
USCA1 Opinion

	




          June 27, 1995     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2034                                   JENNIFER HOULT,                                Plaintiff - Appellee,                                          v.                                   DAVID P. HOULT,                                Defendant - Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of this Court issued on May 22, 1995, is amended          as follows:               Replace the  second  full  paragraph  on  page  9  with  the               ____________________________________________________________          following:  "In any case, we need not at this  time determine the          _________          precise  contours  of the  district court's  responsibility under          Daubert.    The  gravamen  of defendant's  argument  is  that the          _______          district court  wrongly decided  a  point of  law.   This is  not          grounds for relief under  Rule 60(b).  See Silk  v. Sandoval, 435                                                 ___ ____     ________          F.2d  1266,  1267-68 (1st  Cir.),  cert.  denied, 402  U.S.  1012                                             _____________          (1971).  See also Rodr guez Antuna v. Chase Manhattan Bank Corp.,                   ________ ________________    __________________________          871 F.2d  1, 2 (1st  Cir. 1989).   We conclude that  the district          court's admission of the expert testimony, even if error -- as to          which we  express no opinion --  was not a "mistake,"  as we have          defined  that term  under Rule 60(b)(1).   See Silk,  435 F.2d at                                                     ___ ____          1267-68.  See also Rodr guez Antuna, 871 F.2d at 2; Scola v. Boat                    ________ ________________                 _____    ____          Frances, R., Inc., 618 F.2d 147, 153-54 (1st Cir. 1980)."          _________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2034                                   JENNIFER HOULT,                                Plaintiff - Appellee,                                          v.                                   DAVID P. HOULT,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Edward J. Collins for appellant.               _________________               Kevin  P.  O'Flaherty, with  whom  Adrienne  M. Markham  and               _____________________              ____________________          Goulston & Storrs were on brief for appellee.          _________________                                 ____________________                                     May 22, 1995                                 ____________________                    TORRUELLA, Chief Judge.   Plaintiff-appellee,  Jennifer                    TORRUELLA, Chief Judge.                               ___________          Hoult,  brought  suit  against  her  father, defendant-appellant,          David   Hoult,  in   the   United  States   District  Court   for          Massachusetts alleging,  inter  alia, assault  and  battery,  and                                   _____  ____          intentional infliction of emotional distress.  A  jury returned a          verdict in the amount of $500,000 for plaintiff.  Defendant filed          timely  appeals   -- first,  of the  denial of  his motion  for a          mistrial and, second,  of the jury verdict -- both  of which were          ultimately  dismissed by this court for lack of prosecution.  One          year after  judgment issued, defendant filed a  motion for relief          from  judgment pursuant  to Rule  60(b) of  the Federal  Rules of          Civil Procedure.   Defendant appeals the  district court's denial          of that motion.  For the reasons stated herein, we affirm.                                      BACKGROUND                                      BACKGROUND                    Plaintiff commenced this action  in July 1988 alleging,          among other things, that from the time she was approximately four          years old until she was approximately sixteen years old defendant          sexually abused and  threatened her.  Plaintiff  alleged that she          had  repressed all  memory  of  the  abuse  until  she  began  to          recapture those memories during therapy sessions in October 1985,          when she was twenty-four.                    On February 2,  1993, the parties presented the case at          a summary jury trial.  Counsel for both parties outlined for  the          summary jury the evidence they expected to present at trial.  The          presentation  by plaintiff's  counsel included  a summary  of the          expected testimony  of, among  others, the plaintiff,  her former                                         -2-          therapist,   Eileen  Jacobsen  ("Jacobsen"),  and  her  examining          psychiatrist,  Dr. Renee  Brant ("Dr.  Brant").   Defense counsel          presented  no  expert testimony,  relying instead  on defendant's          general denial of the  charges and a refutation of  the testimony          of Jacobsen and Dr. Brant.   Defendant prevailed on the merits at          the summary jury trial.                    On June 24, 1993, the case went to trial.  It was tried          for eight  days.  Both Dr.  Brant and Jacobsen testified  for the          plaintiff.  On July 1, 1993, the jury returned a verdict in favor          of the  plaintiff in the amount  of $500,000.  On  July 14, 1993,          the district court entered judgment in the case.  Defendant moved          for  a new  trial, and  that  motion was  denied in  August 1993.          Defendant appealed both the  denial of his motion for a new trial          and the judgment.  Both appeals were ultimately dismissed by this          court for lack of prosecution.                    On July 14,  1994, exactly  one year from  the date  of          judgment,  defendant,  through new  counsel,  filed  a motion  to          vacate the judgment.   The  district court denied  the motion  to          vacate  in a  detailed opinion  delivered from  the bench  at the          conclusion  of a  hearing  on defendant's  motion.   This  appeal          followed.                                      DISCUSSION                                      DISCUSSION                    Defendant  asserts essentially four  grounds for relief          from  judgment under  Rule  60(b).1   We  address each  of  these                                        ____________________          1  Rule 60(b) provides, in pertinent part:                                         -3-          arguments  seriatim below.  We  note at the  outset that district          courts enjoy  broad discretion in deciding  motions brought under          Rule  60(b), and we  review such rulings  only for  abuse of that          discretion.  See Cotto  v. United States, 993 F.2d  274, 277 (1st                       ___ _____     _____________          Cir. 1993); Teamsters, Chauffeurs, Warehousemen & Helpers  Union,                      _____________________________________________________          Local No. 59 v. Superline Transp.  Co., 953 F.2d 17, 19 (1st Cir.          ____________    ______________________          1992).   In addition, our review is  limited to the denial of the          motion itself.  We may not  consider the merits of the underlying          judgment.  Ojeda-Toro v. Rivera-M ndez, 853 F.2d 25, 28 (1st Cir.                     __________    _____________          1988).  Finally, we note that "Rule 60(b)(6) may not be used as a          back-door substitute for an  omitted appeal, and, in all  but the          most exceptional circumstances, a  party's neglect to prosecute a          timeous appeal will bar  relief under the rule."  Cotto, 993 F.2d                                                            _____          at 278.                                        ____________________                      On  motion and  upon  such terms  as  are                      just, the court may  relieve a party or a                      party's legal representative from a final                      judgment,  order,  or proceeding  for the                      following   reasons:       (1)   mistake,                      inadvertence,   surprise,  or   excusable                      neglect;  (2)  newly discovered  evidence                      which  by  due diligence  could  not have                      been discovered in time to move for a new                      trial   under   Rule  59(b);   (3)  fraud                      (whether heretofore denominated intrinsic                      or   extrinsic),  misrepresentation,   or                      other misconduct of an adverse party; (4)                      the  judgment is  void; (5)  the judgment                      has   been    satisfied,   released,   or                      discharged,  or  a  prior  judgment  upon                      which  it is  based has been  reversed or                      otherwise  vacated, or  it  is no  longer                      equitable that the  judgment should  have                      prospective application; or (6) any other                      reason   justifying   relief   from   the                      operation of the judgment.                                         -4-                                          I.                                          I.                    Defendant's primary contention is  that the trial judge          erred  in  allowing plaintiff's  expert  witness,  Dr. Brant,  to          testify with respect to the phenomenon of repressed memory in the          context of childhood sexual abuse.  Defendant  contends that this          constitutes  "mistake,  inadvertence,   surprise,  or   excusable          neglect" within the meaning of Rule 60(b)(1).                    With  respect to her qualifications as an expert in the          areas  of general  psychiatry,  child  psychiatry, and  childhood          sexual abuse, Dr.  Brant testified that she: is a graduate of the          Harvard Medical School; has a private psychiatric practice; was a          founder  of the sexual abuse unit at Children's Hospital; holds a          joint  appointment  as  an  instructor  of  medical  students  at          Children's  Hospital  and Harvard  Medical  School;  serves as  a          consultant on  the treatment of  children who have  been sexually          abused; has lectured  widely on  the issue of  the treatment  and          diagnosis of  children who  have suffered sexual  abuse; and  has          served as an expert witness in several other actions.                    Dr. Brant testified generally  at trial with respect to          the psychological  dynamics and  clinical profiles of  victims of          childhood  sexual  abuse,  and   also  about  the  phenomenon  of          repressed  memory of  traumatic  events.   She further  testified          that,  based on her  clinical evaluation of  the plaintiff, there          "was  a lot  of  correlation" between  the plaintiff's  "clinical          presentation"  and the  clinical  profile of  a childhood  sexual          abuse victim.                                         -5-                    At  no time  before or during  either the  summary jury          trial or the actual jury trial did defendant object to either Dr.          Brant's  qualifications as an expert witness  or her testimony in          general.  Nor did  defendant present any expert testimony  of his          own.   Instead,  defense  counsel vigorously  cross-examined  Dr.          Brant, regarding both her theories and techniques in general, and          her  application   of  those  theories  and   techniques  to  her          evaluation of the plaintiff.  Defense counsel also challenged Dr.          Brant's testimony with specific articles and studies by academics          and  other mental  health professionals.   The defendant  was the          only  witness to  testify  for the  defense.   The  defense  used          essentially the same strategy at trial that it  successfully used          at the summary jury trial.                    Rule  103(a) of  the Federal  Rules of  Civil Procedure          provides that  a claim  of error  may  not be  predicated on  the          admission of evidence  unless it affects  a substantial right  of          the  party and a timely objection is made.  Defendant nonetheless                     ___          argues that  the Supreme  Court's recent  decision in  Daubert v.                                                                 _______          Merrell  Dow Pharmaceuticals, Inc., __  U.S. __, 113  S. Ct. 2786          __________________________________          (1993), requires the district  court to make a sua  sponte ruling                                                         ___  ______          on  the admissibility of expert testimony.   Defendant bases this          argument on the following language from Daubert:                                                  _______                      [U]nder the [Federal Rules  of Evidence],                      the  trial judge must ensure that any and                      all  scientific   testimony  or  evidence                      admitted  is  not   only  relevant,   but                      reliable.                         The primary locus  of this  obligation                      is Rule 702,  which clearly  contemplates                                         -6-                      some degree of regulation of the subjects                      and theories  about which an  expert must                      testify.  .  .  .    The  subject  of  an                      expert's testimony must be  "scientific .                      .   .   knowledge."       The   adjective                      "scientific" implies a  grounding in  the                      methods   and   procedures  of   science.                      Similarly, the  word "knowledge" connotes                      more    than    subjective   belief    or                      unsupported speculation. . . .  In short,                      the   requirement    that   an   expert's                      testimony    pertain    to    "scientific                      knowledge"  establishes   a  standard  of                      evidentiary reliability. . . .                                        . . .                         Faced   with   a  proffer   of  expert                      testimony,  then,  the  trial judge  must                      determine  at  the  outset,  pursuant  to                      Rule 104(a),   whether   the  expert   is                      proposing to testify to  . . . scientific                      knowledge. . . .          Daubert, 113 S. Ct. at 2795.2          _______                    The district court rejected  defendant's interpretation          of  Daubert,  primarily  because  it is  inconsistent  with  Rule              _______          103(a).   The position of  the district court  is consistent with          the one federal  appeals court decision we found  addressing this                                        ____________________          2    Rule  702  provides: "If  scientific,  technical,  or  other          specialized knowledge will assist the trier of fact to understand          the evidence or to determine a fact in issue, a witness qualified          as  an  expert  by  knowledge, skill,  experience,  training,  or          education,  may  testify thereto  in the  form  of an  opinion or          otherwise."             Rule 104 (a)  provides: "Preliminary questions  concerning the          qualification of a  person to  be a witness,  the existence of  a          privilege, or  the admissibility of evidence  shall be determined          by  the  court,  subject to  the  provisions  of subdivision  (b)          [pertaining   to  conditional   admissions].     In  making   its          determination it is  not bound  by the rules  of evidence  except          those with respect to privileges."                                         -7-          issue.  See  McKnight v.  Johnson Controls, Inc.,  36 F.3d  1396,                  ___  ________     ______________________          1407 (8th Cir. 1994).                    Although  we  agree  with  the result  reached  by  the          district court, we take a somewhat different view of Daubert.  We                                                               _______          think  Daubert  does  instruct   district  courts  to  conduct  a                 _______          preliminary  assessment of  the reliability of  expert testimony,          even  in the absence of an objection.   We do not think, however,          that district courts  are required, sua sponte, to  make explicit                                              ___ ______          on-the-record  rulings  regarding  the  admissibility  of  expert          testimony.  The  reasoning of  the Second Circuit  in a  somewhat          analogous case is instructive in this regard.                    The two defendants in United States v. Locascio, 6 F.3d                                          _____________    ________          924 (2d Cir. 1993), argued that a district court admitting expert          testimony based on inadmissible evidence pursuant to  Rule 703 of          the  Federal  Rules  of Civil  Procedure  must  make  an explicit          finding  with regard  to  the trustworthiness  of the  underlying          sources of information upon  which the expert relied.   The court          rejected this argument, stating:                         We  decline,  however, to  shackle the                      district  court  with  a   mandatory  and                      explicit  trustworthiness analysis.   The                      district judge, who has the ideal vantage                      point to evaluate  an expert's  testimony                      during trial, already  has the  authority                      under  Fed. R.  Evid. 403  to conduct  an                      explicit trustworthiness  analysis should                      she  deem one  necessary.    In fact,  we                      assume    that    the   district    court                      consistently and  continually performed a                      trustworthiness analysis  sub silentio of                                                ___ ________                      all  evidence  introduced at  trial.   We                      will  not,   however,  circumscribe  this                      discretion  by  burdening the  court with                                         -8-                      the  necessity  of  making   an  explicit                      determination for all expert testimony.          Locascio, 6 F.3d at 939 (citations omitted).          ________                    We think Daubert  and Rule 104(a) place some  burden on                             _______          the  district court  judge to  make preliminary  evaluations with          respect  to  the  reliability  of  evidence,  but  we  decline to          "shackle  the  district  court  with a  mandatory  and  explicit"          reliability analysis.  Rather, we assume that the  district court          performs such an  analysis sub silentio throughout the trial with                                     ___ ________          respect to all expert testimony.                     In  any case, we need  not at this  time determine the          precise  contours of  the district  court's responsibility  under          Daubert.    The gravamen  of  defendant's  argument  is that  the          _______          district  court wrongly  decided a  point of  law.   This is  not          grounds for  relief under Rule 60(b).   See Silk v. Sandoval, 435                                                  ___ ____    ________          F.2d  1266,  1267-68 (1st  Cir.),  cert.  denied, 402  U.S.  1012                                             _____________          (1971).  See also Rodr guez Antuna v. Chase Manhattan Bank Corp.,                   ________ ________________    __________________________          871 F.2d 1,  2 (1st Cir.  1989).  We  conclude that the  district          court's admission of the expert testimony, even if error -- as to          which we  express no opinion --  was not a "mistake,"  as we have          defined that  term under Rule  60(b)(1).  See  Silk, 435 F.2d  at                                                    ___  ____          1267-68.  See also Rodr guez Antuna, 871 F.2d at 2; Scola v. Boat                    ________ ________________                 _____    ____          Frances, R., Inc., 618 F.2d 147, 153-54 (1st Cir. 1980).          _________________                      Defendant also asserts, in a similar vein, that Local          Rule 26.4(A) of the United States District Court for the District          of  Massachusetts requires the trial  judge to make  a sua sponte                                                                 ___ ______          ruling  on the admissibility of  expert testimony.  This argument                                         -9-          lacks merit.  Local  Rule 26.4(A) provides that, "[a]t  the final          pretrial conference, the  judge shall  consider: . .  . making  a          ruling on  the admissibility of  expert testimony at  the trial."          The  plain language  of this  rule merely  requires  the district          court  to consider making a ruling on the admissibility of expert                    ________          testimony; it does not require the court to make such a ruling.3                                         II.                                         II.                    Defendant's  second  contention  is  that   an  article          entitled The Reality of  Repressed Memories, by Elizabeth Loftus,                   __________________________________          which was  published one  month before trial,  constitutes "newly          discovered evidence" within  the meaning of Rule  60(b)(2).  Rule          60(b)(2) gives the district court discretion to vacate a judgment          based  upon "newly  discovered  evidence which  by due  diligence          could not  have been discovered in  time to move for  a new trial          under Rule 59(b)."  The article critically examines and questions          the  reliability  of  repressed  memories,  particularly  in  the          context  of  childhood  sexual  abuse   allegations.    Defendant                                        ____________________          3  Defendant also  asserts that his trial counsel's  decision not          to present  expert testimony in  his case-in-chief, or  object to          the  testimony of  Dr.  Brant, was  a  "mistake" or  "inexcusable          neglect" within the meaning of Rule 60(b)(1).  We have repeatedly          held  that "the  acts  and omissions  of counsel  are customarily          visited upon the client in a civil case."  Cotto, 993 F.2d at 281                                                     _____          (citing  Link v. Wabash R.R.  Co., 370 U.S.  626, 633-34 (1962));                   ____    ________________          see also United  States v.  One lot $25,721.00  in Currency,  938          ________ ______________     _______________________________          F.2d 1417, 1421 (1st Cir. 1991); Ojeda-Toro, 853 F.2d at 30.  The                                           __________          principle carries particular force in this case because the  very          defense strategy  defendant now objects to  was used successfully          by defense counsel at the summary jury trial.  Thus, not only was          defendant fully  aware of his counsel's  strategy, but presumably          he was satisfied  with the result at the summary  jury trial.  We          find  no justification for departing from the general rule that a          defendant is bound by the acts and omissions of his attorney.                                         -10-          maintains  that  the article  could have  been  used at  trial to          challenge the testimony of Dr. Brant.                    Defendant's motion to  vacate the  judgment under  Rule          60(b)(2) fails.   Because  Rule 60(b)(2)  is aimed at  correcting          erroneous judgments based on the unobtainability of evidence, the          burden is on the party presenting the new evidence to demonstrate          that  the  missing  evidence   was  "'of  such  a   material  and          controlling  nature  as  [would] probably  [have]  change[d]  the          outcome.'"  Anderson  v. Cryovac,  Inc., 862 F.2d  910, 924  n.10                      ________     ______________          (1st Cir. 1988) (quoting 7 J.  Moore & J. Lucas, Moore's  Federal                                                           ________________          Practice     60.23[4]  at   60:201-02  (2d  ed.  1985)  (footnote          ________          omitted));  see also  Federal  Deposit Ins.  Corp.  v. La  Rambla                      ________  ____________________________     __________          Shopping Cntr.,  791 F.2d  215, 223-24  (1st Cir. 1986);  Bradley          ______________                                            _______          Bank v. Hartford Assurance &  Indem. Co., 737 F.2d 657, 662  (7th          ____    ________________________________          Cir.  1984).   Defendant  has  failed  to  demonstrate  that  the          opinions expressed  in the pertinent article  would probably have          changed  the  outcome  of the  trial.    Indeed,  the article  is          equivocal when it  comes to the validity  of repressed memories.4          Its central thesis is simply that  more research needs to be done          and  therapists need to be more cognizant of the possibility that          they are "suggesting" childhood sexual abuse.  This is hardly the          sort  of  extraordinary  "new   evidence"  contemplated  by  Rule          60(b)(2).                                        ____________________          4   For example, in her concluding  remarks the author notes that          "[d]espite  lack of  corroboration,  some of  these recollections          could be authentic.  Others might not be."                                         -11-                                         III.                                         III.                    Defendant next contends that  the judgment in this case          is "void" within the meaning of Rule 60(b)(4).  We have explained          that "[a] judgment is void, and therefore subject to relief under          Rule  60(b)(4),  only  if  the court  lacked  jurisdiction  or in                           ____                                       __          circumstances in  which the  court's action  amounts  to a  plain          usurpation  of power  constituting a  violation of  due process."          United  States v. Boch Oldsmobile,  Inc., 909 F.2d  657, 661 (1st          ______________    ______________________          Cir. 1990) (citation  omitted).   A judgment is  not void  simply          because it is  or may have  been erroneous; it  is void only  if,          from its inception, it was  a legal nullity.  Id. at  661; Lubben                                                        __           ______          v. Selective Serv.  Sys. Local Board No., 453  F.2d 645, 649 (1st             _____________________________________          Cir.  1972).  "In the interests of  finality, the concept of void          judgments  is narrowly construed."   Id.  at 661  (quoting United                                               __                    ______          States v. Berenguer, 821 F.2d at 22).          ______    _________                    Defendant contends that Dr. Brant "usurped the function          of  the   jury"  by  opining  on   the  plaintiff's  credibility.          Defendant  maintains that  admission of  this testimony  at trial          amounted  to a violation of  due process, and  therefore that the          judgment is void under Rule 60(b)(4).                    Dr. Brant  testified that  one of the  clinical factors          involved in her  evaluation of sexual abuse patients concerns the          potential for  fabrication --  specifically, whether  the patient          indicates a motivation to  fabricate the claims of sexual  abuse.          When  asked whether she developed any opinion with respect to her                                         -12-          evaluation of  the plaintiff in conjunction  with the fabrication          factor, Dr. Brant testified, without objection, as follows:                      So to the extent that  her feelings about                      her father were so  complex, I think in a                      situation   of   fabrication   or   false                      allegation what I might expect is someone                      who is angry, vengeful, wants to out  and                      destroy  someone, and  this is  the means                      they  will use  to do  it.  I  didn't see                      that at all with Ms. Hoult. . . .                      .  . .  I suppose  one of the motivations                      when   someone   is  involved   in  civil                      litigation, and you are looking for -- to                      see money for damages  -- is that you try                      to build as big a  case as you can  about                      how much pain  and suffering you are  in.                      Well, here she was telling me about . . .                      many  ways in which  she was feeling much                      better. . .  .  So  I thought about  that                      and  considered  that in  relationship to                      false allegation and fabrication.  I felt                      there was less indication of that. . . .                    It  is the function of  the jury alone  to evaluate the          credibility  of a  witness.   This  principle carries  particular          importance in a case, such as this one, where the  witness is the          alleged  victim and  a  party to  the  lawsuit.   When an  expert          witness  testifies   with  respect   to  the  credibility   of  a          victim/witness there is a  real danger that jurors will  lend too          much  credence  to  the   expert's  evaluation  of  the  victim's          credibility, at the expense of their own independent  judgment of          credibility.  See United States v. Rosales, 19 F.3d 763, 766 (1st                        ___ _____________    _______          Cir.  1994)   ("proffered  expert  testimony  [c]ould   create  a          substantial danger of undue  prejudice . . . because of its  aura          of  special reliability  and  trustworthiness")  (quoting  United                                                                     ______          States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)).          ______    ______                                         -13-                    We  addressed this  issue  recently.   In Rosales,  the                                                              _______          defendant argued  on appeal  that a  portion of  the government's          expert testimony should have  been excluded because it improperly          bolstered the testimony of the alleged sexual abuse victims.  The          expert testified  that children generally "tend  to be reluctant,          they  tend  to be  embarrassed,  uncomfortable,  ashamed of  what          happened.   They're very uncomfortable  giving details.   I see a          lot of that.  And I saw that in these children."  Id. at 765.  We                                                            __          concluded that the expert testimony in question "sent an implicit          message to  the jury that the children  had testified truthfully,          and this might therefore have interfered with the jury's function          as  the sole assessor of witness credibility."  We held, however,          that  even   if  the   probative  value   of  the  evidence   was          substantially  outweighed  by  the  risk  of  unfair  prejudice,5          admission of the evidence was not "plain error."6  Id. at 766.                                                             __                    We  think Dr.  Brant's testimony  may have  crossed the          line in commenting  upon the plaintiff's credibility.   Dr. Brant          did  not  limit her  testimony  to  "psychological literature  or          experience or to a  discussion of a class of  victims generally."                                        ____________________          5   Relevant evidence is admissible unless its probative value is          substantially  outweighed  by  the  risk  of   unfair  prejudice,          confusion,  or waste of time.   United States  v. Argencourt, 996                                          _____________     __________          F.2d 1300, 1305 (1st Cir. 1993); Fed. R. Evid. 403.          6   The  defendant in Rosales  had not objected  to the proffered                                _______          testimony  and,  therefore, our  review  was  confined to  "plain          error" rather than abuse of discretion.  Rosales, 19 F.3d at 765.                                                   _______          Because the defendant in the instant case did not properly appeal          the  judgment, our review is even more strictly constrained -- we          review only  for  a "plain  usurpation  of power  constituting  a          violation of due process."  See Boch Oldsmobile, 909 F.2d at 661.                                      ___ _______________                                         -14-          See United States  v. Binder, 769 F.2d 595,  602 (9th Cir. 1985),          ___ _____________     ______          quoted  in Rosales, 19 F.3d at 765.   Rather, she came perilously          __________ _______          close to testifying that  this particular victim/witness could be          believed.   See id.   If defendant had  properly objected to this                      ___ __          testimony  at  trial,  and  appealed  a  decision  admitting  the          testimony,  we would be faced with a difficult decision.  Because          the  defendant  in  this case  neither  objected  to Dr.  Brant's          testimony, nor appealed its  admission into evidence, however, we          review not for abuse of discretion or plain error, but only for a          "plain usurpation of the jury's function constituting a violation          of due process."   Boch  Oldsmobile, 909  F.2d at  661.   "[O]nly                             ________________          'rare instance[s] of a  clear usurpation of power' will  render a          judgment void."  Id. at 662 (citation omitted).  The testimony in                           __          question did not rise to this level.                    We  base  this conclusion  on  three  factors.   First,          Dr. Brant was subjected to  rigorous cross examination by defense          counsel.   In  particular, defense  counsel questioned  Dr. Brant          with respect to several  scholarly articles which contradicted or          called  into   question  Dr.  Brant's   opinions  concerning  the          phenomenon  of  repressed memories  in  alleged childhood  sexual          abuse  cases.   Second, defense  counsel repeatedly  attempted to          elicit opinion  testimony from  Dr. Brant  that she believed  the          plaintiff's allegations.   Dr. Brant steadfastly  refused to give          such  an  opinion,  explicitly  testifying:  "I  had  no  way  of          ultimately determining whether they were true  or not."  Finally,          the district court instructed the jury as follows:                                         -15-                      You should consider  each expert  opinion                      received in  this case and  give it  such                      weight as you may  think it deserves.  If                      you  should decide that the opinion of an                      expert   witness   is   not  based   upon                      sufficient  education and  experience, or                      if you should  conclude that the  reasons                      given in  support of the opinion  are not                      sound,  or   if  you  feel   that  it  is                      outweighed  by  other  evidence, you  may                      disregard the opinion entirely.                    Thus,    the   jury   was   presented   with   evidence          contradicting or calling into  question Dr. Brant's opinions, Dr.          Brant  herself testified that she  had no way  of knowing whether          the plaintiff's  allegations were  true, and the  court expressly          instructed  the jurors that they were free to reject the opinions          offered by  Dr. Brant.  Cf. Rosales,  19 F.3d at 766.   Under the                                  __  _______          circumstances, we conclude  that Dr. Brant's testimony did not so          plainly  usurp  the  function of  the  jury  as  to constitute  a          violation of due process.                    Defendant  also  contends  that plaintiff's  therapist,          Jacobsen, was improperly allowed to provide expert testimony, and          that  the jury  was therefore  "corrupted."   Plaintiff maintains          that Jacobsen testified only as a fact witness.  We have reviewed          Jacobsen's testimony  and think that  at certain points  she went          beyond  what  is  traditionally  allowed  for  a  fact  witness.7          Again,   however,  defendant   neither  objected   to  Jacobsen's          testimony nor  appealed its  admission into evidence.   Moreover,          while  some of her testimony might have been objectionable, we do                                        ____________________          7   For example,  she was  allowed to give  her opinion  that the          plaintiff  "will always have to  struggle with the  damage that I          think was done."                                         -16-          not think its admission was particularly prejudicial.  We discern          no violation of due process.                                         -17-                                         IV.                                         IV.                    Defendant's  final  contention  is  that  Judge Mazzone          failed  to comply with the certification  requirements of Rule 63          of the  Federal Rules of  Civil Procedure when  he took over  the          case  for visiting Judge  Van Sickle.8   Defendant  contends that          this  failure constitutes  "mistake,  inadvertence, surprise,  or          excusable neglect" within the meaning of Rule 60(b)(1).                    Just before  the close of evidence,  visiting Judge Van          Sickle informed counsel for both  parties that, although he would          be able to hear the rest of the evidence in the case, he would be          unavailable  for closing  arguments,  the jury  charge, and  jury          deliberations.   The parties had already  submitted proposed jury          instructions  to  Judge  Van   Sickle,  and  he  discussed  those          instructions  with counsel.   He informed  counsel that  he would          prepare jury  instructions for his  successor to use  in charging          the  jury.    On  June  30, 1993,  Judge  Mazzone  held  a  lobby          conference with counsel to discuss his taking over the case.  The          transcript  of the  June 30,  1993, lobby  conference speaks  for          itself.                         THE  COURT:   You all, of  course know                      that this case was originally assigned to                      me and  then went  to visiting Judge  Van                      Sickle,  and  because  he  is  no  longer                      available and is unable  to proceed, I am                      stepping in.   Now  I know you  know I've                      done a lot of work  in the case, but  the                                        ____________________          8   Rule 63 provides, in pertinent part:   "If a trial or hearing          has been commenced and the judge is unable  to proceed, any other          judge may  proceed with it  upon certifying familiarity  with the          record  and determining that the  proceedings in the  case may be          completed without prejudice to the parties."                                         -18-                      rules  require me  to certify  that I  am                      familiar  with the  case,  and I  will so                                                 ______________                      certify my familiarity with the record in                      _________________________________________                      the case. . . .                       ________                         If  you have  any objections  to that,                      the  case will  not  proceed.   So, I  am                      calling upon you now to tell me what your                      objections are.   All I'm going  to do is                      hear  closing statements.    I  have  the                      instructions  that  Judge Van  Sickle and                      you  have  worked out,  and  I  will give                      those to the jury.  I  have the jury form                      which you have worked out and I will give                      that.   So my  strong feeling is  that we                      should put this matter behind us, but  if                      you object to it, then I will have to get                      the whole transcript  and I will  have to                      read it.                         PLAINTIFF'S COUNSEL:    . .  . We  are                      content that you're familiar  enough with                      the case  and that this  certification is                      sufficient for us to proceed. . . .                         DEFENSE COUNSEL:   .  . . We  are also                      content,  with  the  request  that  we be                      allowed  to  briefly  read  through  this                      [proposed  jury instructions  prepared by                      Judge Van Sickle].                    Defense   counsel  did  not  object  to  Judge  Mazzone          finishing  the case,  and the  transcript plainly  indicates that          Judge  Mazzone  did  certify  his familiarity  with  the  record.          Accordingly, defendant's claim fails.                                          V.                                          V.                    As a  final  matter, we  note  that defendant  makes  a          general claim for relief under  Rule 60(b)(6), asserting that "it          would be  inequitable that  the  plaintiff continue  to have  the          benefit  of  a judgment  obtained by  what .  .  . is  a manifest          miscarriage  of  justice."   For  the  reasons previously  stated          herein, we find no exceptional circumstances excusing defendant's                                         -19-          failure  -- on two separate occasions -- to prosecute his appeals          of this case.                                      CONCLUSION                                      CONCLUSION                    The decision of the district court  denying defendant's          motion to vacate the judgment in this case is affirmed.                                                        ________                                         -20-
