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
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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:
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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.
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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.
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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
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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
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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
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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.
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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."
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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
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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)). ______ ______
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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:
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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."
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not think its admission was particularly prejudicial. We discern
no violation of due process.
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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."
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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
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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. ________
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