                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-1995

Asplundh Mfg v Benton Harbor
Precedential or Non-Precedential:

Docket 94-1095




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Asplundh Mfg v Benton Harbor" (1995). 1995 Decisions. Paper 170.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/170


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                      _______________________

                      Nos. 94-1095 and 94-1201
                      _______________________

                ASPLUNDH MANUFACTURING DIVISION,
             a Division of Asplundh Tree Expert Co.;
              NATIONAL UNION FIRE INSURANCE COMPANY
                       OF PITTSBURGH, PA.

                     Asplundh Manufacturing Division and
                    National Union Fire Insurance Company
                              of Pittsburgh, PA
                          Appellants in No. 94-1201

                                 v.

                     BENTON HARBOR ENGINEERING,

                          Benton Harbor Engineering
                           Appellant in No. 94-1095

             ______________________________________

         On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                   (D.C. Civ. No. 89-cv-00252)
             ______________________________________

                      Argued: August 12, 1994

          Before:     BECKER, ALITO, Circuit Judges, and
                    GIBSON, Senior Circuit Judge*


                      (Filed   June 20, l995 )



                     BASIL A. DiSIPIO, ESQUIRE (ARGUED)
                     THOMAS FINARELLI, ESQUIRE
                     Lavin, Coleman, Finarelli & Gray
                     Penn Mutual Tower, 12th Floor

*
 . Honorable John R. Gibson, Senior United States Circuit Judge
for the Eighth Circuit Court of Appeals, sitting by designation.
                     500 Walnut Street
                     Philadelphia, PA 19106

                     Attorneys for Asplundh Manufacturing
                     Division, a Division of Asplundh Tree
                     Expert Co. and National Union Fire
                     Insurance Co. of Pittsburgh


                     JOHN M. CORCORAN, ESQUIRE (ARGUED)
                     ROBERT G. KELLY, JR., ESQUIRE
                     Kelly, McLaughlin & Foster
                     1700 Atlantic Building
                     260 South Broad Street
                     Philadelphia, PA 19102

                     Attorneys for Benton Harbor Engineering


                   ____________________________

                       OPINION OF THE COURT
                   _____________________________

BECKER, Circuit Judge.


           The defendant, Benton Harbor Engineering ("Benton

Harbor"), appeals from an order of the district court denying its

motion for a new trial, and also from a judgment against it on a

contribution claim brought by Asplundh Tree Expert Co.

("Asplundh") and by National Union Fire Insurance Company of

Pittsburgh ("National Union"), Asplundh's liability insurance

carrier.   Asplundh and National Union sought to recover some or

all of their costs in settling a wrongful death suit brought

against Asplundh by the estate of Jeffrey Sackerson, who was

killed when an Asplundh aerial lift in which he was working

fractured (Benton Harbor having manufactured the component part

of the aerial lift which allegedly failed).   Benton Harbor's

principal argument on appeal is that the district court erred in
permitting Asplundh to adduce lay opinion testimony pursuant to

Federal Rule of Evidence 701 regarding what appear to be complex

technical issues concerning the cause of the metal failure.

           Rule 701, which contemplates admission of lay opinions

rationally based on personal knowledge so as to be helpful to the

trier of fact, was primarily designed to allow lay individuals to

express opinions that are in reality only a shorthand statement

of fact.   However, this court, like other courts, has commonly

interpreted the rule to permit individuals not qualified as

experts, but possessing experience or specialized knowledge about

particular things, to testify about technical matters that might

have been thought to lie within the exclusive province of

experts.   This flexible, arguably expansive, interpretation of

Rule 701 appears to be consistent with its text.    Where, however,

a party proffers a witness expressing an opinion on matters such

as the design of hydraulic cylinders or the cause of metal

failure, the trial court must be rigorous in assuring that the

lay witness satisfies the strictures of Rule 701.   In particular,

the proponent of technical lay opinion testimony must show that

the testimony is based on sufficient experience or specialized

knowledge and also show a sufficient connection between such

knowledge or experience and the lay opinion such that it may be

fairly considered to be "rationally based on the perception of

the witness" and truly "helpful" to the jury.

           Given the standard we articulate today for the

admission of lay opinion evidence of a technical nature, we

conclude that the district court’s ruling was based on an
impermissible interpretation of Rule 701; that is, because the

court failed to examine with sufficient rigor whether the

testimony in question was informed by sufficient experience or

specialized knowledge.   More particularly, in order to satisfy

the rationally derived and helpfulness standards of Rule 701,

Asplundh needed to demonstrate that the witness possessed

sufficient experience or specialized knowledge which qualified

him to offer a technical opinion regarding the cause of metal

failure and the design of hydraulic cylinders.    While a lay

witness could acquire this additional insight either by formal

education or practical experience, it appears the witness at

issue simply possessed neither.   Because the admission of the

testimony was not harmless, we will reverse the judgment of the

district court and remand for further proceedings.

          Although Asplundh and National Union cross appeal,

arguing that the district court erred in failing to award

prejudgment interest, we do not, in view of our result, reach

this question.



                 I.   Facts and Procedural History

          Jeffrey Sackerson was killed while operating an aerial

lift, manufactured by Asplundh, which was mounted onto a truck

chassis and used in tree trimming operations.    At the time,

Sackerson was employed by the city of Portland, Oregon, which

owned, operated and maintained the aerial lift.      When Sackerson's

estate filed a wrongful death suit against Asplundh, Asplundh and

its insurer, National Union, brought a third-party action seeking
contribution and indemnity from Benton Harbor, the manufacturer

of the lower boom cylinder containing the piston rod which

allegedly fractured and caused the accident.      The jury returned a

verdict for Asplundh and National Union, finding Asplundh eighty

percent responsible and Benton Harbor twenty percent responsible.

The district court entered judgment for Asplundh and National

Union in the amount of $185,881.60, twenty percent of the

Sackerson settlement.    Post-trial motions were filed by both

parties.    Asplundh and National Union sought prejudgment

interest, and Benton Harbor sought a new trial based on alleged

error in admitting the lay opinion testimony of Michael Jones.

Both motions were denied by the district court.      These appeals

followed.

            Jones, the witness whose testimony is at issue, had

been fleet maintenance supervisor for the City of Portland for

more than ten years at the time of the accident.      Jones's

responsibilities covered all city equipment, including the

Asplundh aerial lift.    He supervised between sixty and one

hundred employees, six or seven city repair shops, and the

maintenance of 1385 pieces of equipment.

            After the accident, Jones and his employees took apart

and inspected the aerial lift's boom assembly in the City of

Portland's shop.    During this inspection, Jones observed the rod

from a distance of about fifteen inches.      In his deposition,

Jones stated his opinion that a component of the lower boom

assembly --   the rod end -- had fractured.    The rod end was a

threaded metal rod that was screwed into a threaded metal casing
called the rod cylinder.     A hole was drilled through both the

casing and the rod end, and a metal pin was inserted through the

hole.   See App. at 315.

             Jones expressed the opinion that the fracture was

caused by metal fatigue and was attributable to the design of the

rod end.     Id. at 161, 167.   Specifically, he stated that there

was a "problem" because Benton Harbor's design called for a hole

to be drilled through the rod end at a point where it was

threaded.    Id.   Moreover, Jones noted that the cylinder rod had

oxidized around a portion of the break which was a different,

duller color than the rod's fresh break.     From this, Jones

concluded that the break occurred in stages.     Jones also related

that the break was in a threaded area where a hole had been

drilled through the rod.     Jones concluded that the rod fatigued

inside the rod eye, causing the accident, stating that the stop

block on the lower boom cylinder rods did not contribute to the

accident.1

             In particular, Jones attributed the accident "to the

way the rod was drilled through, and the fact that the rod eye

1
.   Jones stated:

             Well, it seems like -- seemed to me that all
             the bulletins that came out after the fact,
             after Sackerson’s death, were dealing with
             the stop blocks as if the stop blocks somehow
             would have saved his life. And there’s no
             way I happen to believe that. Stop blocks
             didn’t have a damn thing in the world to do
             with Sackerson’s death.

App. at 166.
was screwed on on a threaded -- two threaded surfaces."        App. at

167; App. at 160-61 ("The reasons [for the accident] are two:

one, the hole through the pin caused . . . the rod to be weakened

and, two, the threads . . . on the rod itself caused the breaking

point.   They were sharp, and it broke right at the point where

all of those things intersected.      That was the problem.    There’s

no doubt in my mind about it. . . .").      He questioned the

appropriateness of this rod end design, stating that before his

examination he "had no idea that this thing was threaded on and

then drilled and pinned, up to that point," since he "had never

seen a cylinder that size configured that way."       Id.   Jones

reiterated that he "never saw other cylinders configured that

way," and that he "kn[e]w how other cylinders were configured

differently," since he was a production control manager for a

company that produced hydraulic cylinders.      Id.   Moreover, Jones

asserted expertise in this area, declaring, "I think I know how

to make hydraulic cylinders."   Id.

           Key portions of Jones's deposition were read to the

jury over Benton Harbor's objection.      The district court

overruled the objections to the reading of the deposition

testimony, allowing Jones to testify as a lay witness expressing

an opinion under Rule 701.   FED. R. EVID. 701.   Benton Harbor

argues that Jones's technical deposition testimony is not the

type of lay opinion evidence properly admissible under Rule 701.

           Our review is plenary, since the district court’s

ruling turns on an interpretation of Rule 701, which would permit

the admission of technical lay opinion evidence in this case.        A
determination regarding the scope of evidence properly admitted

under a Federal Rule of Evidence is a question of law subject to

plenary review.      See DeLuca v. Merrell Dow Pharm. 911 F.2d 941,

945 (3d Cir. 1990); U.S. v. Furst, 886 F.2d 558, 571 (3d Cir.

1989) ("To the extent that the district court’s admission of

[evidence] was based on an interpretation of the Federal Rules of

Evidence, we exercise plenary review.").



                     II.   The Rule 701 Jurisprudence

                                    A.

            In determining whether Jones's opinion testimony was

properly admitted by the district court, we must determine the

scope of Federal Rule of Evidence 701, which provides:
          If the witness is not testifying as an
          expert, the witness' testimony in the form of
          opinions or inferences is limited to those
          opinions   or   inferences   which  are   (a)
          rationally based on the perception of the
          witness   and   (b)   helpful   to  a   clear
          understanding of the witness' testimony or
          the determination of a fact in issue.


FED. R. EVID. 701.

            Rule 701 represents a movement away from the courts'

historically skeptical view of lay opinion evidence.     At common

law, witnesses not qualifying as experts were not permitted to

draw conclusions which could be characterized as opinion

testimony, but rather were required to limit their testimony to

facts, those things "they had seen, heard, felt, smelled, tasted,

or done."    Hon. Charles R. Richey, Proposals To Eliminate the

Prejudicial Effect of the Use of the Word "Expert" Under the
Federal Rules [of] Evidence in Civil and Criminal Jury Trials,

154 F.R.D. 537, 542 (1994) ("Mere opinions were considered

unreliable bases for testimony.").

              This rigid distinction between fact and opinion led to

numerous appeals and pervasive criticism by commentators.              See

generally 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE ¶

701[01] (1994).         Wigmore declared, in the first edition of his

treatise, that this distinction "has done more than any one rule

of procedure to reduce our litigation towards a sense of

legalized gambling."         3 JOHN H. WIGMORE, EVIDENCE § 1929 at 2563 (1st

ed. 1904); see also WILLARD L. KING & DOUGLAS PILLINGER, OPINION EVIDENCE

IN   ILLINOIS 8 (1942) ("The American courts have had a great

struggle with a rule which appeared to require them to admit

statements of fact and exclude all inferences of the witness.

Such a rule is quite impossible of application: all statements

contain inferences."); JAMES B. THAYER, A PRELIMINARY TREATISE    ON

EVIDENCE   AT THE   COMMON LAW 524 (1898) ("In a sense all testimony to

matter of fact is opinion evidence, i.e. it is a conclusion

formed from phenomena and mental impressions.").

              Characteristically, however, the most eloquent

criticism of this common-law restriction on lay testimony was

made by Judge Learned Hand:
          Every judge of experience in the trial of
          causes has again and again seen the whole
          story garbled, because of insistence upon a
          form with which the witness cannot comply,
          since, like most men, he is unaware of the
          extent to which inference enters into his
          perceptions. He is telling the "facts" in
          the only way that he knows how, and the
          result of nagging and checking him is often
          to choke him altogether, which is, indeed,
          usually its purpose.


Central R.R. Co. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926).
Judge Hand also stated:
          The truth is, as Mr. Wigmore has observed at
          length that the exclusion of opinion evidence
          has been carried beyond reason in this
          country, and that it would be a large advance
          if courts were to admit it with freedom. The
          line between opinion and fact is at best only
          one of degree, and ought to depend solely
          upon   practical   considerations,  as,   for
          example, the saving of time and the mentality
          of the witness.


Id. (citations omitted).

               These concerns about the restrictions on lay

opinion testimony, combined with a more general liberalization in

those rules of evidence that operated to deprive the fact-finder

of relevant evidence,2 led to the adoption of Rule 701.   The

Advisory Committee Note to the rule reflects the fact that Rule

701's liberalization of the admissibility of opinion evidence is

rooted in the modern trend away from fine distinctions between

fact and opinion and toward greater admissibility, tempered with

an understanding that the adversary process, and more

specifically, cross-examination will correct any problems:



2
 . The admissibility of expert opinion testimony was also more
limited at common law and liberalized under the Federal Rules.
Among other requirements, expert testimony was limited to those
areas that were "not within the common knowledge of the average
layman." Bridger v. Union Railway Co., 355 F.2d 382, 387 (6th
Cir. 1966). With the enactment of the Federal Rules of Evidence
the common law restrictions on expert testimony have been
liberalized and the permissible content has been broadened.
          The rule retains the traditional objective of
          putting the trier of fact in possession of an
          accurate reproduction of the event.

          Limitation (a) is the familiar requirement of
          first-hand knowledge or observation.

          Limitation (b) is phrased in terms of
          requiring   testimony    to   be    helpful  in
          resolving issues.       Witnesses often find
          difficulty   in   expressing    themselves   in
          language which is not that of an opinion or
          conclusion.     While the courts have made
          concessions in certain recurring situations,
          necessity as a standard for permitting
          opinions and conclusions has proved too
          elusive and too unadaptable to particular
          situations   for   purposes   of   satisfactory
          judicial   administration.       Moreover,  the
          practical impossibility of determining by
          rule what is a "fact," demonstrated by a
          century of litigation of the question of what
          is a fact for purposes of pleading under the
          Field Code, extends into evidence also. The
          rule assumes that the natural characteristics
          of the adversary system will generally lead
          to an acceptable result, since the detailed
          account carries more conviction that the
          broad assertion, and a lawyer can be expected
          to display his witness to the best advantage.
          If he fails to do so, cross-examination and
          argument will point up the weakness.        If,
          despite these considerations, attempts are
          made to introduce meaningless assertions
          which amount to little more than choosing up
          sides, exclusion for lack of helpfulness is
          called for by the rule.

FED. R. EVID. 701 advisory committee's note (citations omitted).


          The prototypical example of the type of evidence

contemplated by the adoption of Rule 701 relates to the

appearance of persons or things, identity, the manner of conduct,

competency of a person, degrees of light or darkness, sound,

size, weight, distance and an endless number of items that cannot
be described factually in words apart from inferences.                See Mason

Ladd, Expert Testimony, 5 VAND. L. REV. 414, 417 (1952).              The more

liberal approach to lay opinion testimony of this type gained

acceptance as a rule of "convenience," which allowed for

"`shorthand renditions' of a total situation, or [for] statements

of collective facts."     1 MCCORMICK   ON   EVIDENCE 44 & n.16 (4th ed.

1992); see also Mark McCormick, Opinion Evidence in Iowa, 19

DRAKE L. REV. 245, 248 (1970) (viewing this rule as allowing for a

"shorthand rendering of the facts").

          As recognized by Professor Saltzburg, testimony that a

person was "excited" or "angry" is more evocative and

understandable than a long physical description of the person's

outward manifestations.     STEPHEN A. SALTZBURG    ET. AL.,   FEDERAL RULES   OF

EVIDENCE MANUAL 1032 (6th ed. 1994).         For example, a witness who

testifies that an individual whom he saw staggering or lurching

along the way was drunk is spared the difficulty of describing,

with the precision of an orthopedist or choreographer, the

person's gait, angle of walk, etc.           See, e.g., United States v.

Mastberg, 503 F.2d 465 (9th Cir. 1974) (permitting under Rule 701

the testimony of a customs inspector that the defendant appeared

nervous); State v. Hall, 353 N.W.2d 37, 43 (S.D. 1984)
(permitting police officers to give lay opinion concerning

defendant's intoxicated state)3; Kerry Coal Co. v. United Mine


3
 . All state cases cited herein are decided under state rules of
evidence identical or analogous to Rule 701 of the Federal Rules.
As of this entry, some 28 states have adopted Federal Rule 701
without change. See WEINSTEIN, supra, ¶ 701[03].
Workers, 637 F.2d 957, 967 (3d Cir.) (allowing the admission of

testimony that plaintiff's employees were "nervous and afraid" as

a shorthand report of witnesses' observations of employee

reactions), cert. denied, 454 U.S. 823 (1981).

          Perhaps the best judicial description of this type of

testimony under Rule 701 is found in United States v. Yazzie, 976

F.2d 1252 (9th Cir. 1992).   Yazzie was charged with statutory

rape under a federal statute that permitted a defense of

reasonable mistake as to the age of the minor.   At trial, Yazzie

asserted that he reasonably believed that the minor, age fifteen-

and-a-half, was over the statutory age of sixteen.   In support of

this contention, Yazzie called several witnesses who offered to

testify that, as of the date of the incident, their observations

caused them to believe the minor to be between the age of sixteen

and twenty.   The trial court excluded this testimony as

impermissible lay "opinion" and limited the witnesses' testimony

to "facts," such as that the minor smoked cigarettes, wore make-

up, and drove a car. The Court of Appeals reversed, stating:
          We understand Rule 701 to mean that opinions
          of non-experts may be admitted where the
          facts could not otherwise be adequately
          presented or described to the jury in such a
          way as to enable the jury to form an opinion
          or reach an intelligent conclusion. If it is
          impossible or difficult to reproduce the data
          observed by the witnesses, or the facts are
          difficult of explanation, or complex, or are
          of   a  combination   of   circumstances   and
          appearances   which   cannot   be   adequately
          described and presented with the force and
          clearness as they appeared to the witness,
          the witness may state his impressions and
          opinions based upon what he observed. It is
          a means of conveying to the jury what the
          witness has seen or heard.



Id. at 1255 (quoting United States v. Skeet, 665 F.2d 983, 985
(9th Cir. 1982) (internal quotation marks omitted)).   The court

concluded that the testimony of the witnesses satisfied Rule

701's requirements:
          Here, the opinion testimony not only meets
          the requirements of sub-part (a) of Rule 701,
          but of both the alternative sub-parts of (b).
          The testimony helps in the understanding of
          the witnesses' descriptive testimony and in
          determining a critical fact at issue --
          whether it was reasonable for Yazzie to
          believe that the minor was sixteen or older.

               In the case before us, the jurors could
          not themselves assess how old the minor
          looked at the time of the incident: by the
          time of the trial, the minor was almost
          seventeen years old, and her appearance was
          undoubtedly substantially different than it
          had been on the night in question, a year and
          a half earlier. Thus, the jurors were wholly
          dependent on the testimony of witnesses. Yet
          the witnesses were permitted to testify only
          to the minor's describable features and
          behavior. Their testimony was no substitute
          for a clear and unequivocal statement of
          their opinions.    It did not tell the jury
          that these witnesses believed the minor to be
          at least sixteen years old at the time of the
          incident.

Id. (footnote omitted).

          Other examples of this type of quintessential Rule 701

opinion testimony include identification of an individual,4 the

4
 . United States v. Langford, 802 F.2d 1176, 1178-79 (9th Cir.
1986) (admitting identification testimony with respect to persons
depicted in a bank surveillance photograph), cert. denied, 483
U.S. 1008 (1987); United States v. Allen, 787 F.2d 933, 935-37
(4th Cir. 1986) (same), cert. denied, 488 U.S. 944 (1988); United
States v. Farnsworth, 729 F.2d 1158, 1160-61 (8th Cir. 1984)
speed of a vehicle,5 the mental state or responsibility of

another,6 whether another was healthy,7 the value of one's

property,8 and other situations in which the differences between
(..continued)
(same); United States v. Jackson, 688 F.2d 1121, 1125 (7th Cir.
1982) (same), cert. denied, 460 U.S. 1043 (1983).
5
 . United States v. Carlock, 806 F.2d 535, 552 (5th Cir. 1986)
(recognizing that a "common illustration" of an admissible
opinion under Rule 701 is "an expression of opinion by a lay
observer of a car's speed"), cert. denied, 480 U.S. 949 (1987);
see also Ernst v. Ace Motor Sales, Inc., 550 F. Supp. 1220, 1222-
23 (E.D. Pa. 1982) (admitting opinion testimony as to the point
of impact of two vehicles from a police officer who did not
observe a car accident, but arrived shortly thereafter), aff'd,
720 F.2d 661 (3d Cir. 1983).
6
 . United States v. Lawson, 653 F.2d 299, 303 (7th Cir. 1981),
cert. denied, 454 U.S. 1150 (1982) (concluding that lay opinion
testimony by FBI agents as to defendant's sanity was properly
admitted despite fact that the agents had little opportunity to
view the defendant); Lewisohn v. State, 433 A.2d 351, 355 (Me.
1981) (concluding, in habeas corpus proceedings, that testimony
by witness that a certain juror, prior to having been selected
for jury, had preconceived notions that petitioner was guilty was
an inference rationally based on the witness' perception and
helpful in determining a fact in issue, and therefore properly
admitted).
7
 . Singletary v. Secretary of HEW, 623 F.2d 217, 219 (2d Cir.
1980) (permitting, in a reversal of a denial of disability
benefits, the lay opinion of a claimant's son that his father was
an alcoholic and unable to work); State v. Jennings, 430 S.E.2d
188, 201 (N.C. 1993) (recognizing "the state of a person's
health" as "a proper subject[] for lay opinion").
8
 . See United States v. Ranney, 719 F.2d 1183, 1189 & n.11 (1st
Cir. 1983) (permitting defrauded investors to testify as to the
value of their investment); Neff v. Kehoe, 708 F.2d 639, 643-44
(11th Cir. 1983) (reversing, in an action alleging
misrepresentations in sale of a coin collection, the exclusion of
testimony of the plaintiff/buyer, who was determined competent to
give lay opinion testimony as to the value of the coins, even
though such testimony was self-serving and unsupported by other
evidence); Garris v. Massey, 606 S.W.2d 109, 112 (Ark. Ct. App.
1980) (allowing owner of similar property to testify as to value
of property in issue).
fact and opinion blur and it is difficult or cumbersome for the

examiner to elicit an answer from the witness that will not be

expressed in the form of an opinion.9   See generally SALTZBURG,

supra, 1031-36; WEINSTEIN, supra, ¶ 701[02].   These cases, it is

important to add, all meet the core definitional terms of Rule

701 -- the opinion is based upon personal knowledge, as

rationally based thereon, and is helpful to the trier of fact.

                                B.

          While many, if not most, of the cases decided under

Rule 701 are of the genre just described, the jurisprudence has

expanded beyond this core area to permit lay persons to express

opinions that are not shorthand statements of fact, so long as

the personal knowledge, rational basis and helpfulness standards

of Rule 701 are met.   In particular, courts have permitted

witnesses with firsthand knowledge to offer lay opinion testimony

where they have a reasonable basis -- grounded either in


9
 . United States v. McCullah, 745 F.2d 350, 352 (6th Cir. 1984)
(permitting, in a prosecution for conspiracy to steal, transport,
conceal and resell a tractor, the testimony of a government agent
describing the location of the tractor as "hidden" under some
trees, since it was rationally based on the perception of the
witness and helpful to a clear understanding of his testimony);
United States v. Sweeney, 688 F.2d 1131, 1145-46 (7th Cir. 1982)
(concluding a PCP and methamphetamine drug user could testify as
to identity of said drugs based on his prior use and knowledge,
his sampling of the substance, and the conclusion that the drug
affected him in the same manner as it had before); State v. No
Heart, 353 N.W.2d 43, 48 (S.D. 1984) (holding that a police
officer's opinion that victim's injuries were caused not by a
fist but by something sharper was properly admitted, given that
distinction between a wound caused by a fist and a wound caused
by a sharper object was within realm of an average person's
experience).
experience or specialized knowledge -- for arriving at the

opinion expressed.   A conclusion by the trial court that the

witness possessed sufficient experience or specialized knowledge

has thus often been used to determine that the witness's opinion

testimony satisfies the requirements that the opinion be both

"helpful to a clear understanding . . . of a fact in issue" and

"rationally based" upon the witness's perception, as expressed in

the text of Rule 701.

          Rule 701 cases satisfying these requirements are

arrayed along a spectrum, ranging from what might be described as

modest departures from the core area of lay opinion testimony,

described above, to those which approach the ambit of Rule 702

expert opinion.   A good example of the former is our opinion in

Teen-Ed, Inc. v. Kimbell International, Inc., 620 F.2d 399 (3d

Cir. 1980) in which we held that a lay opinion from the

plaintiff's accountant and bookkeeper was proper:
             The personal knowledge of appellant's
          balance sheets acquired by Zeitz as Teen-Ed's
          accountant was clearly sufficient under Rule
          602 to qualify him as a witness eligible
          under Rule 701 to testify to his opinion of
          how lost profits could be calculated and to
          inferences that he could draw from his
          perception of Teen-Ed's books.

             The fact that Zeitz might have been able
          to qualify as an expert witness on the use of
          accepted   accounting   principles   in   the
          calculation of business losses should not
          have prevented his testifying on the basis of
          his knowledge of appellant's records about
          how lost profits could be calculated from the
          data contained therein.


Id. at 403.
            Similar to Teen-Ed are our opinions in Joy

Manufacturing Co. v. Sola Basic Industries, Inc., 697 F.2d 104,

110-12 (3d Cir. 1982), and Eckert v. Aliquippa & Southern

Railroad Co., 828 F.2d 183, 185 n.5 (3d Cir. 1987).      In Joy, an

action against a manufacturer for damages resulting from the

failure of two heat treating furnaces, we held that it was an

abuse of discretion for the district court to exclude the

testimony of plaintiff's supervisor of production control

concerning the percentage of plaintiff's losses resulting from

hearth problems.    Given that the witness in question had

extensive personal knowledge of plaintiff's plants and the

furnaces in question, we concluded that the witness's opinion was

rationally based on his personal knowledge and that the witness's

inability to state precisely why a furnace was inoperable at a

particular time was proper material for cross-examination rather

than a basis for inadmissibility.

            In Eckert, a brakeman sued a railroad under the Federal

Employers Liability Act (FELA) and Safety Appliance Act (SAA) for

injuries suffered when the locomotive he was riding on collided

with another locomotive and both cars derailed upon failing to

couple.    In concluding that the district court had improperly

held the SAA inapplicable to the case, we noted that the

plaintiff, who had offered testimony relevant to establishing SAA

violations, was qualified to testify by virtue of his thirty

years experience and familiarity with railroad procedures as to

whether injuries would have occurred had the cars been properly

coupled.    A number of other cases also fit into this category
(that is, they represent a modest expansion from the core lay

opinion testimony contemplated by the adoption of Rule 701).10

                               C.

          We recognize, however, that some lay opinion cases have

begun to move even further beyond the core area of Rule 701

opinion testimony and have begun, in a subtle gradation, to

10
 . See, e.g., State Office Sys., Inc. v. Olivetti Corp. of
America, 762 F.2d 843, 845-46 (10th Cir. 1985) (permitting
admission of testimony as to lost future profits from company's
president/treasurer with personal knowledge of company's
operations, sales, and profits); State v. Johnson, 719 P.2d 1248,
1256-57 (Mont. 1986) (holding that, in a prosecution for driving
under the influence of alcohol, a police officer was properly
allowed to testify as a lay witness on the basis of his own
experience as to what generally happens to a car when its power
steering fails, where he had worked on vehicles of all kinds for
over ten years and had experienced power steering failure several
times); Schmidt v. J.C. Robinson Seed Co., 370 N.W.2d 103, 106
(Neb. 1985) (holding that the trial court properly admitted, in a
breach of contract action against a buyer of seed corn, opinion
testimony by the plaintiff/seed grower's witnesses concerning the
effect of shattercane on the seed crop, where the opinions, which
were helpful in determining the fact in issue, were rationally
based on perceptions stemming from extensive field observation
and personal farming experience); Hansen v. Skate Ranch, Inc.,
641 P.2d 517, 522-23 (N.M. Ct. App. 1982) (concluding, in a
personal injury action arising from a fall at a roller skating
rink, that the trial court properly admitted testimony of two lay
witnesses, who were experienced skaters present on the night of
the accident, regarding safety procedures used by the defendant
on the night of the accident); Lee v. State, 661 P.2d 1345, 1354-
55 (Okla. Crim. App. 1983) (concluding that an investigating
police officer could testify that spots on a carpet were blood,
and that a chemist, testifying on other matters, could offer a
lay opinion that the type of glass found at a murder location was
safety glass); Williamson v. O'Neill, 696 S.W.2d 431 (Tex. Ct.
App. 1985) (holding that the driver of a tractor-trailer rig, a
co-defendant in a personal injury lawsuit arising from an auto-
truck accident, was uniquely qualified, as the experienced driver
of the rig involved in the accident, to offer a lay opinion as to
the reason the trailer separated from the tractor, since his
opinion would be rationally based on his firsthand perceptions of
the accident and would help determine causation).
permit lay witnesses to express their opinions in areas in which

it would ordinarily be expected that only an expert qualified

under Rule 702 could give such testimony, such as whether a

product design was defective or whether certain factors (e.g., a

product defect) caused an accident.

            For example, in Soden v. Freightliner Corp., 714 F.2d

498, 510-12 (5th Cir. 1983), the Fifth Circuit permitted a lay

witness to opine that the design of a truck was dangerous and

defective in a product liability action involving a post-

collision truck fire.     The plaintiffs in this action claimed that

the design of a Freightliner truck's fuel system was unreasonably

dangerous and caused a post-collision fuel fire which killed

plaintiffs' decedent.     Soden, 714 F.2d at 500.   The "thrust" of

the plaintiffs' argument was that the Freightliner's fuel tanks,

which were mounted on the sides of the truck under the cab doors,

were dangerous. Id. As the Soden court explained:
          In particular, they [the plaintiffs] also
          argued that the brackets securing the steps
          to these fuel tanks had pointed ends which,
          in the event of a rollover, could puncture
          the fuel tanks. The resulting hole or holes
          could release diesel fuel near engine
          components hot enough to ignite the fuel,
          causing a fire in the engine-cab area.


Id.
            The contested lay witness, Lasere, was a service

manager who supervised the preventive maintenance of about 500

trucks and was in charge of the daily maintenance of about sixty

trucks, mostly Freightliners, including the truck involved in the

accident.   Id. at 510.    Lasere also was in charge of removing the
truck from the scene of the accident and observed firsthand the

damage to the fuel tank.   Id.   At trial, he testified for the

plaintiffs regarding the cause of the accident and the

dangerousness of the design; specifically, Lasere testified that

step brackets had punctured the fuel tank.    Id. at 510-11.   In

particular, he stated that in the case at hand, and in two or

three other Freightliner accidents, he had observed "puncture

holes in the fuel tanks at the location of the step brackets."

Id. at 510.   He then gave his opinion that the step brackets were

the cause of the puncture holes.   After Soden's accident, Lasere

testified that he had modified the step brackets in the remaining

Freightliners in his fleet by "sawing off [the] pointed ends;"

and he expressed the opinion that the bracket's original design

was "dangerous."   Id. at 511.

          Sustaining the admission of Lasere's opinion testimony,

the Fifth Circuit stated:
          No great leap of logic or expertise was
          necessary for one in Lasere's position to
          move from his observation of holes in
          Freightliner fuel tanks at the location of
          the step brackets, and presumably caused by
          them, to his opinion that the situation was
          dangerous. . . . Lasere's testimony with
          respect to the dangerousness of the step
          brackets was also obvious, given the
          modification which he testified he made to
          them after all he had seen.


Id. at 512.   The court added, however, that Lasere's testimony on

this point "did constitute an opinion which might have been

better given by one more formally an expert."   Id.   And the court

subsequently reiterated that "although Lasere's opinion with
respect to `dangerousness' may have been more properly made by

one more formally an expert, given the particular facts of this

case, we conclude that no reversible error occurred in its

admission."   Id. (emphasis supplied).

          In our view, cases like Soden stretch the doctrinal

boundaries of Rule 701 opinion testimony.11   However, we agree

with the Fifth Circuit that such testimony does fall within the

ambit of Rule 701's requirement that a lay witness's opinion be

rationally based on firsthand observations and helpful in

determining a fact in issue.   Though we agree with Benton Harbor

that the admission of lay opinion evidence in these technical

areas (e.g., concerning the existence vel non of a product defect

or whether an accident was caused by a certain condition) can

result in an attenuated form of expert opinion evidence far

removed from the considerations, described supra in Part II.A,

animating the lay opinion rule,12 it is not for us to rewrite the

11
 . For example, in United States v. Myers, 972 F.2d 1566, 1577
(11th Cir. 1992), cert. denied, 113 S. Ct. 1813 (1993), lay
opinion testimony that burn marks were caused by a stun gun was
held admissible based on the witness' personal perception of the
burned skin and nineteen years of experience on the police force.
The court noted that the opinion's lack of technical/medical
basis could be exposed on cross-examination and affected the
weight, not the admissibility, of the evidence.
12
 . In particular, we find problematic the views of some courts
which would appear to permit the firsthand knowledge of a lay
witness in these and other technical areas to entirely diminish
the need for the "knowledge, skill, experience, training or
education" of a witness qualifying under Rule 702. For example,
in United States v. Paiva, 892 F.2d 148, 155-57 (1st Cir. 1989),
where a lay witness who had used and tasted cocaine on many
occasions testified that a substance tasted like cocaine, the
First Circuit affirmed the admission of the evidence by the trial
court, rejecting the argument that a lay witness cannot testify
rule or reinterpret Rule 701 across the board.13   Accordingly, we

refuse to hold, as Benton Harbor requests, that all lay witnesses

offering opinions that require special knowledge or experience

must qualify under Rule 702.14
(..continued)
to such matters because only qualified experts can give such
testimony. While the holding appears unexceptionable, the court
unnecessarily declared that Rule 701 "blurred any rigid
distinction that may have existed between" lay and expert
testimony. Id. at 157. More refinement might have been in
order.
13
 . This unwillingness to find a strict prohibition on lay
opinion testimony in technical matters is motivated, in no small
part, by our inability to designate the testimony involved in
prior caselaw as properly within the exclusive province of
experts. Indeed, in some cases, courts have noted that the
witness giving the lay opinion testimony might have qualified as
an expert. See, e.g., Teen-Ed, 620 F.2d at 403 (accountant who
gave lay opinion testimony might have qualified as expert); see
also Williams Enters., Inc. v. Sherman R. Smoot Co., 938 F.2d
230, 233-34 (D.C. Cir. 1991) (insurance broker, who might have
been qualified as an expert, was properly permitted to testify
that the construction collapse at issue may have contributed to a
substantial increase in the plaintiff's insurance premiums);
United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.)
(whether the testimony was lay or expert opinion, it was
permissible for an undercover agent to testify that a defendant
was acting as a lookout), cert. denied, 459 U.S. 1044 (1982).
14
 . We believe, however, that such distinctions can and might
well be made by the drafters of the Federal Rules, in that, as
our discussion suggests, a better formulation of the lay opinion
rule would perhaps eliminate these matters from the ambit of Rule
701. Such an approach has been adopted by some states, including
Delaware, which provides:

             If a witness is not testifying as an
          expert, his testimony about what he perceived
          may be in the form of inference and opinion,
          when:
                   (1) The witness cannot readily,
                and with equal accuracy and
                adequacy, communicate what he has
                perceived to the trier of fact
                without testifying in terms of
                inferences or opinions, and his use
            However, the admissibility of opinion evidence under

the strictures of Rule 701 is not without limit.      Rule 701’s

requirement that the opinion be "rationally based on the

perception of the witness" demands more than that the witness

have perceived something firsthand; rather, it requires that the

witness's perception provide a truly rational basis for his or

her opinion.    Similarly, the second requirement -- that the

opinion be "helpful to a clear understanding of the witness's

testimony or the determination of a fact in issue" -- demands

more than that the opinion have a bearing on the issues in the

case; in order to be "helpful," an opinion must be reasonably

reliable.    In other words, Rule 701 requires that a lay opinion

(..continued)
                 of inferences or opinions will not
                 mislead the trier of fact to the
                 prejudice of the objecting party;
                 and

                    (2) The opinions and inferences
                 do not require a special knowledge,
                 skill, experience or training.

DEL. UNIFORM RULES OF EVIDENCE RULE 701 (emphasis added). Similar
restrictions on lay opinion testimony have been adopted in both
Florida and Tennessee. See FLA. STAT. ANN. EVIDENCE CODE § 90.701;
TENN R. EVID. 701.
            We take the liberty of commending this issue to the
attention of the Judicial Conference Advisory Committee on Rules
of Evidence, which monitors developments in evidence
jurisprudence. See generally Edward R. Becker & Aviva Orenstein,
The Federal Rules of Evidence After Sixteen Years -- The Effect
of "Plain Meaning" Jurisprudence, the Need for an Advisory
Committee on the Rules of Evidence, and Suggestions for Selective
Revisions of the Rules, 60 Geo. Wash. L. Rev. 857, 910 (1992).
As the authors observed, state modifications in their adaptations
of the Federal Rules can be quite instructive in providing
"solutions to identified problems in the drafting or
implementation of the Federal Rules." Id. at 862 n.18.
witness have a reasonable basis grounded either in experience or

specialized knowledge for arriving at the opinion that he or she

expresses.   See Paiva, 892 F.2d at 157 ("Individual experience

and knowledge of a lay witness may establish his or her

competence, without qualification as an expert, to express an

opinion on a particular subject outside the realm of common

knowledge.").

          In sum, for lay opinion as to technical matters such as

product defect or causation to be admissible, it must derive from

a sufficiently qualified source as to be reliable and hence

helpful to the jury.   In order to satisfy these Rule 701

requirements, the trial judge should rigorously examine the

reliability of the lay opinion by ensuring that the witness

possesses sufficient special knowledge or experience which is

germane to the lay opinion offered.     Our decision does not, as

suggested by the dissent, "limit the application of Rule 701 to

human experiences, human conditions, and, perhaps, vehicle speed

and property value," nor does it eliminate lay opinion as an aid

to the jury in technical matters.   Rather, as we have stated, a

lay witness with first-hand knowledge can offer an opinion akin

to expert testimony in most cases, so long as the trial judge

determines that the witness possesses sufficient and relevant

specialized knowledge or experience to offer the opinion.

          The importance of these precepts is reinforced by the

recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,

___ U.S. ___, 113 S. Ct. 2786 (1993).     Daubert, of course, deals
with the evaluation of the scientific testimony of an expert
focusing upon the reliability of the scientific method on which

the conclusions of an expert are based.   But, one of the "Daubert

factors" is the expert's knowledge and qualifications, and the

centerpiece of the Daubert regime is the gatekeeping role of the

trial judge, whose duty it is to screen challenged expert

testimony and assure that it is sufficiently reliable to be of

assistance to the jury.   Daubert, 113 S. Ct. at 2794-95; In re

Paoli R.R. Yard PCB Litig., 35 F.3d 717, 748 (3d Cir. 1994)

("Daubert makes clear for the first time at the Supreme Court

level that courts have to play a gatekeeping role with regard to

experts.").   While we are careful not to suggest that Daubert

applies to Rule 701, we believe that its spirit also counsels

trial judges to carefully exercise a screening function with

respect to Rule 701 opinion testimony when the lay opinion

offered closely resembles expert testimony.15

          Though we acknowledge that important differences

between lay opinion evidence and expert testimony exist,

justifying a greater level of scrutiny of Rule 702 expert opinion

evidence,16 we do not believe such differences effectively
15
 . The dissent’s assertion that our decision "is directly
contrary to the teaching of Daubert which focused on the language
of Rule 702" is simply inaccurate. Our conclusion that the trial
judge should rigorously examine the reliability of the opinion,
by ensuring that the witness possessed sufficient special
knowledge or experience, derives ultimately, as we have stated,
from the explicit requirements of Rule 701, which dictate that
the lay opinion be "rationally based" on the witness's
observations and "helpful" to the jury.
16
 . Such differences include the following: (1) designation of
an opinion as "expert" by the court may cause the jury to give
the "witness more attention and credence" then an opinion
admitted from a "lay person" under Rule 701, Richey, supra, 154
vitiate the need for some judicial gatekeeping on the part of the

trial judge in the case of lay opinion testimony of a technical

nature.   Allowing a witness, with first-hand knowledge, to offer

a technical opinion which he lacks the necessary knowledge and

experience to make, runs afoul of the requirements of Rule 701.

It is clear, therefore, that in appropriate circumstances a trial

court should exclude proffered evidence, otherwise admissible as

relevant under Fed R. Evid. 401, on grounds that the witness's

knowledge and the consequent basis for his or her rational

perception are insufficient under the rule.

          The judicial Rule 701 screening that we speak of for

cases such as this one is not very different from the screening

that attends the ordinary expert qualification ruling.   See

Paoli, 35 F.3d at 740-46.   In determining whether a lay witness

has sufficient special knowledge or experience to ensure that the

lay opinion is rationally derived from the witness's observation

and helpful to the jury, the trial court should focus on the

substance of the witness's background and its germaneness to the

issue at hand.   Though particular educational training is of

course not necessary, the court should require the proponent of

the testimony to show some connection between the special

knowledge or experience of the witness, however acquired, and the

(..continued)
F.R.D. at 544; and (2) the opinion of a lay witness must be based
on his or her personal firsthand perception, while an expert may
opine in response to hypothetical questions, see Teen-Ed, 620
F.2d at 404 ("The essential difference [between Rule 701 and
702], however, is that a qualified expert may answer hypothetical
questions.").
witness's opinion regarding the disputed factual issues in the

case.

          The lay opinion testimony held to be admissible in our

prior Rule 701 decisions satisfied this standard.    In Teen-Ed,

Inc. v. Kimball International, Inc., 620 F.2d at 399, the

accountant who testified as a lay witness had very particular and

quite extensive prior experience with Teen-Ed’s books, which

allowed him to properly calculate for the court how lost profits

should be determined and to draw inferences from his examination

of the accounts.17   Id. at 403.   And in Joy Manufacturing Co. v.

Sola Basic Industries, Inc., 697 F.2d 104 (3d Cir. 1982), the lay

witness had "extensive personal knowledge of Joy's [the

plaintiff's] plants, its on-going heat treating processes, and

the two furnaces in question," and we stated that he had

"sufficient personal knowledge of Joy's [the plaintiff's] heat

treating facility to make an estimate of what amount of downtime

was due to the hearth problems."    Id. at 111-12.

          Moreover, in In re Merritt Logan, Inc., 901 F.2d 349

(3d Cir. 1990), an action by the purchaser of an allegedly

defective refrigeration system against the seller, installer, and

manufacturer of the system, the principal shareholder of the

plaintiff (Logan) was permitted to express an opinion as a lay


17
 . Moreover, Teen-Ed is a case in which the witness would have
qualified under Rule 702, but was precluded from testifying as an
expert because Teen-Ed failed to list him as required in a pre-
trial order. Id. ("We interpret the pre-trial ruling in this
case to have required identification of expert witnesses under
Rules 702 and 703, but not of lay witnesses under Rule 701.").
witness concerning his company's lost profits.   In addition,

another witness, Gilchrist, who had surveyed the site where the

refrigeration system was to be located prior to its installation

and had made an estimate of the weekly sales that could be

achieved at that site, was permitted to testify concerning his

survey.   We held that the admission of these lay opinions was

proper under Rule 701, stating:   "Mr. Logan's personal knowledge

of his business and Gilchrist's personal knowledge of how he

prepared his survey were sufficient to make these witnesses

eligible under Rule 701 to testify as to how lost profits could

be calculated."   Id. at 360.18

           Mindful of the need for the proponent of technical lay

opinion testimony to show that the witness possesses sufficient

knowledge or experience which is germane to the lay opinion

offered, we turn to the facts of this case.



18
 . See also Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir.)
(involving a securities action where the plaintiffs claimed that
the offering memoranda for certain limited partnerships were
false and misleading), cert. denied, 474 U.S. 946 (1985). In
Eisenberg, we held that an attorney had properly been permitted
to testify as a lay witness with respect to "what he believed
should have been included in one of the private offering
memoranda and as to whether the memorandum complied with the
applicable disclosure requirements." Id. at 780. We noted that
the witness, a partner of one of the individual defendants and a
principal in a law firm named as a defendant, had sufficient
knowledge and experience as "a lawyer specializing in business
litigation, who ha[d] also acted as general counsel for banks,
trucking companies and brokerage houses." Id. ("Although he had
represented clients in securities cases, and testified that he
was familiar with the disclosure requirements of federal and
state securities laws, he did not view himself as expert in the
preparation of offering memoranda.").
   III.   Application of Rule 701 to Jones's Opinion Testimony

          To recapitulate, the testimony in question here is

Jones’s opinion that the accident had resulted from metal fatigue

inside a piston rod which he attributed to the faulty design of

Benton Harbor’s rod end.   The district court did not limit

Jones’s testimony to describing the state of the metal inside the

rod-end and the fact that it had broken.   Rather, it allowed

Jones to offer a lay opinion as to the cause of the break.

Specifically, Jones stated that there was a "problem" because

Benton Harbor's design called for a hole to be drilled through

the rod end at a point where it was threaded.   App. at 161 & 167.

The district court admitted Jones’s testimony pursuant to Rule

701, since it concluded it was within "the ambit of common

sense."

          Asplundh contends that the district court properly

admitted Jones's opinion since the opinion satisfies Rule 701's

requirements in that it was rationally based on Jones’s firsthand

observations of the fractured rod and helpful to a determination

of a fact in issue.   We agree that Jones's testimony satisfied

Rule 701's requirement of firsthand knowledge since: (1) he saw

the disassembled lift shortly after the accident from a distance

of approximately fifteen inches; (2) he observed the colorations

of the metal fracture surface; and (3) he saw the break in the

threaded area where a hole had been drilled through the rod.     But

we do not agree that his opinion was rationally based on these

observations or helpful to the jury's determination of a fact in

issue because in proffering Jones’s testimony, Asplundh failed to
satisfy the standard we articulate today for lay opinion

evidence.

            In particular, we conclude that the district court

applied an incorrect legal standard under Rule 701 to the extent

that it failed to require Asplundh to show a sufficient knowledge

or experience and sufficient connection between Jones’s special

knowledge or experience and his opinion regarding the cause of

the accident and the design of the hydraulic cylinder.19    While

the district court did summarily conclude at one point in its

analysis that Jones’s "employment experience" gave him

"substantial knowledge in this area," we do not believe it

examined with sufficient rigor the question whether Jones

possessed the knowledge or experience necessary to offer an

opinion of such a technical nature.

            Jones was the fleet maintenance supervisor for the city

of Portland for more than ten years, supervising the maintenance

of 1385 variegated pieces of equipment and six or seven repair

shops.   Jones was present when the aerial lift was disassembled

and observed the damage to the rod.   Asplundh suggests that, as

in Soden, the conclusions and opinions expressed by Jones were

19
 . The dissent contends that the district court did apply a
correct legal standard under Rule 701 and would therefore review
the district court’s decision to admit Jones’s testimony for
abuse of discretion. We disagree, given that we conclude that
the district court violated the "rationally derived" and
"helpfulness" standards of Rule 701 in failing to examine with
sufficient rigor the question of whether Jones possessed
appropriate experience or knowledge to offer an opinion regarding
the cause of metal failure and the proper design of hydraulic
cylinders.
those that a normal individual in his position with his

experience would have drawn.   See Soden, 714 F.2d at 512.     But

Benton Harbor's response is telling.   It points out that Jones

lacked formal education; had not taken courses in metallurgy,

material failures or metal fatigue; and had not designed a

hydraulic cylinder.   He had one year of college studies plus

other job-related courses.   Moreover, Jones had never conducted

any studies of materials or material compositions.   Besides

having never designed a hydraulic cylinder, he had never

personally participated in manufacturing a hydraulic cylinder.

Although he worked some seven or eight months as a production

control manager for a company which used hydraulic cylinders in

their product, in that position he was responsible only for

initiating manufacture and had no design responsibilities

notwithstanding his bold assertion, "I think I know how to make

hydraulic cylinders."   App. at 168.

          The question we are presented with is whether it was

permissible for Jones to express the opinion that the rod end had

broken due to metal fatigue and that the design of the rod end

was a "problem."   App. at 160-61 ("The reasons [for the accident]

are two: one, the hole through the pin caused . . . the rod to be

weakened and, two, the threads . . . on the rod itself caused the

breaking point.    They were sharp, and it broke right at the point

where all of those things intersected.   That was the problem.

There’s no doubt in my mind about it . . . .").   In our view

these opinions are not ones that an average lay person would be

equipped to draw, absent sufficient evidence of specialized
knowledge or experience.   We disagree with the dissent’s

assertion that "[f]atigue failure of metal is not unfamiliar" to

persons "such" as Jones, and simply do not believe that the

average lay person, dissent infra at page 16, absent sufficient

knowledge or experience with metals, is qualified to offer a

meaningful opinion on questions of metal fatigue of this nature.

Metal fatigue is a technical concept.   There are many reported

cases in which experts have testified (and disagreed) as to

whether metal fatigue could be detected based on a post-accident

examination,20 but we have not found a single reported case in

which a lay witness has given such testimony.   The consistent use

of experts to testify regarding such questions underscores the

technical nature of Jones’s opinion.

          In describing this testimony as within the "ambit of

common sense," the district court would characterize Jones’s

testimony as equivalent to the observation that "if you take a

piece of metal and put in a vice and bend it back and forth

enough times, it fatigues and it breaks."   The dissent agrees.

But, Jones’s opinion was far more technical and, in particular,

attributed the accident to the manner in which Benton Harbor had

chosen to design the rod end.   See App. at 167-68 (Jones

attributed the accident to the fact that the "rod was drilled


20
 . See, e.g., Fusco v. General Motors Corp., 11 F.3d 259, 261
(1st Cir. 1993); Marrocco v. General Motors Corp., 966 F.2d 220,
225 (7th Cir. 1992); Salter v. Westra, 904 F.2d 1517, 1520 (11th
Cir. 1990); Grover Hill Grain Co. v. Baughman-Oster, Inc., 728
F.2d 784, 789 (6th Cir. 1984); Southwire Co. v. Beloit Eastern
Corp., 370 F. Supp. 842 (E.D. Pa. 1974).
through, and the fact that the rod eye was screwed on on a

threaded -- two threaded surfaces," and questioned this design

since he "kn[e]w how to make hydraulic cylinders" and he "had

never seen a cylinder that size configured that way").

             While the average lay person -- after examining the rod

end and seeing that it had broken in a spot where the rod end was

threaded and a hole had been drilled through it -- might well

properly conclude under Rule 701 that the rod end had broken at

what appeared to be its weakest point, such a person could not

reasonably go further and conclude that the rod end was

defectively weak at this point.     The dissent contends the

admissibility of this testimony was proper since "this is a

nation where many individuals grow up with extensive mechanical

experience and capabilities."     Dissent infra at page 14.    We

simply do not believe that the realm of common knowledge extends

to such issues as the presence and cause of metal failure and the

proper design of hydraulic cylinders.     Given the requirements of

Rule 701, Asplundh needed to demonstrate that Jones possessed

relevant experience or specialized knowledge germane to his

opinion in order to satisfy the rationally derived and

helpfulness standards of the rule.     While a lay witness may

acquire this additional insight either by formal education or

practical experience, it appears Jones simply possessed

neither.21

21
 . The dissent asserts, infra at page 13, that "Jones had
substantial technical knowledge so as to tell whether metal is
fatigued" but then fails to point to any evidence which would
demonstrate that Jones had any knowledge or experience in
          Jones's experience as Portland's fleet maintenance

supervisor, supervising the upkeep of 1385 pieces of equipment

and six or seven repair shops, is inapplicable.    While these are

weighty responsibilities, they do not seem to have anything to do

with designing or evaluating the design of machinery.    By way of

example, the maintenance supervisor for a fleet of rental cars

would hardly be qualified to express an opinion on whether the

braking system of a particular model was defectively designed,

absent some special qualifying proffer.    Moreover, as fleet

maintenance supervisor, Jones was involved in supervising the

maintenance of numerous types of equipment and had no special

experience with metal failure or hydraulic cylinders.     Likewise,

Jones's prior employment experience as a production control

manager does not seem pertinent, since he had no design

responsibilities.   Equally inapplicable is Jones’s previous job

as a riveter in the manufacture of blowoff fuel tanks for

military aircraft and the fact that he repaired his own

automobile.   App. at 181.   Neither appear to enhance Jones’s

knowledge or experience to offer an opinion on metal fatigue or

the design of hydraulic cylinders.

          In support of the admission of Jones's opinion

testimony, Asplundh relies principally on the Fifth Circuit's

opinion in Soden, discussed supra, which, as we have stated,

(..continued)
assessing metal fatigue. Absent some evidence of such experience
or knowledge, Jones’s opinion was inadmissible under Rule 701
since it could not be rationally derived from his observations or
helpful to the jury.
would likely satisfy the standard we articulate today.   While we

acknowledge that Jones's testimony bears a certain similarity to

Lasere's opinion regarding the design of the Freightliner fuel

tanks, we believe Jones simply lacked the unique experience which

allowed Lasere, the witness in Soden, to properly offer his lay

opinion.

           The Fifth Circuit concluded that the testimony of

Lasere was properly admitted under Rule 701 on the grounds that

he had eighteen years of experience in repair and maintenance of

the particular trucks involved in the accident and, importantly,

he had actually modified these trucks, which were under his care,

so as to prevent the alleged defect in the truck’s design from

rupturing the freightliner’s fuel tank in future accidents.

Lasere actually examined on previous occasions an unknown number

of Freightliners that had been involved in serious accidents

(presumably, in light of the nature of his job, not a great

number), and in two or three of those cases he had observed facts

that provided a reasonable basis for inferring that the design of

the step brackets had caused holes in one of the fuel tanks,

which were located near the engine.   Moreover, he had devised a

simple means (sawing off the pointed ends) by which the step

brackets might be made safer.

           More importantly, Lasere's opinion, regarding the

dangerousness of the design of the Freightliner, was rationally

derived from his particular experience with the Freightliners'
fuel tanks.22   This experience allowed the Fifth Circuit to

conclude that Lasere had "very considerable practical experience

and specialized knowledge."   Soden, 714 F.2d at 511.    Given his

unique experience, the court was able to conclude that his

conclusion that the design of the step brackets was dangerous

required "no great leap in logic or expertise."     Id. at 512.

          While we agree with the dissent that the opinion

admitted in Soden went, in a sense, beyond that offered by Jones

since Lasere characterized the design of the Freightliner’s fuel

tanks as "dangerous," we believe, given Lasere’s unique knowledge

and experience with the truck’s fuel tanks, he was qualified to

draw such an opinion.   In contrast, Jones simply lacked anything

resembling Lasere’s specialized knowledge or experience.       In

particular, Jones had never before taken these cylinders apart in

association with similar accidents.   Moreover, unlike Lasere,

Jones had never taken any steps to modify, what he perceived to

be, the faulty design of the rod end.

          Asplundh does not respond to the problem of Jones's

lack of specialized knowledge and experience.     Rather, it

suggests that it is enough that Jones observed the rod end

firsthand, that his opinion testimony helped the jury to

determine the cause of the lift's failure and the role played in


22
 . As noted, Lasere's bases for his opinion were: (1) the
design featured pointed step brackets resting on the fuel tanks;
(2) the fuel tanks were near the cab and the engine; (3) the
reasonable inference that this design had a tendency to cause
punctures of the tanks in roll-over accidents; and (4) and the
fact that he found a simple way to make the design safer.
it by the rod manufactured by Benton Harbor, and that Jones was

subject to cross-examination.    We disagree.   As we have stated,

under Rule 701 the trial judge must play some gatekeeping role so

as to ensure that the rationally derived and helpfulness

requirements of the rule are met.

          To use a simple yet illustrative example, if an issue

in a case was whether the sun revolved around the earth, and the

proponents of the Ptolemaic system proposed to prove their case

by lay opinion testimony, such testimony could satisfy Asplundh's

requirement of "firsthand" observation ("I have observed the sun

firsthand for many years, and I have seen that each day it moves

across the sky from the east to the west.").     Such testimony

would also be helpful to the jury to the extent that it would

tend to suggest a result that the jury should reach.     And such

testimony could be subjected to cross-examination by a proponent

of the Copernican system.    But it does not follow that this lay

opinion testimony meets the rational basis or helpfulness

requirements as they are contemplated by Rule 701 or that it

would be admissible.   Yet nothing in the district court's

analysis would have excluded such testimony.




                            IV. Conclusion

          We are convinced that the court’s admission of Jones’s

opinion testimony was not harmless and therefore represents

reversible error, since we cannot conclude that "it is highly

probable that the error did not contribute to the judgment."
Advanced Med. Inc. v. Arden Med. Sys., 955 F.2d 188, 199 (3d Cir.

1992).   As we have explained, the district court erred in

admitting Jones’s testimony under Rule 701 by failing to apply

its analysis with the rigor required in this type of case.    More

particularly, the district court needed to determine whether

Jones’s knowledge or experience qualified him to offer an opinion

which attributed the accident to metal failure and the allegedly

improper design of Benton Harbor’s hydraulic cylinder.   There is

no indication in the record that Jones possessed sufficient

knowledge or experience to allow Asplundh to satisfy the standard

articulated today and obtain admission of Jones's opinion.

Nevertheless, we will remand the case to allow the district court

to determine, in light of our opinion, whether to permit further

proceedings to qualify Jones's opinion.    In the absence of such

proceedings or the establishment of such qualification, the

district court should order a new trial.

          The judgment of the district court and its order

denying the motion for a new trial will be reversed and the case

remanded for further proceedings consistent with this opinion.

                    ___________________________
Asplundh Manufacturing Division, a Division of Asplundh Tree
Expert Co.; National Union Fire Insurance Company of Pittsburgh,
Pa. v. Benton Harbor Engineering, Nos. 94-1095 and 94-1201


JOHN R. GIBSON, Senior Circuit Judge, dissenting.

               I respectfully dissent.

               The Court today painstakingly analyzes the history

of Rule 701 and its intended relaxation of the rules regarding

opinion evidence.   The Court then develops a "core area" of Rule

701 lay opinion testimony and unduly limits the admissibility of

testimony outside of that core area.   In order to do so, the

Court imposes on Rule 701 the language and requirements of Rule

702 that a demonstration of the witness's knowledge and

experience support the opinion, and thus abrogates the

distinction between Rule 701 and 702 in the area of technical

opinion evidence.   The Court then determines that the district

court did not use "sufficient rigor" in determining "whether the

testimony in question was informed by sufficient experience or

specialized knowledge," supra at 4, and utilizes an essentially

discretionary rule under the guise of plenary review.    In my

view, the district court properly applied Rule 701, and did not

abuse its discretion in admitting the evidence.


                                I.

               Today the Court argues that the district judge's

ruling on the admissibility of Jones's opinion evidence involved

interpretation of Rule 701 and, accordingly, should be given
plenary review.     The authority relied upon simply does not bear

the weight which the Court places on it.

                  In DeLuca v. Merrell Dow Pharmaceuticals, Inc.,

911 F.2d 941 (3d Cir. 1990), this Court held that the district

court's "cursory" ruling excluding expert testimony erroneously

interpreted the Federal Rules in two respects:     (1) the court

analyzed the expert's qualifications under Rule 703, rather than

Rule 702, id. at 953; and (2) the court implicitly required the

expert to accept a study's conclusion in order to utilize the

underlying data as a basis for testimony, although Rule 703

contains no such requirement.     Id. at 954.   Because admissibility

depended on the district judge's interpretation of Rule 703, the

Court applied a plenary standard of review, id. at 944, and

remanded the case for further consideration of the proffered

testimony.   Id. at 956-57.    Most tellingly, the Court instructed

that the ruling on remand should display "sensitivity to the

relevant policy judgments reflected in the Federal Rules of

Evidence," which "embody a strong and undeniable preference for

admitting any evidence having some potential for assisting the

trier of fact and for dealing with the risk of error through the

adversary process."    Id. at 956.
                  The Court also relies on United States v. Furst,

886 F.2d 558 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990),

which held that there was insufficient foundation for the

admission of business records.    Id. at 572.   In Furst, the Court
articulated the rule the Court today espouses, id. at 571, but

did not further indicate which standard it used, stating only

that "the district court erred" in admitting the evidence.     Id.

at 573.

                 Most significantly, however, both DeLuca and Furst

rely upon In re Japanese Electronic Products Antitrust

Litigation, 723 F.2d 238, 265 (3d Cir. 1983), rev'd on other

grounds sub nom., Matsushita Electric Industrial Co. v. Zenith

Radio Corp., 475 U.S. 574 (1986). In that case, this Court held:
               The scope of our review . . .
               depends on the basis for the [trial
               court's] ruling. When the trial
               court makes Rule 104(a) findings of
               historical fact . . . we review by
               the clearly erroneous standard of
               Fed.R.Civ.P. 52. But a
               determination [by the trial court],
               if predicated on factors properly
               extraneous to such a determination,
               would be an error of law. There is
               no discretion to rely on improper
               factors. . . . In weighing factors
               which we consider proper, the trial
               court exercises discretion and we
               review for abuse of discretion.


Id. at 265-66.   The Court proceeded to apply all three standards.

Most critically relevant for our purposes, the Court held that

the district court erred in developing its own standards and in

acting as the ultimate arbiter of the reliability of the

materials upon which the expert based his opinion.   See Zenith
Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1313,

1321-30 (E.D. Pa. 1981), rev'd, In re Japanese Elec. Prods., 723
F.2d 238.    This Court held the district court's approach to be

"fundamental legal error because, as a matter of law, the

district court must make a factual inquiry and finding as to what

data experts in the field find reliable."     In re Japanese Elec.

Prods., 723 F.2d at 277.23   This Court held that the district

court's approach "reject[ed] the decision of the Judicial

Conference, the Supreme Court, and Congress" in "adher[ing] to an

unusually restrictive view as to the basis on which an expert's

opinion may be laid."    Id. at 277.   The ruling of the district

court, containing legal interpretation of the meaning of the

Rule, was correctly subjected to review under a plenary standard.

                 The record before us stands in sharp contrast to

that in DeLuca and Furst, and, particularly, to that in In re

Japanese Electronic Products.    In the case before us, the

district court did not involve itself in an interpretation of the

Rule as in DeLuca and In re Japanese Electronic Products.     Those

cases cannot support application of the rule of plenary review in

this case.

                 Nothing in the record indicates that the district

judge engaged in interpretative analysis of the meaning of Rule


23
 . In In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d
Cir. 1994), cert. denied, 115 S. Ct. 1253 (1995), this Court
followed Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct.
2786 (1993), and rejected its substantive discussion concerning
Rule 703 in In re Japanese Electronic Products. Paoli, 35 F.3d
at 747-748. More significant for our purposes, Paoli continued
to recognize plenary review of a district court's interpretation
of a Federal Rule of Evidence. Id. at 749.
701.    Rather, the district judge carefully analyzed Jones's

deposition testimony and found it admissible by applying the

Rule.    His analysis was quintessentially an exercise of

discretion which should be reviewed only for abuse and be given

substantial deference.     The Court today pays no heed to the

district court's thorough and detailed ruling on the

admissibility of Jones's testimony, but simply casts that ruling

aside on the basis of this Court's own analysis.


                                 II.

                  A close look at the record reveals that the

district judge exercised great care in ruling on the

admissibility of this evidence.       After reading a portion of the

deposition during consideration of the objections, the district

judge remarked:
                  Just because you [sic] don't have a
                  sheepskin doesn't mean he is not an
                  expert. It seems to me he has
                  substantial knowledge in this area,
                  so that because of his employment
                  experience, many years on the job,
                  he can tell whether metal is
                  fatigued; he can tell whether
                  screws, threads, threading of
                  screws, whatever are shorn,
                  whatever, going beyond the ken of a
                  lay person.


                  (Emphasis added).

                  The district judge specifically

                  articulated Asplundh's argument

                  that Jones testified as an expert,
               not a lay person, and stated that

               "[u]nder [Rule] 701, of course, we

               are talking about lay opinion."

               The district court expanded upon

               this by stating:          This guy

               is not an expert.   However, he has

               all this experience, these are his

               opinions, these are the reasons for

               his opinions, but we are not going

               to call him as an expert.    We want

               to get the evidence in, let the

               jury assess it in view of his

               umpteen years on the force.

After dismissing the jury, the district judge commented to
counsel that:

               I don't have any background in
               metallurgy, but I can take this
               paper clip and I can bend it for a
               while. I can give you a pretty
               good idea when I think it's going
               to break because of metal fatigue.
               And all I do is occasionally use
               paper clips. That is a lay
               opinion.


After considering whether the rod's weakness required expert

opinion, the district judge commented:     "That would fall within

the ambit of common sense embraced by both sides here."

          The next morning, the district judge ruled:
               Counsel, with respect to the [Rule]
               701 issue, I have been reviewing
                the transcript. . . . So, under
                all the circumstances looking at
                Rule 701, as I must, and finding
                ample explanation, be it valid or
                not within the record for the 701,
                allegedly 701 opinions there
                adduced, I am going to overrule the
                objection and permit that testimony
                to be read. I believe it goes to
                the weight.


                The record before us reveals a painstaking study

of the deposition testimony of Jones and the application of Rule

701 in determining that it was admissible.   This evidentiary

ruling is palpably an exercise of discretion rather than an

interpretation of the Rule.


                               III.

               The Court today rewrites Rule 701, holding that

the district court misinterpreted Rule 701 by failing to examine

with sufficient rigor whether Jones possessed the knowledge or

experience necessary to offer an opinion of a technical nature.

Supra at 4.   When the Court's lengthy analysis and discussion is

stripped aside, the holding has two parts:   first, the Court has

interpreted Rule 701 to incorporate the Rule 702 requirement that

there be a demonstration that the witness possesses sufficient

experience or specialized knowledge to qualify the witness to

express a technical opinion; second, the Court requires that this

Rule be examined with sufficient rigor.

                The Court articulates the experience and knowledge

requirement after an exercise in ambivalence.   The Court first
refuses to hold "that all lay witnesses offering opinions that

require special knowledge or experience must qualify under Rule

702."   Supra at 23.   It so states after having found problematic

the views of some courts which would permit a lay witness in

technical areas to diminish the need for the "knowledge, skill,

experience, training or education" of the witness qualifying

under Rule 702.    Supra at 22 n.14.   The Court then states that

"the admissibility of opinion evidence under the strictures of

Rule 701 is not without limit," and reads the language of the

Rule to require that "a lay opinion witness have a reasonable

basis grounded either in experience or specialized knowledge for

arriving at the opinion he or she expresses."     Supra at 24-25.

The Court comments "[t]he judicial Rule 701 screening that we

speak of for cases such as this one is not very different from

the screening that attends the ordinary expert qualification

ruling."   Supra at 27.    It goes so far as to commend the rule

followed in Delaware which excludes lay opinion requiring special

knowledge, skill, experience or training.     Supra at 23-24 n.16.

                  The Court holds that "[i]n order to satisfy these

Rule 701 requirements, the trial judge should rigorously examine

the reliability of the lay opinion by ensuring that the witness

possesses sufficient special knowledge or experience which is

germane to the lay opinion offered."     Supra at 25.   These are not

requirements of Rule 701, but rather Rule 702.     Thus, as much as

the Court protests, it has indeed stitched to the fabric of Rule
701 the language and requirements of Rule 702.   This is directly

contrary to the teaching of Daubert v. Merrell Dow

Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), which focused on

the language of the Rule 702, in issue before it.

               If the Court stopped at this point, we could

simply observe that the district court made the appropriate

findings of experience and knowledge germane to the profferred

opinion, based on a lengthy colloquy with counsel and a complete

study of the deposition testimony overnight, before admitting the

testimony under Rule 701.

               The Court today, however, does not stop with

incorporating the provisions of Rule 702 into Rule 701.    It adds

the "sufficient rigor" requirement, which it gives plenary

review.

               Indeed, the basis of the Court's decision is that

the district court made an impermissible interpretation of Rule

701 because it "failed to examine with sufficient rigor" whether

the testimony was informed by sufficient experience or

specialized knowledge.   Interpretation of a rule requires a

determination of the meaning of the language of the rule.    On the

contrary, failure to examine the testimony with sufficient rigor

involves a value judgment and a weighing of factors, which

inherently relate to the exercise of discretion.    Failure to

examine with sufficient rigor simply does not equate to
interpretation.     The rationale of the Court can find support only

from Lewis Carroll.24

                  Further, the sufficient rigor test creates no

legal yardstick upon which the district court's ruling can be

measured.    Certainly, with respect to Rule 701 and numerous other

evidence questions, the admissibility of evidence involves a

determination of where on a spectrum the testimony falls.              This

is reason for applying an abuse of discretion test to such

considerations.     It is, however, the trial court's determination

of such questions to which we apply the abuse of discretion rule.

Here, the Court has simply moved the exercise of discretion from

the district court and into the hands of the appellate court.

What is sufficient rigor and what is not simply becomes a call

for the appellate court, not unlike the decision of a baseball

umpire, except there is no definition of the strike zone.

                  The Court finds it necessary to concede that the

district court "did summarily conclude at one point in its

analysis that Jones's 'employment experience' gave him

2
.   Carroll wrote:

                  "When I use a word," Humpty Dumpty
                  said, in rather a scornful tone,
                  "it means just what I choose it to
                  mean--neither more nor less."

                  "The question is," said Alice,
                  "whether you can make words mean so
                  many different things."
LEWIS CARROLL, THE ANNOTATED ALICE: ALICE'S ADVENTURES IN WONDERLAND & THROUGH
THE LOOKING GLASS 269 (Clarkson N. Potter, New York 1960).
'substantial knowledge in this area,'" but that the court did not

examine "with sufficient rigor the question whether Jones

possessed the knowledge or experience necessary to offer an

opinion of such a technical nature."       Supra at 31.   The Court

today simply refuses to accept that the district court, with a

firm understanding of the requirements of Rule 701, made

appropriate and sufficient findings to support the admissibility

of the evidence.

                  The Court's rewritten Rule 701 replaces the

district court's discretion on admitting or rejecting evidence

with appellate discretion exercised under a formula with no true

objective standard and plenary review.        The Court effectively

switches the roles of the trial and appellate courts.


                                    IV.

                  This Court has held that a trial court's

determination of the admissibility of lay opinion testimony "may

be overturned only for clear abuse of discretion."        Joy Mfg. Co.

v. Sola Basic Indus., Inc., 697 F.2d 104, 111 (3d Cir. 1982).

Weinstein's Evidence, citing numerous cases, states succinctly:
"Basically, Rule 701 is a rule of discretion."        3 JACK B. WEINSTEIN

ET AL.,   WEINSTEIN'S EVIDENCE ¶ 701[02], at 701-31 (1995).   The

district court's careful ruling, which we have discussed above,

and the record upon which it was based compellingly demonstrate
that the court did not abuse its discretion in admitting the

testimony of Jones.

               Jones testified regarding differentiations in

color at the fracture site and that the rod fatigued and broke.25

He also testified that the stop blocks were not relevant to the

accident26 because the rod eye broke off due to the way the rod



3
 . ASPLUNDH'S COUNSEL: With respect to the cylinder rod
portion, the broken end, what with respect to the color of the
broken end did you observe?
          JONES: Well, one was oxidized. The one that had been
broken prior or earlier on was oxidized.
          ASPLUNDH'S COUNSEL: When you say "oxidized" 
          JONES: It's a different color. It's duller  more
dull.
          . . .
          JONES: And the fresh break was simply fresh.

See App. at 162.

          ASPLUNDH'S COUNSEL: Can you tell me upon what you base
the opinions you just gave on?
          . . .
          JONES: Well, I saw the rod removed from the eye. I
saw where it had fatigued and broke halfway through, and then I
saw where it was a fresh break. So one shows something that had
been broken for a long period of time and another one breaking
recently. And it broke at the thread, and it broke through the
place where the pin was installed.

See App. at 160-61.
4
 . ASPLUNDH'S COUNSEL: Why do you say that it's your belief
that [the stop blocks] have no bearing on the case?
          . . .
          JONES: Okay. Because the presence of those blocks,
whether they're there or not there would not have stopped the
breaking of  off the rod eye. They're not relevant.
          ASPLUNDH'S COUNSEL: Why do you say that?
          . . .
end was drilled through, threaded, and, thus, weakened.27    He

concluded that this was the problem which caused the failure of

the boom.   He further stated that he had not seen a cylinder

configured in this way.

                  Jones's observations were based upon his practical

experience.   He was fleet maintenance supervisor for the City of

Portland at the time of the accident and had held this position

for over ten years, supervising between 60 and 100 employees, 6

or 7 city repair shops, and the maintenance of 1,385 pieces of

equipment, including the Asplundh aerial lift.     In that job,

Jones spent 30 percent of his time overseeing the work done and

had done mechanical work himself.     In a previous job, he riveted
(..continued)
          JONES: Because the rod eye broke off because of the
way the end of the rod was drilled to secure a screw on the rod
eye.

See App. at 159-60.
5
 . ASPLUNDH'S COUNSEL: Okay. As fleet maintenance manager for
the City of Portland, did you develop a conclusion as to why the
accident occurred?
          . . .
          JONES: The reason that this thing broke and Sackerson
was killed is because of the way the rod itself fatigued inside
the rod eye. First one half and then the other half went to
ultimate at the time it finally eventually broke. The reasons
are two: one, the hole through the pin caused the  yeah, the
rod to be weakened and, two, the threads on the eye itself  on
the rod itself caused a breaking point. They were sharp, and it
broke right at that point where all of those things intersected.
That was the problem. There's no doubt in my mind about it,
. . . .

App. at 160-61.
blowoff fuel tanks for military aircraft.    He stated that he had

a high mechanical aptitude and understood the way things worked.

Some of the deposition transcript upon which the district court

based its ruling is significant, although not introduced into

evidence at trial. For example, Jones stated:
               Well, even if you work in your own
               garage, if you take a piece of
               metal and put it in a vice and bend
               it back and forth enough times, it
               fatigues and it breaks. Anyone
               who's ever dealt with anything
               solid knows that. You can do it
               with a paper clip, bend it until it
               breaks. That's fatigue. I
               certainly know what metal fatigue
               is through my own knowledge and
               discovery of the way life works.


Given Jones's experience, the district court did not abuse its

discretion in concluding that he was qualified to express a lay

opinion on metal fatigue.

                  Indeed, the district court considered the factors

the Court today requires, specifically, Jones's substantial

knowledge, employment experience, and years on the job.    Any
interpretation of Rule 701 in this case springs from this Court's

own analysis, rather than the application of Rule 701 by the

district court.    As the district court simply applied Rule 701 to

the profferred testimony, we must judge that determination on an

abuse of discretion basis.

                  The Court today simply gives insufficient weight

to the district court's articulated reasoning that his opinion

was based on his experience and that Jones had substantial
technical knowledge so as to tell whether metal is fatigued and

whether threads are shorn, which goes beyond the ken of a

layperson.     The Court should not reject the articulated reasoning

of the district court so facilely.

                  The Court today firmly asserts that metal fatigue

is a technical concept, and that "the realm of common knowledge

[does not extend] to such issues as the presence and cause of

metal failure and the proper design of hydraulic cylinders."

Supra at 34.    The Court switches the roles of the trial court and

the appellate court.    The district court made abundant findings

not only on Jones's knowledge and experience, but also on the

common knowledge concerning metal fatigue.    It is the appropriate

role of the district court to make such findings.    Today, the

Court simply rejects these views and appropriates the factfinding

role to itself.

                  Perhaps the physical process of metal fatigue

requires technical knowledge, but the appearance of a metal

fracture site demonstrating fatigue failure was described by

Jones, and the district court properly concluded this was based

on his knowledge, an appropriate subject for lay opinion.

                  The ruling of the district court and the deference

due it must be considered in light of the evident fact that this

is a nation where many individuals grow up with extensive

mechanical experience and capabilities.     Repairing household

machinery, automobiles and farm equipment is a central part of
life for many individuals, from early to late years, either

vocationally or avocationally.   Fatigue failure of metal is not

unfamiliar to such persons.   The testimony given by Jones

explaining his background fits squarely into this pattern as the

district judge recognized.

                Textual support for Jones's opinions can be found

in 8 Am. Jur. Proof of Facts Metal Failure 127 (1960 & Supp.

1994), which states that, after a number of cycles of stress, a

small crack may form in the metal where the stress is highest

and, under continued stress, grow until the metal fractures from

overload.   Id. at 129.   Proof of Facts outlines the signs of

metal fatigue, including the fracture pattern on the broken

surfaces and the presence of stress raisers such as threads and

holes.   Id. at 130-31.   Proof of Facts describes the markings on

fracture surfaces as follows:
               A fatigue fracture will often show
               a characteristic pattern on the
               fracture surfaces. Frequently
               there will be two areas that are
               markedly different in appearance.
               This is because only a portion
               fractured from fatigue, the
               remainder failing from overload.
               The fatigue portion will often be
               shiny and will often contain
               conchoidal or "clam shell" markings
               which indicate the position of the
               crack at the various stages of its
               progression. The overload portion,
               on the other hand, will generally
               be duller and will show some
               ductility or plastic deformation.
Id. at 145 (emphasis added).   While Jones did not testify about

clam shell markings, he did carefully explain the differing

colors of the metal, indicating the development of the fracture,

the overstressing of the metal, and the final parting at the

fracture surface.

               The text discusses the use of experts in analyzing

fatigue factors, but closes with the following observation:
               While the aid of competent
               professional help is important in
               explaining the failure from a
               scientific standpoint, the
               assistance that may be given by
               persons qualified by training and
               experience in a particular trade or
               craft should not be overlooked.
               For example, a knowledge of the
               properties and characteristics of
               metals is essential to a blacksmith
               or welder, and either may have
               acquired by experience a knowledge
               as to the dangerous conditions in
               metals brought about by surface
               irregularities, notches, tool marks
               and the like. Similarly, a
               mechanic experienced in working
               with trailers would be qualified to
               testify as to the dangers inherent
               in a loose trailer hitch, and an
               elevator repairman may speak
               authoritatively concerning
               experience in the industry with
               cable failures and the standard
               practice of periodically cutting
               off and discarding a length of
               cable to avoid failures.

Id. at 137.   Jones's testimony is just such an example.


               The Court's opinion, with its abundance of

scholarly reasoning, proves self-defeating.   In essence, the
Court simply examines Jones's qualifications as an expert, points

to his experience and opines that Jones's experience has nothing

to do with designing or evaluating the design of machinery.

Supra at 35.   However, design was not the central point of

Jones's testimony.    Although Jones testified that he "had never

seen a cylinder that size configured that way," see App. at 167,

the central thrust of his testimony concerned his observations of

the fracture itself and his opinion that this caused the collapse

of the lift boom.28

               The Court also points out the deficiencies of

Jones's formal education:    that he had taken no courses in

metallurgy, material failure or metal fatigue, had not designed a

hydraulic cylinder, and had but one year of college education

with no studies in material compositions.    Supra at 32.   These

comments might bear on the qualification of Jones to give expert

opinions under Rule 702, but they do not reach the practical



6
 . The Court characterizes Jones's opinion as stating that "the
fracture was caused by metal fatigue and was attributable to the
design of the rod end." Supra at 6. The Court later
characterizes the issue in the case as "whether it was
permissible for Jones to express the opinion that the rod end had
broken due to metal fatigue and that the design of the rod end
was a 'problem.'" Supra at 32. The Court then determines that
Jones was not qualified to express an opinion on whether the rod
end was defectively designed. Supra at 33-35. The Court's
characterization carries Jones's testimony beyond that which his
spoken words will support. In substance, Jones described a
fatigue fracture which occurred at the rod's weakest point, where
it was drilled through and threaded. I read Jones's testimony to
express an opinion on causation, but not on defective design.
experience and knowledge that qualify Jones to express a lay

opinion.   Compare FED. R. EVID. 701 and FED. R. EVID. 702.

                Rule 701 does not require technical knowledge or

expertise but, rather, requires that lay opinion be rationally

based on the witness's own perceptions, i.e. "the familiar

requirement of first-hand knowledge or observation."      FED. R.

EVID. 701 advisory committee's note.    Jones's opinion was based

on first-hand observation of the fractured rod.     From a distance

of approximately 15 inches, he observed the differing colorations

of the metal fracture surface and saw that the rod broke in a

threaded area with a hole in it.    He had ample opportunity to

observe the fracture and to form his opinion.

                In Teen-Ed, Inc. v. Kimball Int'l, Inc., 620 F.2d

399, 404 (3d Cir. 1980), the Court observed that the essential

difference between lay and expert opinion evidence is that the

expert may answer hypothetical questions, whereas the lay witness

may testify only from facts perceived by him, not those "made

known to him at or before the hearing."     Id.; FED. R. EVID. 703.

See also In re Merritt Logan, Inc., 901 F.2d 349, 359-60 (3d Cir.

1990).   Jones was not asked hypothetical questions, he did not

express expert opinions, and his testimony was not admitted on

that basis.

                When evidence is admitted under Rule 701, "cross-

examination and argument will point up the weakness," id., and
the jury will weigh the lay opinion testimony in light of any
countervailing evidence.   Benton Harbor's counsel scrutinized

Jones's training and experience on cross-examination and read

excerpts to the jury which highlighted those issues.     Jones's

lack of formal training should not prevent the admission of his

opinion.   See United States v. Myers, 972 F.2d 1566, 1577 (11th

Cir. 1992) (admitting lay opinion testimony that a stun gun

caused burn marks based on the witness's perception of the burned

skin and 19 years of police experience; holding that the

opinion's lack of a technical/medical basis could be exposed on

cross-examination and affected the weight, not the admissibility,

of the evidence), cert. denied, 113 S. Ct. 1813 (1993); Joy Mfg.,

697 F.2d at 112 (holding that inability to state precisely why

product was inoperable did not prevent lay testimony that product

was inoperable but, rather, was "proper material for effective

cross-examination").   Based upon Jones's experience, the district

court could properly conclude that Jones was qualified to express

these opinions.   Any shortcomings or weaknesses of the testimony

could have been developed on cross-examination.   As the district

judge cogently observed, the issue was not one of possessing a

sheepskin, but rather of possessing common experience.    Even with

flaws in reasoning, a district judge may properly conclude that

"hearing the . . . testimony and assessing its flaws was an

important part of assessing what conclusion was correct and may

certainly still believe that a jury attempting to reach an

accurate result should consider the evidence."    In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994) (discussing

Daubert, 113 S. Ct. 2786, and the requirements for expert

testimony), cert. denied, 115 S. Ct. 1253 (1995).

                The Court today appears to recognize and generally

to limit the application of Rule 701 to human appearance, human

conditions, and, perhaps, vehicle speed and property value.      This

should not be the extent of permissible lay testimony.    Jones's

testimony that metal fatigue caused the fracture and the accident

is more evocative and understandable than a long physical

description of the rod's outward appearance, although Jones

offered both.   The Court quotes the following from United States

v. Yazzie, 976 F.2d 1252, 1255 (9th Cir. 1992), a case which

involved lay opinion on whether a rape victim appeared to be

fifteen or sixteen years old:
               "If it is impossible or difficult
               to reproduce the data observed by
               the witnesses, or the facts are
               difficult of explanation, or
               complex, or are of a combination of
               circumstances and appearances which
               cannot be adequately described and
               presented with the force and
               clearness as they appeared to the
               witness, the witness may state his
               impressions and opinions based upon
               what he observed."


Id. at 1255 (allowing lay opinion testimony) (quoting United

States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982)).     These

general principles apply equally to Jones's testimony.    See also

Eckert v. Aliquippa & S. R.R. Co., 828 F.2d 183, 185 n.5 (3d Cir.

1987) (cited with approval by the Court and allowing lay opinion
testimony as to whether an accident would have occurred had the

railroad cars involved coupled properly).

                In determining the propriety of lay opinion, other

courts have considered:   (1) whether the witness has personal

knowledge of the facts from which the opinion was derived; (2)

whether the opinion is rationally supported, i.e. "apparent to a

'normal person' in [the witness's] position;" and (3) whether the

opinion is helpful to the trier of fact.    Soden v. Freightliner

Corp., 714 F.2d 498, 511-12 (5th Cir. 1983) (citing Lubbock Feed

Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 263 (5th

Cir. 1980)).   Jones's testimony is not unlike that at issue in

Soden and meets the standards articulated by Soden.

                The Court here argues that "cases like Soden

stretch the doctrinal boundaries of Rule 701 opinion testimony."

Supra at 22.   The witness in Soden, Lasere, was a service manager

in charge of the maintenance of trucks, and his qualifications

closely parallel those of Jones.29   Lasere testified that a step

bracket located near the fuel tank caused holes in the tank and

that this design was dangerous.   Id. at 510-11.   The Fifth

Circuit stated that Lasere's opinion was one that "may have been

more properly made by one more formally an expert," id. at 512,


7
 . The Court today accepts Lasere's knowledge and qualifications
but rejects those of Jones. Certainly, the fact that Lasere had
eighteen years experience and Jones ten is not sufficient basis
to distinguish the two. This only serves to illustrate that this
determination is one of degree, properly decided by the district
judge in the exercise of discretion.
but that his opinion was adequately grounded in his own

experience and observation.    Likewise, Jones based his opinion of

causation on his examination of the rod, the different

coloration, and the fact that the break occurred near a drilled

hole in a threaded area.    The court in Soden commented that

Lasere's testimony on causation was rationally supported and

"would have been apparent to a 'normal person' in his position."

Id.   This applies equally to Jones's opinion.    The court in Soden

expressed reservation only as to Lasere's testimony that the

situation was dangerous.    However, this final step in Lasere's

testimony is not matched by a similar opinion of dangerousness by

Jones.   Thus, rather than this case exceeding the scope of Soden,

Jones's observations and opinions are squarely supported by

Soden's reasoning.

                The district court reached a different conclusion

on Jones's competence to testify as a lay witness than would this

Court.   However, this should not be dispositive unless there is

an abuse of discretion.

                Professor Wigmore comments that the true theory of

the opinion rule is simply to reject superfluous evidence.         7

JOHN HENRY WIGMORE, EVIDENCE § 1918, at 11 (James Chadbourn rev.

1978).   Wigmore's text quotes from Cornell v. Green, 10 S. & R.
14, 16 (Pa. 1823), stating that when the facts from which the lay

witness "received an impression are too evanescent in their

nature to be recollected, or are too complicated to be separated
and distinctly narrated, his impressions from these facts become

evidence."   Id. at § 1924, at 33.   Wigmore concludes that:

"[w]hat is chiefly wrong is by no means the test itself, but the

illiberal and quibbling application of it."    Id.

                  The Court states that it can find no reported case

where a lay witness testified regarding metal fatigue.    However,

none of the cases cited in footnote 22 of the Court's opinion

deal with the admissibility of opinion evidence.30    Further,

Salter v. Westra, 904 F.2d 1517, 1525 (11th Cir. 1990) (cited by

the majority in footnote 22), discusses not only expert

testimony, but lay testimony of a mechanic describing the

fracture surfaces of the lug bolts with the evident corrosion and

rust streaks.31

8
 . The fact that "experts have testified (and disagreed) as to
whether metal fatigue could be detected," supra at 33, is not
relevant here. None of the cases cited by the Court involving
expert opinion on metal fatigue remove such testimony from the
realm of lay opinion. See Fusco v General Motors Corp., 11 F.3d
259, 261 (1st Cir. 1993) (noting experts' disagreement on whether
fatigue or impact caused fracture); Marrocco v. General Motors
Corp., 966 F.2d 220, 225 (7th Cir. 1992) (noting experts'
agreement that loss of allegedly defective component precluded
evaluation of possible defects, including fatigue); Salter v.
Westra, 904 F.2d 1517, 1520 (11th Cir. 1990) (noting experts'
disagreement as to cause of accident where their opinions "relied
heavily upon the mechanic's description of the physical state of
the wheels and the tire hub before he repaired them"); Grover
Hill Grain Co. v. Baughman-Oster, Inc., 728 F.2d 784, 789 (6th
Cir. 1984) (noting expert testimony that metal fatigue caused
fracture). Most tellingly, these opinions each deal with issues
other than the admissibility of this evidence.
9
 . See also Sullivan v. Rowan Companies, Inc., 952 F.2d 141,
145-46 (5th Cir. 1992), where the district court ruled that a
witness was not qualified to testify as an expert on metallurgy,
but allowed him to testify as a lay witness under Rule 701 on his
               In distinguishing Rule 701 and Rule 702 evidence,

we should recognize that the expert with impressive credentials

comes before a jury with an aura unmatched by most lay witnesses.

We also must recognize that the jury may weigh either lay opinion

testimony or expert testimony and find it wanting.   In the case

before us however, the district court, after a painstaking study

of the deposition testimony, determined that Jones's testimony

was properly admissible as lay opinion, and that the jury should

be the arbiter of its weight and value.

               The district court did not abuse its discretion in

admitting Jones's testimony under Rule 701.




(..continued)
observations from microscopic examination and testing of a socket
which split in half. The court did not allow the witness to
opine whether the socket was defective or why it failed, but
commented that a contrary decision would not necessarily have
required reversal. Id. at 146.
