lane rural highway in a two thousand ford focus when suddenly a deer jumped out in front of their vehicle her driver miss mott swerved and in a  wreck that occurred at below highway speeds the ford focus rolled during that roll the roof came down on veronica his head and rendered her permanently quadriplegic she continues to survive in her home and i will appreciate that today during the trial of this matter the district judge caused for radhika and her children substantial prejudice by virtually abrogating the law of dart v we be on design defect product design defect by permitting cross examination of brian herbst our first and most important liability when a witness an engineer with the out of court deposition of his partner another engineer steve forrest without notice supposedly on the for the purposes of impeachment under evidence rule eight zero three eighteen as if this out of court deposition in another case that involved an s u v a not a car was a treatise was authoritative publication the judge as a result of both of these very severe errors was able to keep out some extremely important evidence and to basically short circuit the testimony of our primary expert the first testifying expert in the case so that at that point that was pretty much the end in the jury's mind you ask for a limiting instruction no honor and the reason we didn't was because a limiting instruction would have implied that the objection was under rule seven zero three of the federal rules of evidence when that was not even an issue at the time you could a still asked for a limited instruction you were not barred or present prevented by rule seven o three from asking for a limited instruction so that it would be limited simply to the issue of impeachment or what however you wanted to fashion your limitation around it knowing that it was going to come in asking the judge actually that it's not coming in for the truth of the matter asserted but you didn't make any efforts at least from what i can see in the record well ordinarily under those circumstances a limiting instruction if it's simply for impeachment is not a requirement of the rule and is not is not necessary it would be necessary if we're under rule seven zero three but in this case what we had was an attack upon the credibility of the witness that was then also in in terms of the questioning and in terms of the final argument transformed into a liability argument that mr forrest had indeed opined that a vehicle with the strength of the ford focus would have been perfectly fine in his about an ink your argument is that in the lawyers closing statement they argued that this was really admitted for its truth they were starting to use that cross examination for its truth i think is what your point is so i'm wondering why you didn't ask for a limiting instruction telling the jury this can't be offered for its truth at which point i assume they couldn't made that closing statement argument you're under but your honor because under eight  three eighteen this was presented as as a as an as a treatise as as something that was permitted for authoritative purposes and and as a still trying to figure out this your argument here today seems a little inconsistent from what you are arguing at the trial court regarding what occurred with the bertelsmann deposition because you are trying to get that sort of on in the same reason that the opposing side was trying to get mr moore's deposition and so we consider that you're in consistent sort of position regarding judgment via i agree that that was inconsistent but we were presented with a district judge who is who is at least with perspective eight zero three eighteen and at least with respect to dart v we be off in a in a different land i did not understand i don't think the parties truly understand stood why so much of that evidence was being kept out when when it was in fact relevant to darby we'd be in terms of the post two thousand evidence from valvo and so forth but moving back to the bertilsson stuff  why something that immediately preceded the institution of the federal motor vehicle safety standard that was still in effect and governed the design of the ford vehicle the basic essence of our defective defect claim  would not be qualified under the same analysis i'm not sure if i would have objected to the eight o three eighteen is strenuously had the judge done the same thing for one side as the judge did for the other but but the judge didn't do that and that's and that's part of the substantial prejudice that that permeated this trial and that that is the reason why i did let's talk about that yes i mean for the for you to succeed at this just assume that the that it was  deposition transcript wasn't read to the jury no i disagree but go ahead please there was questions regarding what was said and they were phrased based on what the lawyer was looking at but i don't recall that it was specifically read to the jury it seems like it was an exchange of a couple of questions about opinion concerning the roof strength and whether to take a case with a certain strength to weight ratio that's the way i read it  i'm trying to figure out why that those references would have tainted the entire verdict well well why i'm sorry because of those references with the jury in light of everything they heard this was a seventeen day trial in which they heard a lot of other testimony regarding roof strength why would this have affected the outcome the said the the testimony by mr forrest in the deposition which was presented to to look at while the cross examination was done was that your partner of many many years mr forrest would never take a case against a three time strength to weight ratio vehicle now that was as close to verbatim out of that deposition as you could possibly get but there was a a lot more testimony i imagine in that deposition that could have been read and referred to it seems like they did hone in on the part that they wanted to and it didn't say that that five times the weight being sufficient what ford was trying to see here and he was one witness regarding that put the evidence that the jury heard in this very lengthy trial in this sad case as you identified the result  being the victim here seriously injured but they the jury heard that the strength to weight ratio was designed to have a two point eight eight ratio they heard that it was actually a three point zero five ratio the federal motor vehicle safety standard passing test is one point five strength to weight ratio there was a lot of other evidence surrounding this i mean i'm trying to figure out why this reference to the you do one expert part of this and the reference that your partner said might have said something differently or did say something differently regarding an entirely different case would taint all the evidence that came in and the jury's verdict because it's the central issue in the case and when your partner when your partner says i wouldn't take this case you have destroyed if it is impeachment it destroys the credibility of the expert one witness when there were many that went to the same i don't disagree with you that this was a very important issue in the structural engineer mechanical engineer able to address that issue if it to if and to the extent any other witness did it it was collaterally mr herbst was there to carry the plaintiff's burden of proof once this and disclosed and analyzed inability i mean we had no way to even meet it mr hurst had an opportunity i guess he went ahead and explained or discussed why his opinion was different from  all he could do was generalize and speculate but your honor i know but he said specifically that he didn't see you know what the deposition they were talking about he qualified that you can you know doesn't know for sure why that might have been said and that was not his opinion yet you made some reference as to why his opinion would have been different well his he was he was caught completely off guard and had absolutely no substantive knowledge of the information about which he was being examined trial the jury got to ask questions and they asked questions about several different things did they ever ask about this the partner for us use not to my knowledge your honor i did not i do not remember any questions in that respect moving on i will reserve about three minutes it looks like i've got three and forty you know those are the two egregious examples of what happened in this case getting our product liability case zero three eighteen here was just holy holy wrong to say we agree with you about that couldn't the thing couldn't we find that it was proper impeachment otherwise if it hadn't been called a treatise i don't think so your honor i don't think that you can suddenly come up with the deposition of an out of court witness and then start using it for the substance of of the document and if it's not offered for though if he's if you're you're just asking if you work with someone who seems to disagree with you we're not saying that the jury should listen that on its own for it's true but we're wondering how you explain how you and your partner have why wouldn't it be proper impeachment i know of no that permits that to be proper impeachment under these circumstances i would have to look at the rule it wasn't cited by by ford i have the only two reasons three eighteen and seven o three i would have to speculate but i don't believe that if there's anything whatsoever that would permit that use of this both from disclosure purposes eight zero three eighteen and rule seven zero three the judge also acted to exclude mr camm who was an expert on the political nature of f m v s s to sixteen that was wrong i don't want to you know forget the fact that also the judge judge jury was never instructed that the  that manufacturers are held to a standard of experts in this case and they should have been it was unclear it was ambiguous from the instruction that was given the the evidence that was kept out was was  multitude multiple and completely prejudicial to the plaintiff's case veronica was done wrong in this case and the and the importance of eight zero three eighteen in the forest of impeachment is highlighted by the fact that this case was tried once without that impeachment and was tried once with and the jury hung the first time around and the second time they ruled against veronica and i submit to you that you have to also consider the cumulative error rule because when you count all this stuff up this case was against all fair legal justice thank you and levy on behalf of defendant ford motor company over the course of the sixteen day trial plaintiff had a full and fair opportunity to present a lot of evidence on the key thing she had to prove to establish liability in this case let's talk about what we've been talking about your introduction help me understand your basis for admitting mr force opinion from another case rule seventy three i don't simple you relied on trial for based on treaties that is clearly you didn't do that in your brief i think you said that back from that because you recognize that that was not the proper basis to pursue this line of questioning but a trial that turned out this deposition caught him cold and started asking him about the the opinions of his partner was he talked asked this about this at his deposition deposition at the deposition of bryan her status where you would have an opportunity at that point in time to see if he would adopt this or explain that that didn't happen when i was on the stand at trial trial counsel asked him if he relied on his for his forests opinions and under all seventy three it's always appropriate to cross examine an expert upon the basis upon which they reach their conclusions if they ask him that at the deposition the deposition is not part of the record i know that that's why i'm trying to figure out i mean so i just asked him if he could be relied on his on his partner doesn't look like they gave him the you know advance notice regarding this and basically then put in the reference of his partner seen something different his business partner saying something different i'm just trying to figure out how that was appropriate pietschmann testimony well because it's always appropriate to cross examine an expert upon the base for the basis of their opinion and so when herbst had testified categorically that a roof needed to have at least a four to one strength to weight ratio and the foundation was laid at trial to show that he relied record trial counsel was laying foundation to show that mr forrester mr herb's had worked together for many years they had coauthored many papers and that he believed mr forrest testimony was reliable and that his opinions and conclusions are the sort of information upon which he formed his own opinions it's an unusual case but here the district court upon hearing the testimony of her just maybe your paraphrasing but i don't recall him ever saying that his opinion about the roof in this case was based on forest opinion about the roof in this case he never said that right he testified more generally that he and forest shared opinion in general the big read about things correct i didn't mean that his opinion about this car was based on well correct and so in the context the district court heard what herbst had to say about whether he shared what forest forests opinions and the district court determined in its discretion that forest that herbst had testified that he found the opinions reliable and so for did proceed to ask him to explain how he could say categorically that a four to one strength to weight ratio or something more  necessary when he and his business partner would agree that in some cases a three to one strength weight ratio is sufficient but if the court believes that the foundation wasn't appropriately laid and that he needed to testify more specifically that he believed that that he relied on the specific definition transcript again we come back to was should it have been admitted and if it shouldn't have been admitted was the air prejudicial the error was not prejudicial this was only a few questions out of a very long examination her testimony went on for hundreds of pages and it was very clear both through how he explained his own opinions through the lens of being cross examined so once confronted with force opinions he explained yes we agree on many things but here's why i don't think a three to one strength to weight ratio is is always enough but it wasn't just limited to the question and there was an explanation the closing argument is that you need to discuss that because defense counsel brought up the forced opinion during closing argue arguments you know basically to call into question the credibility of mr herbst one of the last things the jury heard was that an expert testify in this case thought that this case should not have been brought this seems to really compound the error or admitting inadmissible hearsay so how does that not rise to the level for me to responses first because no limiting instruction was requested the hearsay objection ultimately can can be waived and it did come and it has counsel or defense counsel is able to argue because no living instruction was requested but also the but references or interject to the hearsay they did object to the line of cross examination true but ultimately they are they talked about hearsay and then fourth counsel said but also it's impeachment and the district court said ah that's what i thought you would say and that was where the district court said ok i'm going to overrule the objection so the district court understood that it was coming in for purposes of impeaching harps on the basis of the whether his opinions were supported by this the bias of sufficient foundation and once it came in for that purpose a limiting instruction should have been requested in order to prevent counsel from arguing in closing about the substantive nature of the testimony but in any event it wasn't at the end of the closing argument it was  in the middle of the closing argument and a very long argument that undermined her credibility on many more important issues that were much more fundamental to the jury's verdict in this case what you heard you're posing osborne's that this was central to the case this witness mr herbst was you know very important why then doesn't it to taint the verdict because the strength to weight ratio was really only a very small aspect of this case and there was a volumes of evidence about whether three to one was sufficient from herbst himself and from many other witnesses including all of ford's auto mode of engineers but i mean her if we believe just hypothetically that this cross examination undermined her can you point to any other plaintiff witness who made that argument in addition to her well i think carly word there causation expert also testified about troop strength and perps testified about real strength not just with the three to one ratio but all sorts of other information and when confronted with this testimony to the three about the three to one he was able to explain and even further explain on redirect how strength to weight ratio is important but it's definitely not the decisive factor in determining whether roof was defective so once her testified to that and said and so you know even with a three to one strength to weight ratio the car is not didn't have a sufficiently strong roof because it wasn't appropriately tested for many of the other reasons that he put forth he was able to get his opinion across to the jury very well and i think if the jury discredited herbst it was not on the basis of this very minor portion of his testimony it was on other aspects of his testimony that were inherently incredible such as the fact that he used testing that ology that has been rejected by the society of automotive engineers he had a frankly implausible view that this catastrophic accident was basically the equivalent of coming to rest at a stop sign that his career focused on medication consulting and he'd never once designed an automobile but there were so many pieces for impugning purpose credibility that i think the very astute jurors who asked and many questions as and very skeptical questions of plaintiff's witnesses came to the conclusion that they didn't believe what he had to say about the real strength but it wasn't because of the forest impeachment it was because opinions were frankly imposible on pretty much every topic upon which he testified over two days let was not part of this witness is a study of this case you have suggested that it's miscible because it was these partners opinion in some other case now if you were to prevail on your claim that there was no error involved in asking this question or be permitted asked this question how would you faction a rule that would permit what would you have to say that a witness who is an expert are permitted to testify as an expert on cross examination everything that everybody else has said on another occasion that he happens to respect i think you could fashion a very narrow rule that applies when you're talking about an expert who right so often the rule i would propose is that if an expert witness testifies that there is somebody upon which who he has specifically relied to i want to let me stop you there do you have evidence and here that he said i specifically relied on this guy he said i find he said he shares his opinions and that they were developed that was in the abstract that was not with respect to any issue in this case well i think that in context the district court understood him to have said he found those opinions reliable if you disagree with that reading of the record then i would agree that  that you know we would need a rule that would you know he needs to have testify that he relies on it if you disagree with that the record shows that then it was not permissible to admit it but we then they constantly are relying on each other's opinions and so they rely on the same materials and so in under the unique facts of this particular expert and his partner i think you know ford was relying on materials upon which your ally in every case  you are in a unique position in that you didn't try the case correct or arguing it to fail on appeal but you do have to defend it can i ask you what's your best case to support a determination you know i would say also the handprint case which explains why when it expert testifies that he's relied on on testimony that the that is in that deposition testimony then it's admissible but also  relied on it so the corollary to that would be when an expert has relied on it it would be appropriate impeachment and you know i think there's a reason that the hanford case focuses on the reliability element whether it has been testified to be reliable because that is what distinguishes i don't think i mean i think the question what we're concerned about is what if we read this record as he did not rely on his partner's testimony hanford doesn't help you out of that you need a harmless i think the question was do you have a case where impeaching someone improperly is considered harmless  i'm not sure which case i cited that goes to that but i would be happy to provide the court with that authority if the court would require it thank you if you permit this behavior by ford regardless of what their history is which is not a part of the record it will absolutely open the floodgates and it will go contrary to  decades and decades of authority in this area what happened in this transcript at seventy nine is how about his opinions on matters of ruth strength specifically would you believe based on the twenty some plus years that you have worked with him and your knowledge of his engineering judgment would you consider his opinions to be reliable answer generally yes i would say that again we don't agree on absolutely everything but certainly i think our opinions have been consistent in the past now what what that's trying to do is tell you that mr force is an encyclopedia that i've been presented this book and his part of my five foundation i'm saying that book is generally a thorough authoritative what ford's trying to do is put mr forest up as an encyclopedia that somebody can just vouch for being generally a rival and then we're off we go that's floodgates your honor and we can't permit that to happen because thank you yes