Plaintiff contends - trial court erred by sustaining defendant's
That the trial court erred by sustaining defendant's hearsay
objection to testimony proffered by Dr. Kent Westbrook, one of
plaintiff's experts, on recent cases of oral cancer among young
people who dip snuff.
Dr. Westbrook was called by plaintiff in her case-in-chief and
again in rebuttal to testify on the issue of causation.
Dr. Westbrook Testimony - the use of snuff is a cause of oral
Testimony based on experience
Dr. Westbrook expressed his opinion that, in general, the use of
snuff is a cause of oral cancer.
Testimony based on review of Seans case history
He also expressed the opinion that Sean Marsee's cancer of the
tongue was caused by use of defendant's snuff products.
The former opinion was based on Dr. Westbrook's experience in
treating oral cancer patients and on his review of the
literature on oral cancer.
The latter opinion was based on his review of Sean Marsee's case
Was aware of other patients who had used snuff
Dr. Westbrook testified as follows that he was aware of other
young oral cancer patients who had used snuff:
"Q. . . . Do you have any knowledge that would be relied upon
generally by people in your field of recent cases of oral cancer
in young people who are snuff dippers?
"A. There are some cases that I have talked to doctors about
that appear to be oral cancers associated with snuff dipping.
These are cases that [plaintiff's counsel] gave me the name of
the doctor. I called the doctor and talked with them about the
Trial Court - Sustained Objection
Following this exchange, the trial court sustained defendant's
hearsay objection to any further testimony by Dr. Westbrook on
the details of these conversations.
Did not exclude awareness
The trial court did not strike the testimony of Dr. Westbrook
that he was aware of other oral cancer cases among young snuff
Excluded detail about specific cases
It simply excluded the details of what he had been told over the
telephone about these cases
Fed. R. Evid. 705
Permits inquiry on cross-examination into the facts underlying
an expert's opinion even if those facts would be otherwise
Substance was admitted
The substance of Dr. Westbrook's telephone conversations was
admitted into evidence.
Jury head the doctor say he was aware
The jury thus heard the doctor testify that he was aware of
other cases of oral cancer among young people who chewed
Detail descriptions were excluded
Only the detailed descriptions of these cases were excluded.
He did not testify the cases played any role in the formulation
of his opinion
Further, a careful review of Dr. Westbrook's testimony reveals
that at no time during his lengthy direct and
cross-examinations, when his opinions and their bases were
extensively explored, did he testify that these cases played any
role in the formulation of his opinions.
Only on redirect when cases were ONLY mentioned
It was only on redirect that Dr. Westbrook mentioned these
cases, and even then he did not state that they played a part in
forming his opinions.
The Pl is not affected, since the doctor did not actually
CONNECT the cases to his specific OPINION
While it can be surmised that these cases helped to reinforce
those opinions, the fact that Dr. Westbrook did not mention them
in connection with any specific opinion precludes any finding
that the trial court's ruling affected a substantial part of