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. e du/thir dc ir c uit_1998/104Filed May 11, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-2067

OLGA DRESSLER, Appellant

v.

BUSCH ENTERTAINMENT CORPORATION, D/B/A
SESAME PLACE; SESAME PLACE, A FICTITIOUS NAME

REGISTERED BY BUSCH ENTERTAINMENT CORPORATION D/B/A/ SESAME PLACE; SESAME
PLACE; BUSCH ENTERTAINMENT CORPORATION, A DIVISION OF ANHEUSER BUSCH, T/A SESAME PLACE;
BUSCH ENTERTAINMENT CORPORATION; CTW PARKS, INC.; ANHEUSER-BUSCH, INCORPORATED, Appellees

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA (Civil No. 95-cv-05274)

Argued: September 22, 1997

Before: Becker, Scirica, and McKee, Circuit Judges

(Filed May 11, 1998)Anne E. Pedersen (Argued)

Sheller, Ludwig & Badey 1528 Walnut Street, 3rd Floor Philadelphia, PA 19102

Attorney for Appellant

Charles W. Craven (Argued) Marshall, Dennehey, Warner, Coleman & Goggin

1845 Walnut Street Philadelphia, PA 19103

Attorney for Appellees

OPINION OF THE COURT

McKee, Circuit Judge.

Olga Dressler appeals from the judgment of the dist rict court in favor of defendant, Busch Entertainment Co rp. Dressler sued Busch for injuries to her back that s he maintains she sustained during a fall at an amuseme nt theme park owned by Busch. She alleges that the tri al court erred in instructing the jury, and in limitin g her expert witness' testimony. For the reasons that fol low, we agree that the trial court's jury instructions were erroneous, and will reverse the judgment and order of the dist rict court
and remand for a new trial.1

I.

On August 25, 1993, Olga Dressler and her son, Jaso n, visited Sesame Place, an amusement park in Langhorn e, Pennsylvania that is owned by Busch Entertainment Corporation. Dressler purportedly injured her back as she

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1. Since we are granting a new trial, we need not a ddress Dressler's assertions of error based upon the district court's restriction of her expert witness. Upon retrial, the issues of surpris e and prejudice that are at the heart of the parties' arguments on that issue on appeal will be

moot.

2fell going down a step leading into a shallow pool that was

part of an attraction known as the "Rubber Ducky Ra pids." Thereafter, she underwent lumbar disc surgery in an effort to correct her back injury, and alleviate her pain. Dressler is a registered nurse, and claims that she is now u nable to perform the duties of her profession because of bac k pain.

Dressler filed suit in the United States District C ourt for the Eastern District of Pennsylvania on August 17, 1995 to recover damages for the injury that she claims resu lted

from the fall. The matter was thereafter referred t o a magistrate judge for trial. See 28 U.S.C. S 636(c).

Dressler maintained that she slipped and fell becau se she did not see a downward sloping step which was under water and painted blue -- the same color as the res t of the pool. At trial, Dressler testified that when she sl ipped and fell, her "left leg flew up," App. at 97, her back made "a very loud cracking noise" and she "could hear people gas ping" at the sight of her. App. at 93-94. Mary Bellantoni, D ressler's friend, was the only eyewitness to the accident. Sh e corroborated Dressler's testimony regarding a fall and
further testified that Dressler was "in shock" and "crying hysterically" afterwards. App. at 307.

Dressler and Busch both presented expert testimony regarding the condition and design of the attractio n, including the steps where Dressler fell. At the clo se of the evidence, Dressler requested that the trial court g ive the following jury instruction based upon a belief that the defense expert's testimony regarding the painting o f the step was contradictory and contained willful falsif ications:

If you decide that a witness has deliberatel y falsified his testimony on a significatn [sic] point, you should take this into consideration in deciding whe ther or not to believe the rest of his testimony; and yo u may refuse to believe the rest of his testimony, but yo u are not required to do so.

App. at 35. See Pennsylvania Bar Institute, Pennsyl vania Suggested Standard Jury Instructions (Civ.) 5.05 (1 981). The trial court refused to give the requested instructi on, and instead used different language to explain how to a ssess testimony. Since the language that the court used i s at the

3heart of this appeal, we quote the relevant portion of the

court's charge at length:

[Y]ou must decide which testimony to believe and which testimony not to believe . . . . There are a number of factors you may take into account . . . i ncluding the following.

One, the witness' opportunity to observe the events he
described . . . . Two, the witness' intelligence and memory. T hree, the witness' manner while testifying. Four, whet her the witness has any interest in the outcome of t his case or any bias or prejudice concerning any party o r any matter involved in the case. And five, the reasonableness of the witness' testimony con sidered in light of all of the evidence in the case.

Again, ask yourselves if the witness' testim ony makes sense to you . . . . Now if you find that a witness' testimony is contradicted by what the witnes s has said or done at another time, or by the testimony of other witnesses, you may disbelieve all or any par t of that witness' testimony.

But in deciding whether or not to believe hi m or her, keep this in mind, people sometimes forget t hings. A contradiction may be an innocent lapse of me mory or it may be an intentional falsehood. Consider , therefore, whether it has to do with an important fact or only a small detail. Different people observing an event may remember it differently and, therefore, test ify about it differently.

You may consider the factors I have discusse d in deciding how much weight to give to the test imony. It is for you to say what weight you will give to the testimony of any and all witnesses. If you b elieve that any witness has willfully sworn falsely to a ny material fact of this case or has willfully exaggerat ed any evidence in this case you are at liberty to disbelieve the testimony of that witness in whole or in par t and believe it in part or disbelieve it in part, taking in to
consideration all of the facts and circumsta nce of the

case.

4App. at 696-98 (emphasis added). Dressler promptly

objected, arguing that the court's phrasing of the instruction improperly told the jury that it could disbelieve the testimony of a witness it believed "willfully e xaggerated" any evidence (emphasis added). This, Dressler conte nded, was contrary to the standard instruction that she h ad submitted. App. at 714. The court overruled Dressle r's objection and, following deliberations, the jury re turned a
verdict in favor of defendant Busch.

II.

Dressler's disagreement with the trial court's inst ruction is twofold. She argues 1) that the court erroneous ly included willful exaggeration in its charge on will ful falsification; and 2) that the court did not limit its willful exaggeration charge to material evidence, but, inst ead, allowed the jury to reject all of a witness's testi mony based upon any exaggeration, even if immaterial to the is sues in
the suit.

Our review of a trial court's jury instructions is plenary. Abrams v. Lightolier, Inc., 50 F.3d 1204, 1212 (3d Cir. 1995). When we assess jury instructions we must loo k at the totality of the charge given to the jury, not m erely a particular paragraph or sentence. See In re Braen, 900 F.2d 621, 626 (3d Cir. 1990) (citing United States v. Pi ccolo, 835 F.2d 517, 520 (3d Cir. 1987)). "We review jury inst ructions to determine whether, if taken as a whole, they pro perly apprised the jury of the issues and the applicable law." Tigg Corp. v. Dow Corning, Corp., 962 F.2d 1119, 1123 (3 d Cir. 1992) (citing Gutzan v. Altair Airlines, Inc., 766 F.2d 135, 138 (3d Cir. 1985)). "`The trial court should be re versed only if the instruction was capable of confusing an d thereby misleading the jury."' United States v. Rockwell, 7 81 F.2d 985, 991 (3d Cir. 1986) (quoting United States v. F ischbach and Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984) ).

Busch argues that the totality of the portion of th e charge set forth above properly informed the jury how to e valuate evidence. Busch cites our decision in Tigg to suppo rt its argument that the broad discretion that we afford t rial courts in wording jury instructions requires us to defer to

5the court's choice of language here. Appellee's Br. at 23;

Tigg, 962 F.2d at 1123-24.

In Tigg, plaintiff corporation sued the defendant corporation alleging breach of a requirements contr act for an industrial product that Tigg was to supply to de fendant. The jury returned a verdict for defendant, and plai ntiff appealed alleging numerous errors in the court's ju ry instructions. We reviewed the court's charge to det ermine if it properly submitted the issues to the jury, and p roperly explained the legal principles that would guide the jury's analysis of the evidence. We reversed the judgment as to damages because the court's charge gave the jury th e wrong test to use in determining damages. Here, des pite Busch's argument to the contrary, the court's instr uctions gave the jury the wrong test to apply in deciding i f a witness' testimony should be rejected in whole or i n part.

The terms "falsify" and "exaggerate" are not terms of art, consequently, their ordinary and plain meanings are sufficient to inform the jury. Webster's defines "f alsify" as: "to engage in misrepresentation or distortion." Web ster's Third New International Dictionary 820 (16th ed. 19 81). Accordingly, "falsify" suggests an intent to deceiv e or mislead. On the other hand, "exaggerate" is defined as: "to enlarge beyond bounds or the truth." Id. at 790. Accordingly, the term includes an exclamation that
overstates a fact or occurrence because of the exci tement of the moment rather than bad faith. Dressler suggests that that is exactly what may have happened here. She ar gues that the excitement of the event may have caused bo th her and her eyewitness, Mary Bellantoni, to overstate w hat occurred. Dressler argues that the jury should not have been authorized to reject the totality of either he r and Bellantoni's or any other witness' testimony based upon such an exaggeration, unless the exaggeration conce rned testimony that was material to issues of liability or damages.

Thus, testimony such as Bellantoni's statement that
Dressler went into shock or Dressler's statement th at she heard a "loud crack" did not justify rejecting all that either witness said because that testimony, even if exagge rated, was not relevant to the alleged negligent design of the steps

6where Dressler fell. Busch, on the other hand, atte mpts to

minimize any problem with the phrasing of the charg e, arguing that the charge applied to its witnesses as well as Dressler's. Busch suggests that, since both sides m ay have exaggerated, Dressler cannot show any prejudice. Ap pellee's Br. at 24. However, that is not the point. When the jury is not informed of the test to apply to testimony, we cannot presume an absence of prejudice. Connecticut Mutual Life Insurance Co. v. Wyman, 718 F.2d 63, 64 (3d Cir. 19 83).

Dressler argues that the standard jury charge of numerous jurisdictions that include what is known a s the falsus in uno, falsus in omnibus charge include an element of bad faith and materiality. Appellant's Br. at 11 -12. The falsus in omnibus instruction must clearly state th at the evidence in question must be material, "although . . . the word `material' need not be included if the essenti al meaning is conveyed by equivalent language." (footn ote omitted) 4 A.L.R. 2d 1077, S 10. As noted above, he re, the court told the jury:

If you believe that any witness has willfull y sworn falsely to any material fact of this case or willfully exaggerated any evidence in this case you ar e at liberty to disbelieve the testimony of that witness in whole or in part and believe it in part or disbelieve it in part, taking into consideration all of the facts a nd
circumstance of the case.

App. at 697-98. Thus, the jury could disbelieve a w itness if it concluded that a witness deliberately testified falsely as to a "material fact". There is nothing wrong with t his part of the equation as it is consistent with the longst anding principles of jury deliberation.2 However, the jury was also

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2. In United States v. Rockwell, 781 F.2d 985, 988 (3d Cir. 1986), we
concluded that the trial court's instruction "encro ached upon the prerogative of the jury to independently assess the credibility of witnesses," Id. at 991, when the court issued the s tandard falsus in
omnibus instruction and then followed it with an in struction on collateral
evidence. The court stated:

If you find that any witness testified false ly about any material fact, you may disregard all of his testimony, or y ou may accept such

7told that it could disbelieve a witness if the witn ess

exaggerated about any evidence. We have never held that an exaggeration, even if willful, regarding somethi ng that is immaterial to a jury's deliberation, could justify allowing a jury to reject the totality of a witness' testimony , nor has Busch provided us with any authority from any other jurisdiction that would support such a sweeping pri nciple

of law.

Busch attempts to seize upon Dressler's citation to Hawaii's Civil Jury Instruction No. 5.3 to argue th is novel principle. See Appellee's Br. at 22, n.4. Busch arg ues:

the model jury instructions from Hawaii, cit ed by plaintiff . . . are almost identical to thos e given by the trial judge:

You may reject the testimony of a witness if youfind . . . that: 1) the witness intentionally tes tified falsely . . . about any important fact; or 2) the w itness

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parts of it as you wish to accept and exclud ed such parts of it as you wish to exclude . . . . It is not necess ary in deciding this

case to decide the issue of credibility between Mr. Foster and Mr. Weber.
That issue is collateral to the main issue h ere.

Id. at 988. We thought that this instruction asked "the jury to reject or accept in whole or in part the testimony of a witne ss only if the witness
had lied on a material issue. If a witness had not testified falsely about a material issue, the jury may have inferred that i t was bound to accept the whole of the witness' testimony." Id. at 991. F urther, we recalled our past approval of Professor Wigmore's words that "a person who would lie upon a collateral point is perhaps likely to be a m ore determined liar than one who dares it only upon a material point." Id. (quoting United States v. Rutkin, 189 F.2d 431, 439 (3d Cir. 1951) (internal citation omitted).

We consider Rockwell and Professor Wigmore's sage r emarks, however, inapposite to our discussion on willful exaggeratio n. Since, as has previously been stated, "to exaggerate" is not the same as "to falsify" we
do not think that Rockwell's admonition about the c ourt's charge as it
relates to willful falsification can be commuted to willful exaggeration. Indeed, since the act of exaggerating does not requ ire bad faith, a jury should not necessarily apply the same standard to a witness who exaggerates as to one who falsifies, if the testimo ny is irrelevant.

8intentionally exaggerated . . . an important fact . . . in

order to deceive or mislead you.

Id. (internal quotation marks omitted) (emphasis ad ded). However, the portions of Hawaii's instruction that we have underlined above clearly demonstrate the weakness i n Busch's position. Far from being "almost identical" to the charge the district court gave here, the emphasized portions of the instruction are quite different. That differ ence substantially undermines Busch's position. A jury i n Hawaii may disregard a witness who intentionally fa lsifies an important fact or who intentionally exaggerates an important fact. Clearly, a fact is only "important" if it is material. Here, the jury was told it could not reje ct the testimony of a witness who intentionally falsified testimony
unless the falsification went to a material fact. H owever, the jury was allowed to reject the testimony of a witne ss who willfully exaggerated any fact no matter how immate rial it may have been.

Moreover, that error was not harmless. There were n o witnesses to Dressler's purported fall other than B ellantoni and Dressler herself, both of whom testified in a m anner that may have been considered somewhat exaggerated. In addition, no report of the accident was filed, as D ressler testified that she could not find any employee to a ssist her after her fall. Furthermore, Busch presented the te stimony of an expert witness who testified that Dressler co uld not have slipped on the steps and fallen backward facin g the pool as she testified. Thus, jurors had to decide w hether or not they believed that Dressler had sustained her b urden of establishing that she fell at defendant's amusement park in the first place before deciding any issues of negli gence or liability. We cannot ignore the possibility that th e jury may have improperly rejected the only testimony that co uld have
established that Dressler fell.

Nor, are we persuaded to the contrary by Busch's reliance upon the rule that we must look at a charg e in its entirety. Busch argues that, even if the challenged portion of the charge is problematic, the charge overall co rrectly informed the jurors of how to assess testimony, and when they could reject it. See Appellee's Br. at 20. We agree that much of what the court instructed, as set forth abo ve, is a

9correct statement of the law and was properly inclu ded in

the judge's charge. However, we cannot agree that t he failure to inform the jury that an exaggeration mus t be material was remedied by the remainder of the charg e. Although the court's instructions are fairly exhaus tive and largely correct, we cannot cast a blind eye on the court's clear misstatement regarding willful exaggeration. More importantly, we cannot expect the jury to do so. We cannot assume that the jury will have the wherewithal to h eed that part of the instruction that is accurate and disreg ard that which is not. Rather, we must assume that if the ju rors are provided instructions that are partly flawed they m ay well choose the flawed part to inform their duties asfin ders of fact. Connecticut Mutual, 718 F.2d at 64. ("If the jury was misled as to the law on a material point, `we canno t presume that the jury applied the appropriate stand ard in deciding [an issue]' ").

Similarly, the deference that we give to the langua ge trial courts use in charging a jury does not further Busc h's position. The problem here is not, as Busch argues, the court's exercise of discretion to express the neces sary principles and concepts in the language it deems mo st appropriate. Rather, the problem here is that the l anguage the court did use allowed the jury to reject the te stimony of a witness for reasons that may have been immaterial to a proper evaluation of the evidence. Deference to the language of a jury charge does not immunize jury instructions when they fail to advise, or misadvise , a jury of concepts it needs to know to properly discharge its duties.

Thus, we hold that the district court erred in allo wing jurors to reject part or all of a witness' testimon y merely because of a willful exaggeration of a circumstance that was not material to Busch's negligence, or any damages
Dressler sustained.

III.

For the foregoing reasons, we reverse the judgment and
order of the district court and remand for a new tr ial.

10A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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