeesecee 8,9

The United States v. 0.161 Acres of Land, More or Less,

Situated in the City of Birmingham, Ala., 837 F.2d

S| ee 12

United States Steel Corp. v. Occupational Safety and

Health Review Comm'n., 537 F.2d 780 (3d Cir. 1976)

eel cata ge eheees ches 00 bb 5ue oases 5, 6, 8

Statute Cited:

EE iin bho 65 edd bee ene 640409 60.0% ]

Rule Cited:

i Se & rer rr rrr Te rrr rer rT rere err 3

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1

Respondents respectfully request that this Honorable Court

deny the Petition for Writ of Certiorari (“Petition”) by which

Petitioners seek review of an Opinion of the United States Court

of Appeals for the Sixth Circuit. The Opinion for which

Petitioner seeks review is Leap v. Malone, No. 95-6470 (6th

Cir. Dec. 23, 1996).'

STATEMENT OF JURISDICTION

The Petitioners have timely filed their Petition for Writ of

Certiorari. The Petitioners have properly invoked the jurisdiction

of this Court pursuant to 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition of the Case Below

The present case arises out of a vehicular accident which

occurred on November 25, 1992, in McMinn County,

Tennessee, between a 1988 Dodge automobile driven by

Petitioner Paul Sipple, the grandfather of Petitioner Christina

Leap, and a 1986 tractor-trailer driven by Respondent Paul E.

Malone. (R. 1.)? As a result of the accident, Petitioner Leap

sustained serious injuries resulting in extensive hospitalization

and therapy. Petitioner Leap incurred pre-trial medical expenses

in the amount of Two Hundred Forty-Six Thousand Six

Hundred Seventy-Seven and 83/100 Dollars ($246,677.83).

(R. 78: Carol Sipple at Tr. 131.)

Prior to trial, Respondents Malone and F & K Leasing,

1. For the convenience of the Court, all citations to the foregoing

Opinion are to a copy of the Opinion incorporated in the Petition as Appendix

A.

2. All citations to transcripts, exhibits and a record in the underlying

case are to such as were submitted to the United States Court of Appeals for

the Sixth Circuit.

2

Inc., admitted liability for compensatory damages sustained by

Petitioner Leap, leaving for resolution the issues of the amount

of compensatory damages and the entitlement of Petitioner Leap

to recovery of punitive damages. Another issue for resolution

was the liability, if any, of Alloy Fabricators, Inc., for the

negligence of Malone. Petitioners had filed suit against Alloy

Fabricators, Inc., the lessee of the tractor-trailer which, at the

time of the accident, Malone was driving for his employer,

F & K Leasing, Inc.

The case was tried in the United States District Court for

the Eastern District of Tennessee at Chattanooga before the

Honorable Curtis L. Collier and a jury of nine (9) men and

women. The trial began on Monday, July 24, 1995, and

concluded on Wednesday, July 26, 1995. At the conclusion of

Petitioner’s proof, the District Court directed a verdict in favor

of the Respondents on the issue of punitive damages. Following

completion of all proof, argument of counsel and the charge of

the Court, the jury retired for deliberations and returned a verdict

in favor of Leap and against Malone and F & K Leasing, Inc., in

the total amount of Seven Hundred Fifty-Four Thousand Six

Hundred Seventy-Seven and 83/100 Dollars ($754,677.83).

By jury verdict, Alloy Fabricators, Inc., was dismissed from

the case. (R. 64.)

Following the trial, counsel for Petitioner Leap timely filed

Motions for Additur and/or New Trial on the issues of punitive

damages, damages for Petitioner Leap’s loss of earning capacity,

exclusion of an accident report and exclusion of certain

testimony during the trial. The foregoing Motions were denied

and overruled in a Memorandum and Order of the United States

District Court for the Eastern District of Tennessee at

Chattanooga entered on September 19, 1995. (Pet. at App. D.)

Consequently, counsel for Leap filed a Notice of Appeal and

presented the foregoing issues for resolution by the United States

3

Court of Appeals for the Sixth Circuit. In an Opinion entered

December 23, 1996, the United States Court of Appeals for the

Sixth Circuit affirmed the decision of the District Court.

Subsequently, Petitioners moved for a Rehearing En Banc or,

alternatively, for a Panel Hearing which was denied by Order of

the United States Court of Appeals for the Sixth Circuit entered

February 10, 1997. (Pet. at App. B.)

B. Correction of Misstatements in the Petition

The Opinion of the United States Court of Appeals for the

Sixth Circuit correctly describes the underlying facts of the

present case. However, the Petition contains misstatements

regarding the trial phase of the case. Pursuant to Sup. Ct. R.

15.2, Respondents respectfully bring to the attention of this

Honorable Court misstatements in the Petition.

Petitioner states categorically that the testimony of

Petitioner’s experts, particularly the testimony of Anthony

Gamboa, Ph.D., was both “uncontradicted” and “unimpeached.”

(Pet. at 5, 8, 9, 17.) The Petition further misstates that no rebuttal

testimony contradicts the expert testimony pertaining to

Petitioner Leap’s education, earning capacity and other issues.

(Pet. at 9, 11.)

The foregoing misstatements are clearly contrary to the

record below. Dr. Gamboa’s report, (Ex. 64-R. 80: Ex. 64 at

Tr. 284), and his testimony on cross-examination, (R. 80: Dr.

Gamboa at Tr. 314-15), conclusively establish that he neither

reviewed nor relied upon the deposition testimony of Petitioner

Leap’s treating physicians when arriving at his own opinions

regarding Leap’s loss of earning capacity. Likewise, Dr. Gamboa

neither reviewed nor relied upon Petitioner Leap’s transcript

from Northern Kentucky Univers:ty where she was attending

college classes following the accident. It is undisputed that, when

he arrived at his opinions and conclusions, Dr. Gamboa did not

4

have the benefit of information relating to the course work

completed by Petitioner Leap following the accident in question.

Dr. Gamboa’s testimony that Plaintiff would be confined

to a “sheltered workshop setting,” (R. 80: Dr. Gamboa at Tr.

313), is incredible, given the fact that Petitioner Leap testified

that, following the accident in question, she had completed

college courses in psychology, chemistry, sociology, pre-calculus

and an analytical writing course and that she would be enrolled

full-time in Northern Kentucky University in the fall of 1995

for courses in physics, statistics and biological terminology, (R.

80: Christina Leap at Tr. 269, 271-72.) Petitioner Leap testified

that she is working toward completion of a college degree with

a physical therapy major and that her occupational goal is to

become a physical therapist. (R. 80: Christina Leap at Tr. 272-

73.)

Petitioner Leap’s experts gave inconsistent testimony. Dr.

Gamboa testified that, in his opinion, Petitioner Leap was

occupationally disabled from a neuropsychological perspective.

(R. 80: Dr. Gamboa at Tr. 287-88). He was unaware that Dr.

Dennis Sprague, Petitioner’s expert neuropsychologist, had

testified that he could not state whether or not Petitioner Leap

would ever regain her pre-accident level of intelligence. (R. 80:

Dr. Dennis Sprague at Tr. 276; Dr. Sprague’s deposition: p.

32.)

The evidence and proceedings in the District Court negate

Petitioner's categorical assertion of uncontradicted, unimpeached

testimony. The Court of Appeals, in its Opinion, made the

following conclusion:

Defense counsel conducted an effective

cross-examination of Dr. Gamboa, however,

exposing apparent weaknesses in his

opinion. And the jury could reasonably have

concluded that the dismal picture of Miss

5

Leap’s future presented by Dr. Gamboa was

contradicted by other evidence. Miss Leap

herself testified that she hoped to become a

physical therapist and had resumed — albeit

with tutorial assistance — a college

curriculum.

(App. A at A-7.)

REASONS FOR DENYING THE WRIT

L

THE UNITED STATES COURTS OF APPEAL, IN

ACCORD WITH EACH OTHER, PERMIT A JURY TO

REJECT EXPERT TESTIMONY EVEN IF SUCH

TESTIMONY IS UNCONTRADICTED.

Each of the Circuits upholds the general rule that the trier-

of-fact is under no obligation to accept the testimony of an

expert witness even if the testimony of the expert witness is

unimpeached or uncontradicted. Aldridge v. Baltimore and Ohio

R.R., 789 F.2d 1061, 1065 (4th Cir. 1986); Del Mar Avionics,

Inc. v. Quinton Instrument Co., 836 F.2d 1320, 1325 (Fed.

Cir. 1987); Dickerson v. Amax, Inc., 739 F.2d 270, 273-74

(7th Cir. 1984); Fisher v. Vassar College, 70 F.3d 1420, 1447-

48 (2d Cir. 1995); Gregg v. U.S. Indus., 887 F.2d 1462, 1469-

70 (llth Cir. 1989); Greyhound Lines-West v. Marshall, 575

F.2d 759, 762 (9th Cir. 1978); Howell v. Gould, Inc., 800 F.2d

482, 485 (Sth Cir. 1986); Moe v. Avions Marcel Dassault-

Breguet Aviation, 727 F.2d 917, 930 (10th Cir. 1984), cert.

denied, 469 U.S. 853 (1984); Mopkins v. St. Louis Die Casting

Corp., 569 F.2d 454, 455 (8th Cir. 1978); Powers v. Bayliner

Marine Corp., 83 F.3d 789, 797-98 (6th Cir. 1996), cert. denied,

136 L. Ed. 375 (1997); Quinones-Pacheco v. American Airlines,

Inc., 979 F.2d 1, 5 (ist Cir. 1992); United States Steel Corp. v.

Occupational Safety and Health Review Comm'n., 537 F.2d

6

780, 783-84 (3d Cir. 1976). Contrary to Petitioner’s assertion,

no direct and unresolved conflict exists between the Circuits

regarding a jury’s refusal to accept expert testimony.

To force a jury to render its decision within the parameters

of expert testimony is to place the responsibility for the ultimate

decision in a case in the hands of experts rather than the hands

of the Court. Del Mar Avionics, 836 F.2d at 1325. In Del Mar

Avionics, the defendant asserted that the Trial Court “erred in

failing to construe the patent terms” of an invention for the

electronic detection of heart abnormalities “in accordance with

the testimony” of the defendant’s patent expert. Jd. On appeal,

the United States Court of Appeals for the Federal Circuit

concluded that “a district court is not obliged to adopt a

conclusion stated by an expert witness.” Jd. Even though the

expert testimony in the underlying case was “generally correct

and accurate,” the court was obligated only to “weigh expert

and other testimony; it is the Court’s, not the expert’s,

responsibility to decide the case.” Jd. The “finder of fact” has

no obligation to accept the uncontradicted testimony of an expert

simply because the expert is qualified as such. Fisher, 70 F.3d

at 1447.

“Uncontradicted expert opinion testimony is not conclusive,

and the jury has every right not to accept it.” Gregg, 887 F.2d

at 1470. In Gregg, the defendant challenged the jury’s rejection

of the testimony of the defendant’s experts regarding valuation

of the plaintiff’s company. Jd. at 1469-70. On appeal, the United

States Court of Appeals for the Eleventh Circuit noted that the

defendant neither objected “to the proposed jury instruction

regarding the expert testimony . . . nor did it dispute the charge

given at trial that the jury was to consider the expert testimony

and give it the weight the jury determined the testimony

deserved.” Id. at 1470 (footnote omitted). The court concluded

that the expert testimony was not conclusive and that the jury

had “every right not to accept it.” Jd.

7

In like manner, the Petitioner in the present case neither

objected to the jury instructions nor disputed at trial that the

jury was not obligated to accept the testimony of the experts.

(R. 80: Jury Charge at Tr. 365.) “Jurors are not bound to accept

the uncontradicted opinions of expert witnesses but have a right

to use their own common sense and experience and to draw ail

reasonable inferences from the physical facts and occurrences.”

Remington Arms Co. v. Wilkins, 387 F.2d 48, 54 (Sth Cir. 1967)

(citing Seaboard Sur. Co. v. First National Bank of Montgomery,

263 F.2d 868, 871 (Sth Cir. 1959)).

“Opinions testified to by an expert are certainly not binding

on the court.” Mopkins, 569 F.2d at 455. Testimony by an expert

witness is “subject to the same tests and credibility and weight

as is any other admissible evidence.” Moe, 727 F.2d at 930.

“The rule is well settled that expert opinion testimony, even

if not directly contradicted, is not ordinarily binding on a jury

.... the rule is particularly apropos in a case where the expert’s

testimony, read in the larger context of the evidence as a whole,

lacks great convictive force.” Quinones-Pacheco, 979 F.2d at

5. In Quinones-Pacheco, the plaintiff, who alleged that she had

suffered injuries in a bumpy flight through turbulent weather,

appealed the verdict in favor of the defendant, American Airlines,

and challenged the jury’s treatment of her expert’s medical

opinion testimony. The Court of Appeals identified “four major

weaknesses” with the expert’s medical opinion on causation.

Id. The Court of Appeals concluded that, even though the

expert’s medical opinion testimony was not directly contradicted,

the testimony, “in the larger context of evidence as a whole”

lacked “great convictive force” and the jury was not bound by

the testimony. Jd.

In the present case, the “convictive force” of the testimony

of Petitioner’s expert, Dr. Gamboa, was decreased in the “larger

context of the evidence as a whole” by the inadequate basis for

Dr. Gamboa’s report and testimony, the deposition testimony

of Petitioner’s treating physicians, the post-accident educational

achievements of the Petitioner at Northern Kentucky University

and inconsistencies with the testimony of Dr. Sprague, an expert

for the Petitioner. Jd. (R. 80: Dr. Gamboa at Tr. 314-15; R. 80:

Christina Leap at Tr. 269, 271-72; R. 80: Dr. Sprague at Tr.

276.) Even if Dr. Gamboa’s testimony stood unassailed in “the

larger context of the evidence as a whole,” his testimony would

not be “ordinarily binding on a jury.” Quinones-Pacheco, 979

F.2d at 5. “Expert testimony need not be accepted even if

uncontradicted.” United States Steel, 537 F.2d at 783; see Moore

v. Johns-Manville Sales Corp., 781 F.2d 1061, 1064-65 (Sth

Cir. 1986) (concluding that juries “are not bound to follow the

experts”); Jones v. N.V. Nederlandsch-Amerikaansche

Stoomvaart Maatschappij, 374 F.2d 189, 190 (3d Cir. 1966).

The alleged conflicts among the circuits regarding the

treatment of expert testimony disappear upon a closer analysis

of the cases cited by Petitioner. This Court may easily reconcile

the decisions in Potucek v. Cordeleria Lourdes, 310 F.2d 527,

531 (10th Cir. 1962), and Stafos v. Missouri Pacific R.R., 367

F.2d 314, 317 (10th Cir. 1966), with the later decision by the

Court of Appeals for the Tenth Circuit in Moe, 727 F.2d at

930. The cases of Stafos and Potucek speak of a duty to honor

“controlling, positive, uncontradicted and unimpeached”

evidence. Potucek, 310 F.2d at 531; Stafos, 367 F.2d at 317.

The decision in Moe states that “expert witness testimony is

subject to the same tests of credibility and weight as is any

other admissible evidence.” Moe, 727 F.2d at 930. As required

by Moe, the trier of fact determines the weight to be given to

expert and any other testimony. If the trier of fact finds such

testimony to be “controlling, positive, uncontradicted and

” the trier of fact must honor its finding. Stafos,

367 F.2d at 317. The earlier decisions of Stafos and Potucek do

not absolve the jury of its paramount responsibility to evaluate

the credibility of testimony and to weigh the testimony with all

the evidence.

9

Furthermore, the expert testimony of Dr. Gamboa in the

present case was neither unimpeached nor uncontradicted. The

Court of Appeals in Stafos clearly provides that, if the evidence

is not “all one way,” the jury has absolutely no responsibility to

“honor” the expert testimony. Stafos, 367 F.2d at 317. Likewise,

the Court of Appeals in Potucek, in dicta of the case, discusses

a responsibility to honor uncontradicted and unimpeached

evidence only where “no circumstance reflected on the record

casts doubt on its verity.” 310 F.2d at 531.

Petitioner’s reliance upon Aetna Life Ins. Co. v. Kelley, 70

F.2d 589, 593 (8th Cir. 1934), is without merit, and the rule in

Aetna upon which Petitioner relies is inapplicable to the present

case. In Aetna, the Court of Appeals concluded that lay

witnesses were incompetent to testify about the causation and

existence of specific diseases where such causation or existence

is not “open to the senses.” Jd. The issue in Aetna revolved not

around an alleged obligation of the jury to accept expert

testimony, but, rather, the competency of lay witnesses to testify

regarding medical facts in issue.

Other cases cited by the Petitioner in support of her position

clearly support the decision of the Court of Appeals for the

Sixth Circuit in the present case. The Court of Appeals for the

Ninth Circuit in Security-First National Bank of Los Angeles v.

Lutz, 322 F.2d 348, 355 (9th Cir. 1963), states that “expert

testimony ... is not conclusive upon the trier of fact, even

though unimpeached and uncontradicted, since the trier may

apply his own experience or knowledge in determining how

far to follow the expressed opinion.” The Court of Appeals for

the Eighth Circuit in Estate of Fitts v. Commissioner, 237 F.2d

729, 732-33 (8th Cir. 1956), states that “the court is not bound

by the opinion of the experts” and that expert testimony may

be accepted “in toto, in part, or not at all.” Jd. (citing Gloyd v.

Commissioner, 63 F.2d 649, 650 (8th Cir. 1953)). Likewise,

reliance upon Greenfeld v. Commissioner, 165 F.2d 318, 319

(4th Cir. 1947), because of the foregoing analysis, controverts

10

rather than bolsters the Petitioner’s argument. Fitts, Greenfeld

and Charles of the Ritz Distributors v. Federal Trade Comm'n,

143 F.2d 676, 679 (2d Cir. 1944), are further distinguished from

application to the present case by their underlying subject matter

which invokes federal regulatory procedures and rules that are

irrelevant in the present civil action.

Furthermore, under substantive Tennessee law, which is

applicable in the present case, a jury is under no obligation to

accept expert testimony as conclusive, but may give such

testimony the weight which the jury believes it is entitled in

view of all the evidence presented in a trial. England v. Burns

Stone Co., 874 S.W. 2d 32, 38 (Tenn. Ct. App. 1993). “Jurors

are not required to accept expert or opinion evidence as

conclusive, even though uncontradicted; but may draw upon

the knowledge and experience which may be supposed to be

common to all men and arrive at a conclusion contrary to expert

testimony.” Jd. “Even when no opposing expert testimony is

offered, the trier of fact is still bound to decide the issue upon

its own fair judgment, assisted by expert testimony.” Roberts v.

Roberts, 827 S.W. 2d 788, 795 (Tenn. Ct. App. 1991) (citing

Gibson v. Ferguson, 562 S.W. 2d 188, 190 (Tenn. Ct. App.

1976)).

The District Court in the present case correctly charged the

jury that it was not required to accept the testimony of any

expert and that, in determining how much weight to give to an

expert’s opinion, consideration should be given to the

qualifications of the expert witness and the basis of the witness’s

conclusions. The District Court further charged the jury that it

alone had the responsibility of determining the weight to be

given to the testimony of an expert witness. (R. 80: Jury Charge

at Tr. 365.) Petitioner raised no challenge to any portion of the

charge delivered by the District Court, and the jury charge clearly

followed applicable Tennessee law on the issue of the weight, if

any, to be given to the opinion testimony of an expert witness.

11

See Airline Constr., Inc. v. Barr, 807 S.W. 2d 247, 270-71

(Tenn. Ct. App. 1990).

Il.

THE DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT IN THE

PRESENT CASE IS CONGRUENT WITH PRIOR

DECISIONS OF THE SUPREME COURT OF THE

UNITED STATES.

The Supreme Court of the United States has previously

ruled, regarding expert testimony, that, “if the Court admits the

testimony, then it is for the jury to decide whether any, and if

any what, weight is to be given to the testimony.” Spring Co. v.

Edgar, 99 U.S. 645, 658 (1878). Expert opinions “thus offered,

even if entitled to some weight, have no such conclusive force

that there is error of law in refusing to follow them. This is true

of opinion evidenced generally, whether addressed to a jury or

to a judge or to a statutory board.” Sartor v. Arkansas Natural

Gas Corp., 321 U.S. 620, 627 (1944) (quoting Dayton Power

& Light Co. v. Public Util. Comm'n, 292 U.S. 290, 299 (1934)).

The decision of the Court of Appeals for the Sixth Circuit in

the present matter is in harmony with United States Supreme

Court jurisprudence and neither directly nor indirectly

contravenes the decision of any opinion by the Supreme Court

of the United States. :

The case of Bene v. Jeantet, 129 U.S. 683 (1889), is

distinguished from the present case on several points. In Bene,

the Supreme Court affirmed the decision of the Circuit Court of

the United States for the Southern District of New York to

dismiss the plaintiff's bill without prejudice because the plaintiff

had failed to prove his sole issue of alleged infringement on a

patent for an invention for the refinement of hair. Jd. at 684-88.

After reviewing the evidence presented at trial, including

testimony of experts for both parties, the Supreme Court

12

concluded that the “complainants did not make out a case of

infringement” and that there was “not a preponderance of

evidence in their favor.” Jd. at 688. The Supreme Court in Bene

did not mandate that the trier of fact in the lower court accept

uncontradicted or controlling expert testimony. Rather, the

Supreme Court upheld the responsibility of the trier of fact to

weigh the testimony and evaluate its credibility. -

Ii.

THE DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT IS

CONGRUENT WITH PRIOR DECISIONS OF THE

SIXTH CIRCUIT.

The United States Court of Appeals for the Sixth Circuit

clearly upholds the rule that a jury is not required to accept

expert testimony even though such testimony may be

uncontradicted and unimpeached. Powers, 83 F.3d at 797. In

Powers, the plaintiffs challenged the following instruction

regarding treatment of the testimony of the plaintiffs’ expert:

You are not required to accept testimony even

though the testimony is uncontradicted and

the witness is not impeached.

Id. The Court of Appeals held that the trial court did not err “in

so instructing the jury.” Id. “The jury is instructed that it is

completely free to accept or reject an expert’s testimony, and to

evaluate the weight given such testimony in light of the reasons

the expert supplies for his opinion.” Jd. (quoting The United

States v. 0.161 Acres of Land, More or Less, Situated in the

City of Birmingham, Ala., 837 F.2d 1036, 1040-41 (11th Cir.

1988)).

The decision of the Court of Appeals in the present case

regarding the testimony of the Petitioner’s expert, which

13

testimony stood neither uncontradicted nor unimpeached, is

clearly consistent with the foregoing rule in Powers, and,

therefore, consistent with the doctrine of stare decisis. The rule

in Roth Office Equip. Co. v. Gallagher, 172 F.2d 452, 455

(6th Cir. 1949), if it remains valid, does not control the decision

of the District Court in the present case because the testimony

of the Petitioner’s expert does not satisfy the stringent elements

for the application of Roth. In the present case, the testimony

of Petitioner’s expert was effectively disputed, and matter upon

which the witness testified was that upon which the jury, in view

of contrary evidence, could exercise its independent judgment.

CONCLUSION

The decision of the United States Court of Appeals for the

Sixth Circuit to permit the jury in the present case to reject

expert testimony is in accord with prior decisions of the Court

of Appeals for the Sixth Circuit, the Supreme Court of the United

States and similar decisions throughout the Courts of Appeal in

each of the federal circuits. Therefore, this Honorable Court

should deny the Petition for Writ of Certiorari.

Respectfully submitted,

DAVID F. HARROD

Counsel of Record

JEFFREY L. CUNNINGHAM

CARTER, HARROD & CUNNINGHAM

Attorneys for Respondents

P.O. Box 885

One Madison Avenue

Athens, Tennessee 37371-0885 —

(423) 745-7447