Marsee v. United States Tobacco Co., 866 F.2d 319

U.S. Court of Appeals for the Tenth Circuit

1989

Chapter

12

Title

Opinion Testimony - Lay and Expert

Page

558

Topic

705: allows facts or data on cross-examination that would otherwise be inadmissible.

Quick Notes

The Pl brought a products liability suit against a Tobacco company, alleging their snuff cause his gum cancer.  The testimony of details surrounding other cancer cases was excluded.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

o    The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise.

o    The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Fed. R. Evid. 705

o         Permits inquiry on cross-examination into the facts underlying an expert's opinion even if those facts would be otherwise inadmissible.

Substance was admitted

o         The substance of Dr. Westbrook's telephone conversations was admitted into evidence.

Jury head the doctor say he was aware

o         The jury thus heard the doctor testify that he was aware of other cases of oral cancer among young people who chewed tobacco.

Detail descriptions were excluded

o         Only the detailed descriptions of these cases were excluded.

He did not testify the cases played any role in the formulation of his opinion

o         Further, a careful review of Dr. Westbrook's testimony reveals that at no time during his lengthy direct and cross-examinations, when his opinions and their bases were extensively explored, did he testify that these cases played any role in the formulation of his opinions.

Only on redirect when cases were ONLY mentioned

o         It was only on redirect that Dr. Westbrook mentioned these cases, and even then he did not state that they played a part in forming his opinions.

The Pl is not affected, since the doctor did not actually CONNECT the cases to his specific OPINION

o         While it can be surmised that these cases helped to reinforce those opinions, the fact that Dr. Westbrook did not mention them in connection with any specific opinion precludes any finding that the trial court's ruling affected a substantial part of plaintiff's case.

Court - Holding

o         The court concluded the lower court properly excluded appellant's expert from testifying in detail about the facts that helped him to form his opinions. The court observed the opinions themselves were not excluded and the facts at issue amounted to hearsay. The court further found the rulings did not prejudicially affect a substantial right of appellant.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o    Whether expert opinion can introduce detail of other cases that helped him form his opinion?  No.

Procedure

Trial

o         The United States District Court for the Western District of Oklahoma entered a judgment in favor of appellee tobacco company in appellant administratrix's products liability suit

Appellant

o         Affirmed

o         The court concluded the lower court properly excluded appellant's expert from testifying in detail about the facts that helped him form his opinions. The court observed the opinions themselves were not excluded and the facts at issue amounted to hearsay. The court further found the rulings did not prejudicially affect a substantial right of appellant.

Facts/Cases

Discussion

Key Phrases

Rules/Laws

Pl - Marsee

Df - United States Tobacco Co

Description

o         The plaintiff, Betty Ann Marsee, brought this products liability action against the defendant, United States Tobacco Company, on behalf of the estate of her late son, Marvin Sean Marsee.

o         Plaintiff alleged that defendant's snuff products caused her son to develop oral cancer which led to his early death.

o         The case was tried to a jury which returned a verdict in favor of defendant.

Plaintiff contends - trial court erred by sustaining defendant's hearsay objection

o         That the trial court erred by sustaining defendant's hearsay objection to testimony proffered by Dr. Kent Westbrook, one of plaintiff's experts, on recent cases of oral cancer among young people who dip snuff.

o         Dr. Westbrook was called by plaintiff in her case-in-chief and again in rebuttal to testify on the issue of causation.

Direct Examination

Dr. Westbrook Testimony - the use of snuff is a cause of oral cancer

Testimony based on experience

o         Dr. Westbrook expressed his opinion that, in general, the use of snuff is a cause of oral cancer.

Testimony based on review of Seans case history

o         He also expressed the opinion that Sean Marsee's cancer of the tongue was caused by use of defendant's snuff products.

o         The former opinion was based on Dr. Westbrook's experience in treating oral cancer patients and on his review of the literature on oral cancer.

o         The latter opinion was based on his review of Sean Marsee's case history.

Redirect Examination

Was aware of other patients who had used snuff

o         Dr. Westbrook testified as follows that he was aware of other young oral cancer patients who had used snuff:

o         "Q. . . . Do you have any knowledge that would be relied upon generally by people in your field of recent cases of oral cancer in young people who are snuff dippers?

o         "A. There are some cases that I have talked to doctors about that appear to be oral cancers associated with snuff dipping. These are cases that [plaintiff's counsel] gave me the name of the doctor.  I called the doctor and talked with them about the patients."

Sustained Objection

Trial Court - Sustained Objection

o         Following this exchange, the trial court sustained defendant's hearsay objection to any further testimony by Dr. Westbrook on the details of these conversations.

Did not exclude awareness

o         The trial court did not strike the testimony of Dr. Westbrook that he was aware of other oral cancer cases among young snuff dippers.

Excluded detail about specific cases

o         It simply excluded the details of what he had been told over the telephone about these cases

Fed. R. Evid. 705

o         Permits inquiry on cross-examination into the facts underlying an expert's opinion even if those facts would be otherwise inadmissible.

Substance was admitted

o         The substance of Dr. Westbrook's telephone conversations was admitted into evidence.

Jury head the doctor say he was aware

o         The jury thus heard the doctor testify that he was aware of other cases of oral cancer among young people who chewed tobacco.

Detail descriptions were excluded

o         Only the detailed descriptions of these cases were excluded.

He did not testify the cases played any role in the formulation of his opinion

o         Further, a careful review of Dr. Westbrook's testimony reveals that at no time during his lengthy direct and cross-examinations, when his opinions and their bases were extensively explored, did he testify that these cases played any role in the formulation of his opinions.

Only on redirect when cases were ONLY mentioned

o         It was only on redirect that Dr. Westbrook mentioned these cases, and even then he did not state that they played a part in forming his opinions.

The Pl is not affected, since the doctor did not actually CONNECT the cases to his specific OPINION

o         While it can be surmised that these cases helped to reinforce those opinions, the fact that Dr. Westbrook did not mention them in connection with any specific opinion precludes any finding that the trial court's ruling affected a substantial part of plaintiff's case.

AFFIRMED

Rules

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

o    The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise.

o    The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Class Notes

He is not basing his opinions on these other cases.

o    If he was, then it could come in.

Can a trial judge appoint an expert?  Yes.

Can court do it on its own?  Sua Sponte or by counsel.

Can the court compel an expert who does not want to be?  No.  Expert has to accept assignment.

What can parties do once  he is appointed?  Both parties can depose him, call  him, cross-examine him since he is not on your side.

What should you be worried about here?  What are you afraid of if he disagrees with you?  A court appointed expert would probably have more credibility.