                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0766n.06

                                           No. 12-6593

                          UNITED STATES COURT OF APPEALS                               FILED
                               FOR THE SIXTH CIRCUIT                             Aug 16, 2013
                                                                             DEBORAH S. HUNT, Clerk

FISH FARMS PARTNERSHIP,                                  )
                                                         )
       Plaintiff-Appellant,                              )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
               v.                                        )        COURT FOR THE EASTERN
                                                         )        DISTRICT OF TENNESSEE
WINSTON-WEAVER CO., INC.,                                )
                                                         )
       Defendant-Appellee.                               )
                                                         )



BEFORE: ROGERS and COOK, Circuit Judges, and VAN TATENHOVE, District Judge.*

       ROGERS, Circuit Judge. Fish Farms Partnership operates a large tomato farm in Newport,

Tennessee. The partnership consisted of brothers Larry and Jimmy Fish, until Larry died in 2010.

In 2009, the partnership filed suit against Winston-Weaver Co., Inc., and Crop Production Services,

Inc., in the Eastern District of Tennessee, seeking “monetary damages for defective fertilizer which

severely harmed tomato plants owned by [Fish Farms], in turn damaging [Fish Farms’] commercial

tomato farming business” during the 2008 growing season because the plants produced “substantially

less fruit than expected.” R.27 at 1, 6, PageID #209, 214. Crop Production Services was eventually

dismissed from the case by stipulation, and on November 20, 2012, the district court granted

summary judgment to Winston-Weaver, the fertilizer manufacturer, on the remaining claims. The


       *
         The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 12-6593
Fish Farms Partnership v. Winston-Weaver Co., Inc.


court concluded that Fish Farms failed to produce admissible evidence creating a genuine issue of

material fact that Fish Farms actually suffered the harm it alleged. Despite expert testimony that

excess nitrogen caused excessive vegetative growth and flower abortion, Fish Farms produced no

admissible evidence of such symptoms in its plants—rather, the only evidence of actual damage that

was proffered was to the effect that the farm’s plants were drying out and dying.

       Having carefully considered the record on appeal, the briefs of the parties, and the applicable

law, we are not persuaded that the district court erred in granting summary judgment to Winston-

Weaver on all of Fish Farms’ claims. Because the reasoning that supports the grant of summary

judgment has been articulated by the district court, the issuance of a detailed written opinion by this

court would be duplicative and serve no useful purpose. Accordingly, the judgment of the district

court is affirmed upon the reasoning employed by that court in its Order dated November 20, 2012.

       In doing so, we reject Fish Farms’ assertion that the district court contravened or disregarded

the Magistrate Judge’s October 23, 2012 order denying Winston-Weaver’s motion to exclude the

testimony of Fish Farms’ expert witness, Dr. Harry Mills. This assertion is inconsistent with the

district court’s actual opinion, in which the court distinguished the proper function of Dr. Mills’s

testimony as evidence that could go to the issue of causation, i.e., whether “high levels of nitrogen

can cause excessive leafing and diminished fruit production in tomato plants,” but not as evidence

of damage, i.e., “whether plaintiff’s tomato crop actually suffered excessive leafing and diminished

fruit production.” R.96, at 5, PageID #1580. The district court reached this conclusion because “Dr.

Mills did not visit plaintiff’s farm. Dr. Mills bases his opinions on what Larry Fish told him . . . .


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No. 12-6593
Fish Farms Partnership v. Winston-Weaver Co., Inc.


What Larry Fish told Dr. Mills is now being offered by plaintiff to establish the truth of the matter

asserted—that the plaintiff suffered the alleged harm.” Id. at 6, PageID #1581. The district court did

not implicitly or explicitly discount the function of Dr. Mills’s expert testimony or suggest that his

opinion, including the assumptions about damages he acquired from his conversations with Mr. Fish,

would not be submitted to the jury. The court merely noted, consistent with the Federal Rules of

Evidence, that Fish’s statements could not be introduced to the jury, through Dr. Mills’s testimony,

as proof of the alleged harm. This conclusion was correct.

        It is axiomatic that a hearsay statement is an out of court statement introduced for the truth

of the matter asserted. Fed. R. Evid. 801. As the district court noted, Larry Fish’s statements to Dr.

Mills fit this definition precisely. Although Dr. Mills was permitted by FRE 703 to use this hearsay

evidence to reach his opinion, the evidence cannot be used for the truth of the matter, and the district

court correctly decided not to consider it for that purpose. See Fed. R. Evid. 703; Matter of James

Wilson Assocs., 965 F.2d 160, 172–73 (7th Cir. 1992) (“If for example the expert witness (call him

A) bases his opinion in part on a fact (call it X) that the party’s lawyer told him, the lawyer cannot

in closing argument tell the jury, ‘See, we proved X through our expert witness, A.’”).

        Nor did the district court disregard reliable lay evidence of plaintiff’s harm and damages, as

Fish Farms alleges. Fish Farms’ brief argument on this subject reveals that it can submit no proof

that the tomato plants were suffering from excessive vegetative growth and flower abortion beyond

Mr. Fish’s hearsay statements introduced through Dr. Mills. Although Fish Farms points to testing




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No. 12-6593
Fish Farms Partnership v. Winston-Weaver Co., Inc.


and replacement costs as damages, these expenses are not recoverable without any proof that the

tomato plants were harmed by Winston-Weaver’s fertilizer in the manner alleged in the complaint.

       For the foregoing reasons, we affirm the judgment of the district court.




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