Billi Johnson

Issue II.

The statements from Billi Johnson are inadmissible under Fed R. Evid. 703, 602, 701 and 702.

Rule 701. Opinion testimony by lay witnesses. —(a) Generally.—If a witness is not testifying as an expert, the witness\'s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and, (2) helpful to a clear understanding of the witness\'s testimony or the determination of a fact in issue.

As a condition to admitting lay opinions on insanity or another\'s illness, courts have required a factual foundation. Gibson v. Gibson, 17 Tenn. 329 (1836); Norton v. Moore, 40 Tenn. 480 (1859). In Gibson v. Gibson; Physicians may state their opinion of the soundness of a testators mind, but they must state the circumstances or symptoms, from which they draw their conclusions.

Rule 702. Testimony by experts. —If scientific, technical, or other specialized knowledge will substantially 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 in the form of an opinion or otherwise.

In McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (1997), the Tennessee Supreme Court listed five nonexclusive factors taken from the federal case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993):
“(1) whether scientific evidence has been tested and the methodology with which it has been tested;
“(2) whether the evidence has been subjected to peer review or publication;
“(3) whether a potential rate of error is known;
“(4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and
“(5) whether the expert’s research in the field has been conducted independent of litigation.”

Rule 703. Bases of opinion testimony by experts. —The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

New Jersey Zinc Co. v. Cole, 532 S.W.2d 246 (Tenn. 1975), allows a Treating Doctor to base an opinion on reports of other professionals. If the bases of expert testimony are not independently admissible, the trial judge should either prohibit the jury from hearing the foundation testimony or should deliver a cautionary instruction.

Rule 602. Lack of personal knowledge. —A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness\'s own testimony. This rule is subject to the provisions of Rule 703 relating to opinion testimony by expert witnesses. Basic to relevancy concepts is that a witness must know about the subject matter of testimony. This is the familiar requirement of first-hand knowledge.

Issue IV. The plaintiff is at fault also to the issue.

In McIntyre v. Balentine, Plaintiff brought neglignece action against the defendant-Balentine. Defendants answered that Plaintiff was contributorially negligent, in part due to operating his vehicle while intoxicated. After trail, the jury returned a verdict stating: “We, the jure, find the plintiffand the defendant equally at fault in this accident. Tennessee Jurispudence states assumption of risk, which is called now, compartive negligence, as three elements (1) knowledge of the danger, (2) an appreciation of that danger, and (3) voluntary exposure to that danger. The distinction between asumption of the risk and contiburtory negligence is that the elements of assumption of the riskare actual knowledge of the danger and intelligent aquiescence in it, while contributory negligence is a matter of some fault or departure from the stand aof reasonable conduct.