Elcock v. Kmart Corp

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

10-10-2000

Elcock v. Kmart Corp
Precedential or Non-Precedential:

Docket 98-7472

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Filed October 10, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-7472

CARMELITA ELCOCK

v.

KMART CORPORATION, Appellant

On Appeal From the District Court
of the Virgin Islands
(D.C. Civ. No. 1996/28 F)
District Judge: Honorable Raymond L. Finch, Chief Judge

Argued: December 7, 1999

Before: BECKER, Chief Judge, SCIRICA and GARTH,
Circuit Judges.

(Filed October 10, 2000)

ANDREW C. SIMPSON, ESQUIRE
(ARGUED)
Bryant, Barnes & Simpson, P.C.
47 King Street, 2nd Floor
Christiansted, St. Croix
USVI 00820

Counsel for Appellant
 LEE J. ROHN, ESQUIRE
MAURICE CUSICK, ESQUIRE
K. GLENDA CAMERON, ESQUIRE
(ARGUED)
Law Office of Lee J. Rohn
1101 King Street, Suite 2
Christiansted, St. Croix
USVI 00820

Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by defendant Kmart from a judgment
entered on a $650,000 jury verdict in favor of plaintiff
Carmelita Elcock ("Elcock") for personal injuries and
economic loss that she suffered as the result of a slip and
fall at a Kmart store in Frederiksted, U.S. Virgin Islands.
Kmart concedes its liability and acknowledges that Elcock's
fall caused her some quantum of harm. However, Kmart
challenges several evidentiary rulings that relate to the
proof of Elcock's damages, and contends that the $650,000
award, which consisted of $300,000 for pain and suffering
and $350,000 for loss of future earnings and earning
capacity, was excessive.

The most important questions on appeal relate to the
testimony of Dr. Chester Copemann, who was proffered by
Elcock, inter alia, as an expert in vocational rehabilitation,
and whose vocational rehabilitation presentation
substantially informed the large award for loss of future
earnings and earning capacity. We conclude that there
should have been a Daubert hearing prior to the receipt of
Copemann's testimony, and that because there was no
such hearing, his testimony cannot stand. In the course of
reaching this conclusion, we decide that the District Court
did not abuse its discretion either in qualifying Copemann
as an expert or in limiting the scope of cross-examination
concerning Copemann's prior acts of criminal misconduct.
With respect to the testimony of Dr. Bernard Pettingill, an

2
economist put on by Elcock to assess her lost future
earnings, we conclude that his opinion should have been
excluded because his economic model relied on
assumptions wholly without foundation in the record. In
the absence of the testimony of these two critical witnesses,
and given the inability of Elcock's other witnesses to act as
surrogates therefor, the economic loss portion of the jury
verdict, which rests on this inadmissible evidence, must be
set aside, and a new trial granted.

Kmart also submits that both the economic and non-
economic portions of the jury award were excessive and
thus should be remitted. We do not reach Kmart's
remittitur arguments. Because we find that the jury's
tainted economic damage award was not clearly distinct
and separate from the non-economic portion of its damage
verdict, a new trial must be had on all aspects of the
damage award. We do, however, for the guidance of the
District Court on remand, reject Kmart's contention that
Elcock failed to present sufficient evidence to show that her
damages, particularly her permanent injuries, were caused
by her slip and fall, as we are satisfied that there is
sufficient evidence in the record to support such a finding.
We thus affirm in part, vacate in part, and remand for a
new trial on the issue of damages.

I. Facts and Procedural History

On August 12, 1995, Elcock and her husband went to
the Frederiksted Kmart to purchase mints. While shopping,
Elcock slipped and fell on a waxy substance that had built
up on the floor. Elcock reported her fall to customer
service, and a Kmart employee placed her in a wheelchair.
Elcock told Kmart representatives that she had injured her
back and right leg and was in excruciating pain. Kmart
offered her the opportunity to visit a physician of her choice
at its expense, but informed her that it would pay for only
one visit.

Elcock declined the offer and visited her own doctor, Dr.
Arakere B. Prasad. Prasad diagnosed her as suffering from
a lumbar sprain. Because Elcock complained of low back
pain and cramps in her right leg, Prasad prescribed

3
painkillers for her. Elcock, however, never used the
prescription. Prasad stated that Elcock's back and leg
injuries would interfere with her flexibility and cause her
pain, and that her injury was "an ongoing thing. It may be
forever."

Elcock sought a second opinion from an orthopedist, Dr.
Claudius Henry. During her initial visit, four days after the
slip and fall, Henry also diagnosed Elcock with a low back
sprain. He found limitation in Elcock's range of motion, as
well as tenderness and irritation in her right leg and back
"in the right LV-3 which is lumbar third to LV-1 which is
the paraspinal along the spine on the right side." He
considered both symptoms to be indicative of nerve root
irritation arising out of an injury to muscles, ligaments,
and the outer portion of the disc area in Elcock's back.
Henry prescribed physical therapy, x-rays, and an anti-
inflammatory drug, and recommended that Elcock limit her
physical activity. The x-rays revealed that she had"minimal
spurring [i.e., the accretion of calcium deposits in] the
anterior portion of the vertebral bodies of the lower back."
In Henry's opinion, this preexisting condition made her
more susceptible to suffering a low-back sprain when she
slipped and fell.

During a second visit, Henry diagnosed Elcock with
resolving post-traumatic radiculopathy. Radiculopathy is
often caused by a herniated intervertebral disc. Henry
noted that Elcock suffered pain and nerve irritation, and
complained of a limited range of motion in her back and
right leg. He described these injuries as "chronic," meaning
that they could "exist off and on for an indefinite period,"
possibly for the rest of Elcock's life. The two visits with
Henry took place over a span of seven months. During this
time and in the months thereafter, Elcock also saw a Dr.
Ali once a month; Ali had been treating her for an unrelated
diabetes condition. As evidenced by Ali's notes, Elcock
never made any mention of her back and leg pain to him.

Elcock claimed that the injuries she received as a result
of the fall profoundly impacted her life. At the time of the
accident, Elcock was fifty-one years old and self-employed
as a salesperson for Mary Kay Cosmetics. Elcock contended
that she suffered extreme and uninterrupted physical pain,

4
as well as depression that often caused her to cry until her
eyes became swollen. She reasoned that this depression
arose in large part from the fact that her debilitating
injuries affected other aspects of her life. Elcock testified
that she had lost most of her Mary Kay business, and that,
as a result, her income fell from the $5,744 she earned in
1995 to $1,070 in 1996. Mary Kay sells its products
through a force of salespeople organized in a pyramid
structure. The salespeople earn commissions and prizes on
their sales and the sales of those they recruit into their
personal pyramids. Elcock was thus not only responsible
for selling Mary Kay's products, but for recruiting and
maintaining a subordinate sales force. She stated that her
injuries interfered with her ability to perform all of these
functions.

Seventeen months after the slip and fall, Elcock visited
Dr. Sylvia Payne, a San Juan-based specialist in physical
medicine and rehabilitation, so that Payne might give an
opinion as to Elcock's medical condition in relation to the
fall for purposes of this litigation. Payne found that Elcock
suffered from lumbar myositis (inflammation of the lower
back muscles, characterized by pain, tenderness, and
sometimes spasms in the affected area) and from two
"trigger points" in the gluteus maximus muscle. Trigger
points, according to Payne, are "very tiny point[s] in the
muscle believed to be part of a muscle spindle that is firing
constantly and causing pain at the sight [sic] and causing
pain in another area not anatomically related." Payne
testified that the trigger points were responsible for the pain
Elcock felt radiating down her right leg to her knee. Payne
also concluded that Elcock's "pain was severe and it
interfered with several of her activities," that Elcock would
be in pain for the rest of her life because of her fall, and
that the injuries resulting from the fall were permanently
disabling.

Elcock was also referred to Copemann, a psychologist
and purported expert in vocational rehabilitation. A
vocational rehabilitationist assesses the extent of an
individual's disability, evaluates how the disability affects
the individual's employment opportunities, and assists the
individual's re-entry into the labor market. Copemann

5
examined Elcock for the purposes of this litigation, but also
treated her for her chronic pain. As part of his examination,
he diagnosed Elcock's psychological condition and
evaluated her lost earning capacity in light of her physical
and psychological disabilities. Copemann concluded that
Elcock suffered from depression, pain disorder, and
adjustment disorder with anxiety, and opined that these
symptoms were caused by her slip and fall and the physical
injuries that arose therefrom. Copemann also concluded
that Elcock's psychological condition was improving and
was not permanent. Based on his assessment of Elcock's
psychological condition, the extent of her physical injuries,
relevant employment factors, and the results of diagnostic
tests he had performed, Copemann opined that Elcock was
between 50 and 60 percent vocationally disabled and that
this disability was permanent.

Except for Ali, all of the doctors mentioned above testified
at Elcock's four-day jury trial, as did Elcock and her
husband. Elcock also offered the testimony of Pettingill,
who gave an expert opinion as to Elcock's lost earning
capacity. The jury found for Elcock on all elements of her
tort claim and awarded her $650,000 in damages:
$350,000 for her economic injuries, and $300,000 for her
pain and suffering. Kmart moved for judgment as a matter
of law, for a new trial, or alternatively, for a remittitur. The
District Court denied the motion for judgment as a matter
of law and for a new trial, but did remit the pain and
suffering award to $115,000. Upon Elcock's motion for
reconsideration, however, the Court vacated the remittitur
and reinstated the jury's damage award. The District Court
had jurisdiction under 28 U.S.C. S 1332. We have appellate
jurisdiction pursuant to 28 U.S.C. S 1291.

II. The Evidentiary Issues Relating to Copemann's
Qualifications

Before trial and again during trial, Kmart sought to
exclude Copemann's vocational rehabilitation testimony on
the grounds that he was not qualified as an expert in the
field. The District Court conducted a voir dire on
Copemann's qualifications, during which Copemann
testified regarding his credentials, and Kmart's vocational

6
rehabilitation expert gave testimony that called those
credentials into question. The District Court considered the
qualifications issue raised by Kmart a "close call," but
ultimately found that Copemann was qualified to testify
about vocational rehabilitation.1 Kmart challenges this
decision. We review the District Court's decision to qualify
Copemann for abuse of discretion. See Waldorf v. Shuta,
142 F.3d 601, 627 (3d Cir. 1998).

A.

Federal Rule of Evidence 702, rescribed in the margin,
governs the use of expert testimony in the federal courts.2
As explained in In re Paoli R.R. Yard PCB Litig. , 35 F.3d 717
(3d Cir. 1994) (hereinafter "Paoli II"), Rule 702 embodies
three distinct substantive restrictions on the admission of
expert testimony: qualifications, reliability, andfit. See id.
at 741-43. Before an expert witness may offer an opinion
pursuant to Rule 702, he must first be qualified by virtue
of specialized expertise. See id. at 741. In Waldorf v. Shuta,
142 F.3d 601 (3d Cir. 1998), we articulated the standard
for qualifying an expert:

Rule 702 requires the witness to have "specialized
knowledge" regarding the area of testimony. The basis
of this specialized knowledge "can be practical
experience as well as academic training and
credentials." We have interpreted the specialized
knowledge requirement liberally, and have stated that
this policy of liberal admissibility of expert testimony
_________________________________________________________________

1. Copemann also testified about the physical and psychological harm
that Elcock suffered as a result of her slip and fall. In light of the
fact
that Copemann is a formally trained and experienced psychologist,
Kmart does not challenge his qualifications to render this opinion.

2. The Rule provides that

[i]f 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.

Fed. R. Evid. 702.

7
 "extends to the substantive as well as the formal
qualification of experts." However, "at a minimum, a
proffered expert witness . . . must possess skill or
knowledge greater than the average layman. . . ."

Id. at 625 (citations omitted).

Even under the liberal standard described in Waldorf,
Copemann's qualifications as a vocational rehabilitationist
are thin. In contending that Copemann possessed skill or
knowledge "greater than the average layman," Elcock
focuses primarily on Copemann's experience. Specifically,
Elcock points to (1) Copemann's general training in
"assessing" individuals, which he received while earning his
Ph.D. in psychology; (2) his experience, twenty years
previous, helping drug addicts reenter the workforce; (3) his
experience primarily in the last two years dealing with the
Virgin Islands Division of Workers' Compensation, which he
had advised regarding the ability of approximatelyfifty to
sixty-five disabled employees to return to their previous
jobs; (4) his past experience as an expert witness making
lost earning capacity assessments; (5) his attendance at two
seminars regarding vocational rehabilitation, and his stated
familiarity with the literature in the area; (6) his
membership in two vocational rehabilitation organizations,
both of which place no restrictions on membership; and (7)
the fact that when Copemann was in school, a degree in
vocational rehabilitation therapy was not available, but that
he received similar training nonetheless. This last fact,
Elcock argues, explains why Copemann did not possess the
degrees or formal training one would ordinarily associate
with an expert.

In response, Kmart emphasizes several factors that
significantly undermine Copemann's purported
qualifications. First, during Kmart's voir dire, Copemann
admitted that he had neither the academic training nor the
standard credentials that would ordinarily qualify one as an
expert in vocational rehabilitation. Moreover, Kmart argues
that nothing prevented Copemann from either receiving
formal training in vocational rehabilitation after he left
school or from earning a related degree or certificate while
he was in school. Second, Copemann conceded that his
experience dealing with the workers' compensation board

8
consisted primarily of diagnosing whether patients were so
disabled that they could not return to a particular job; this
experience did not include assessing what range of jobs
those injured individuals were capable of performing. Third,
Kmart adduced evidence suggesting that not only was
Copemann's experience as a counselor for drug addicts
dated, but that it did not include performing assessments
of which jobs the recovered addicts would be able to
perform. Fourth, although Copemann maintained that there
was no difference between a psychologist and a vocational
rehabilitationist, Kmart's vocational rehabilitation therapist
testified that despite a common psychological diagnostic
component in both jobs, the vocational rehabilitationist's
expertise entails a distinct speciality: the capacity to
"translate" psychological and physical impairments into the
"ability to work, earn income, [and] get a job . . . ."3

Kmart's forceful argument all but persuaded the District
Court. Given Copemann's lack of credentials and limited
experience, the District Court twice expressed its reluctance
to qualify Copemann as an expert in vocational
rehabilitation. However, after two attempts by Elcock's
counsel to qualify him, the Court eventually admitted
Copemann's testimony. The Court relied heavily on the fact
that a formal degree in vocational rehabilitation therapy
was not available when Copemann attended school, and the
fact that the training of psychologists was functionally
similar to that of vocational rehabilitationists at the time.
The Court also relied on Copemann's practical experience
evaluating the ability of injured employees to return to
work.
_________________________________________________________________

3. In support of this latter point Kmart cites Terry v. Mathews, 427 F.
Supp. 464 (E.D. Pa. 1976), in which the district court remanded an
administrative law judge's ("ALJ") decision to deny a social security
claimant benefits because the ALJ gave great weight to the vocational
rehabilitation opinion of a trained psychologist with "some limited
experience in occupational therapy and counseling." Id. at 466. The
district court reasoned that "the issue here is not a psychological one.
Rather it is a question of expertise in the vocational field. . . . [I]n
light
of [the expert's] qualifications as a psychologist, as opposed to any
qualifications as a vocational expert, [the heavy weight given the
expert's
testimony] is impermissible." Id.

9
B.

This court has had, for some time, a generally liberal
standard of qualifying experts. See, e.g., Paoli II, 35 F.3d at
741; Hammond v. International Harvester Co., 691 F.2d
646, 652-53 (3d Cir. 1982); Knight v. Otis Elevator Co., 596
F.2d 84, 87-88 (3d Cir. 1979). However, we have also set a
floor with respect to an expert witness's qualifications. For
example, in Aloe Coal Co. v. Clark Equipment Co. , 816 F.2d
110 (3d Cir. 1987), we held that a district court abused its
discretion in allowing a tractor sales representative to
testify as an expert regarding the cause of a tractor fire. See
id. at 114. In making this determination we stated:

Drewnoski [the expert witness] was not an engineer. He
had no experience in designing construction
machinery. He had no knowledge or experience in
determining the cause of equipment fire. He had no
training as a mechanic. He had never operated
construction machinery in the course of business. He
was a salesman, who at times prepared damage
estimates.

Id. (citations omitted); see also Waldorf, 142 F.3d at 625
("Even though we apply Rule 702 liberally, we have not
pursued a policy of qualifying any proffered witness as an
expert.").

Our decision in Waldorf provides guidance for our
assessment of Copemann's qualifications. In Waldorf, the
district court qualified an expert with credentials similar to
Copemann's, and we affirmed that decision on appeal:

The district court qualified Rizzo [the putative expert]
to testify as a vocational expert in spite of his lack of
any formal training in that field, and notwithstanding
that his educational training culminated in a master's
degree in sociology and social organization from
Rutgers University in 1973. . . .

. . . In 1991, he became involved in the Council's
administration of a million dollar loan pool to assist
disabled New Jersey residents in starting their own
businesses. In that capacity, Rizzo evaluated the
capacity of disabled individuals to accomplish specific

10
 employment opportunities. Rizzo also testified that,
through the course of his employment, he became
familiar with studies on the work that quadriplegics
can perform. Furthermore in his job experience, Rizzo
utilized the New Jersey Department of Labor Statistics
and the New Jersey Job Listing Book, which indicate
employment opportunities available in various job
categories in New Jersey. Thus, based on his
experience and his familiarity with the literature in the
field, the district court held that Rizzo was qualified
properly as a vocational expert. The court said that
"[w]hile his formal credentials may be a little thin, he
certainly had sufficient substantive qualifications to be
considered an expert under the liberal standard of Rule
702.

Id. at 626 (citations omitted).

What drove the Waldorf panel's decision to affirm on this
issue was not the impressiveness of Rizzo's credentials or
experience, but the standard of review governing our review
of Rule 702 qualification rulings:

Waldorf has a heavy burden in challenging this
decision because, absent an abuse of discretion, we
will not substitute our own judgment for that of the
trial court regarding the admission or exclusion of
expert testimony. Of course, an abuse of discretion
means much more than that the appellate court
disagrees with the trial court. Rather, a trial court's
determination whether to admit or exclude expert
testimony will be upheld "unless manifestly erroneous."

. . . Even though Rizzo did not possess formal
academic training in the area of vocational
rehabilitation, he did have experience in the field
through his employment at the Developmental
Disabilities Council in attempting to provide jobs for
disabled individuals. During this time, Rizzo also
became familiar with the relevant literature in thefield.
Even if his qualifications are, as the district court
described, "a little thin," he has substantially more
knowledge than an average lay person regarding
employment opportunities for disabled individuals. In

11
 the circumstances, we cannot say that the district
court abused its discretion in determining that Rizzo
possessed the minimum qualifications necessary to
testify as an expert.

Id. at 626-27 (citations omitted).

Copemann, like Rizzo, has no formal training in
vocational rehabilitation and Elcock must therefore rely on
Copemann's practical experience to demonstrate that he
"possessed the minimum qualifications necessary to testify
as an expert." Id. at 627. In support of Copemann's
qualifications, Elcock points to Copemann's experience in
helping drug addicts return to employment and to his work
with the Virgin Islands Division of Workers' Compensation.
Based on this background, one can presume that
Copemann has learned about the difficulties disabled
individuals face in employment, and has accumulated some
experience in evaluating whether they can return to a
particular job. Nonetheless, the most fundamental problem
with Copemann's experience in this area is that he seems
most qualified to testify on a micro-level regarding the
ability of a disabled individual to return to a specific job; he
does not appear particularly qualified to testify on the
macro-level regarding the number of jobs in the national or
local economy that the disabled individual is able to
perform.

On the other hand, Copemann claims to have kept
abreast of the relevant literature in his field, and to have
consulted the Dictionary of Occupational Titles, a standard
tool of the vocational rehabilitationist.4 In addition,
Copemann possesses a degree in a field tangentially related
to the one about which he testified, and he has also
attended conferences regarding vocational rehabilitation.
Finally, in the process of testifying as an expert in similar
matters, Copemann has no doubt performed his brand of
_________________________________________________________________

4. The DOT describes "the majority of occupations" in the economy, 1
U.S. Dep't of Labor, Dictionary of Occupational Titles iii (4th ed. 1991)
(Message from the Secretary of Labor), as well as the hazards
accompanying those jobs, see, e.g., Adorno v. Shalala, 40 F.3d 43, 47 (3d
Cir. 1994), and is often used by vocational rehabilitationists to assess
what jobs are available to disabled employees.

12
vocational rehabilitation assessments.5 Though his efforts
in this regard are not grounded in formal training, when
taken together with his review of the literature in the field
and his attendance at conferences, we must acknowledge
that he has "substantially more knowledge than an average
lay person regarding employment opportunities for disabled
individuals." Id. at 627.

We consider Waldorf to be at the outer limit of this
court's generally liberal approach to reviewing the
qualifications of experts. We also suspect that, had the
district court in Waldorf ruled the witness unqualified, the
panel would have affirmed. While Copemann seems but
marginally qualified to perform a vocational rehabilitation
assessment, and a district judge would be free to decline to
qualify him, we recognize that Copemann's qualifications
fall within Waldorf's outer bounds. Despite misgivings,
because we are not prepared to say that the District Court,
acting "on the spot" and exercising considerable care in its
approach to this question, abused its discretion, we will
affirm the Court's decision to qualify Copemann as an
expert. We note, however, that the marginal nature of
Copemann's qualifications does enter into the Daubert
calculus, to which we now turn.

III. The Daubert Reliability of Copemann's Testimony

During trial and again on appeal, Kmart sought to
exclude Copemann's testimony on the ground that his
methodology for rendering vocational disability assessments
was unreliable. Kmart repeatedly requested that the District
Court conduct a Daubert hearing regarding Copemann's
methods as a vocational rehabilitationist. The District Court
_________________________________________________________________

5. We note that the mere fact that Copemann was previously admitted as
an expert witness qualified to give testimony on vocational rehabilitation
is irrelevant to the determination whether he is qualified to give such
testimony in this case. See Thomas J. Kline, Inc. v. Lorillard, Inc., 878
F.2d 791, 800 (4th Cir. 1989) ("[I]t would be absurd to conclude that one
can become an expert simply by accumulating experience in testifying.").
Moreover, while any expertise he may have gained in performing
vocational rehabilitation assessments in these cases would be relevant,
the crucible of litigation makes for a poor classroom.

13
denied this request, stating that it "didn't look at"
Copemann's vocational rehabilitation opinion "as a Daubert
issue." Although we hold that the District Court erred in
not granting a Daubert hearing, we acknowledge that the
Court's refusal to do so is understandable, as the Court's
decision was rendered before the Supreme Court's opinion
in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999),
extended the rigorous gatekeeping function assigned to trial
judges by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), to cases involving non-scientific testimony.
See Kumho, 526 U.S. at 141.

A.

In Daubert, the Supreme Court directed district court
judges to perform a screening function, to insure that
evidence presented by expert witnesses is relevant, reliable,
and helpful to the jury's evaluation of such evidence. See
Daubert, 509 U.S. at 597. Our precedent initially limited
Daubert's command to cases involving scientific testimony.
For instance, in In re Unisys Savings Plan Litigation, 173
F.3d 145, 157 (3d Cir. 1999), cert. denied sub nom.,
Meinhardt v. Unisys Corp., 120 S. Ct. 372 (1999), we stated
that non-scientific testimony (such as Copemann's)"does
not fall within the scope of scientific testimony, and
accordingly, it should not be tested by the particular
standards required for testimony based on a particular
scientific ethic." Id. at 157. It was not until Kumho Tire that
the Supreme Court made clear that Daubert's gatekeeping
obligation covered not only scientific, but also non-
scientific, testimony. See Kumho Tire, 526 U.S. at 151
(rejecting the "Eleventh Circuit's holding that a trial judge
may ask questions of the sort Daubert mentioned only
where an expert `relies on the application of scientific
principles,' but not where an expert relies `on skill- or
experience-based observation' ") (citation omitted).

Although we would ordinarily review a district court's
application of Rule 702, as well as the decision whether to
grant a Daubert hearing, for abuse of discretion, see Kumho
Tire, 526 U.S. at 142, 152, our standard of review is
somewhat different in this case. Because we are evaluating
the District Court's legal interpretation of a federal rule, our

14
review is plenary. See In re Paoli R.R. Yard PCB Litigation,
No. 99-1692, 2000 WL 1137475, at *6 (3d Cir. Aug. 10,
2000). As will appear, a review of Copemann's vocational
rehabilitation testimony demonstrates the significant
reliability questions raised by his methodology and compels
the conclusion that a Daubert hearing would have
permitted a fuller assessment of Copemann's analytical
processes and thus was a necessary predicate for a proper
determination as to the reliability of Copemann's methods.
See Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417-18 (3d
Cir. 1999) (holding that the district court abused its
discretion in excluding an expert's opinion without
conducting an in limine hearing focused on the Daubert
reliability of his testimony). "When a [district] court . . .
misapprehends [the] bounds" of a federal rule, "it abuses its
discretion." Id. (citing Koon v. United States, 518 U.S. 81,
100 (1996)); cf. Kumho Tire, 526 U.S. at 159 (Scalia, J.,
concurring) ("Though, as the Court makes clear today, the
Daubert factors are not holy writ, in a particular case the
failure to apply one or another of them may be
unreasonable, and hence an abuse of discretion."). In
fairness, we note that, because he was without the benefit
of Kumho Tire, the District Judge understandably
misapprehended the bounds of Rule 702's gatekeeping
requirement. Kumho Tire, however, must be applied.

B.

An expert's opinion is reliable if it is " `based on the
`methods and procedures of science' rather than on
`subjective belief or unsupported speculation'; the expert
must have `good grounds' for his or her belief." Paoli II, 35
F.3d at 742 (quoting Daubert, 509 U.S. at 589). In cases
involving scientific testimony, "[the] inquiry into the
reliability of scientific evidence . . . requires a determination
as to its scientific validity." Id. (citation omitted).

"Daubert suggests several factors that a district court
should take into account in evaluating whether a particular
scientific methodology is reliable . . . ." Id. The factors that
Daubert and this Court have already declared important
include:

15
 (1) whether a method consists of a testable hypothesis;
(2) whether the method has been subject to peer
review; (3) the known or potential rate of error; (4) the
existence and maintenance of standards controlling the
technique's operation; (5) whether the method is
generally accepted; (6) the relationship of the technique
to methods which have been established to be reliable;
(7) the qualifications of the expert witness testifying
based on the methodology; and (8) the non-judicial
uses to which the method has been put.

Id. at 742 n.8 (citing Daubert and United States v. Downing,
753 F.2d 1224, 1238-41 (3d Cir. 1985), as the source of
those non-exclusive factors). We will henceforth refer to
these factors as the Daubert factors.

Kumho Tire makes clear that this list is non-exclusive
and that each factor need not be applied in every case. As
noted above, it also resolves the question whether these
same factors should be applied when testing the reliability
of a non-scientific method:

Daubert's gatekeeping requirement. . . . make[s] certain
that an expert, whether basing testimony upon
professional studies or personal experience, employs in
the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field. . . . [T]he trial judge must have considerable
leeway in deciding in a particular case how to go about
determining whether particular expert testimony is
reliable. That is to say, a trial court should consider
the specific factors identified in Daubert where they are
reasonable measures of the reliability of expert
testimony.

Kumho Tire, 526 U.S. at 152; see also id. at 158-59 (Scalia,
J., concurring) ("I join the opinion of the Court, which
makes clear that the discretion it endorses--trial-court
discretion in choosing the manner of testing expert
reliability--is not discretion to abandon the gatekeeping
function.").

Kmart accepts that vocational rehabilitation expertise
flows from a valid non-scientific method; it disputes,
however, the reliability of Copemann's particular

16
methodology. Kmart points to a number of instances in
which application of the Daubert factors would weigh
against the reliability of Copemann's methods.

1.

Kmart first contends that Copemann's method can be
described, in essence, as an idiosyncratic or subjective
judgment in which the result can neither be duplicated nor
tested for validity (implicating by rough analogy, and for
reasons explained below in this Section, the first and fourth
Daubert factors, see Paoli II, 35 F.3d at 742 n.8). Given the
lack of a Daubert hearing, we must turn to Copemann's
trial testimony in order to identify and evaluate the
processes Copemann employed in making the disability
determination in Elcock's case. On direct examination,
Copemann described his method for arriving at the 50 to 60
percent disability opinion he rendered:

My vocational assessment consisted of testing Mrs.
Elcock for intelligence level achievement, that is school
level, getting a work history on her and then doing an
analysis of the Dictionary of Occupational Titles
aptitude testing on her, and then doing a search of the
Dictionary of Occupational Titles.

. . .

[In addition to a clinical interview,] I performed the
[Wechsler] Adult Intelligence Scale revised and she had
an IQ of 98 which is in the normal or average range.
And I also performed the wide range achievement test
revised which indicated that she had a reading level of
above 12th grade level, spelling level of beginning 10th
grade, and an arithmetic level of ending 6th grade.

. . .

Then I performed the aptitude testing on her, and I
think we need to, I need to explain the aptitude test.
Each job in the United States is categorized in this
Dictionary of Occupational Titles put out by the U.S.
Department of Labor and the characteristics of those
jobs. Those jobs are listed, characterized and listed for
each job, and every job has a set of aptitudes that tells

17
 you what is needed or what are needed in order to be
able to do those jobs. And there are tests that you can
give to determine what a person's aptitude are for
doing a particular job.

Copemann further testified that he also assessed which
jobs were available in the local job market by reviewing the
job listings his office receives weekly from the Virgin Islands
labor department, and by searching a database his office
creates of jobs listed in the local newspapers within the
prior two months. He then stated that he "took into
consideration [Elcock's] physical injuries and. . . her
psychological impairments," and, in sum, concluded that
he "rated [Elcock's] capacity after [he] had done all the
analysis as somewhere between 50 and 60 percent."

When asked by Elcock's counsel to describe his
methodology, Copemann testified as follows:

You take into comparison her education, her
intelligence, her aptitude, her previous work experience
and her medical injuries, what she says, she would like
to do, what her desires are as a person, her
temperaments, whether she likes working by herself or
she likes working with groups of people, whether she
likes working on detailed stuff or she doesn't like
working on detailed things because those are
important, and her limitations as she states them, not
only the medical findings but her limitations as she
states them. So when you take all of those things
together the closest I could come to it as a 50 to 60
percent disability.

. . .

[What that disability means] is that she is at a
disadvantage when she goes out into the labor market
because she's going to be competing with healthier
individuals and she's going to be competing with
[non-]impaired individuals.

On cross-examination, Kmart made several attempts to
have Copemann explain how he arrived at the 50 to 60
percent figure other than his ipse dixit statement that the
consideration of these factors produced these numbers.

18
Kmart pointed out that, before trial, Copemann had
diagnosed Elcock's disability at 50 to 75 percent, and asked
him to explain the discrepancy. Other than to state that his
initial "estimate was too broad," Copemann did not explain
why the range changed by 15 percent. Though Kmart might
have conducted a more thorough cross-examination of
Copemann on this point, a Daubert hearing would have
afforded a far greater opportunity to probe the particulars
of how Copemann arrived at specific disabilityfigures,
without running the risk of boring or "turning off " the jury.
Moreover, because Copemann never explained his method
in rigorous detail, it would have been nearly impossible for
Kmart's experts to repeat Copemann's apparently subjective
methods, or, in the nomenclature of Paoli II, to find that his
"method consists of a testable hypothesis" for which there
are "standards controlling the technique's operation." 35
F.3d at 742 n.8.

As suggested above, we can only roughly analogize to
these two Daubert factors when reviewing the non-scientific
evidence presented by Copemann. Vocational rehabilitation
is a social science that does not exactly mirror the
fundamental precepts of the so-called harder sciences.
However, the gist of the above Daubert factors are
nonetheless implicated in this case. Just as a scientist
would want to duplicate the outcome when evaluating a
colleague's claim that he had developed a technique for cold
fusion, a vocational rehabilitationist assessing Copemann's
disability determination would want to test the underlying
hypotheses and review the standards controlling the
technique's operation in an attempt to reproduce the
results originally generated.

If such testing did not generate consistent results,
Copemann's method would be exposed as unreliable
because it is subjective and unreproducible. Moreover,
without an inkling as to the standards controlling
Copemann's method--i.e., how he excludes for other
variables, such as Elcock's pre-existing injuries or job
limitations--an expert trying to reproduce Copemann's
methods would be lost. Because Elcock had neither the
need nor the opportunity to test Copemann's methods in
this manner, on the present record we conclude that the

19
first and fourth Daubert factors suggest that Copemann's
method was unreliable and therefore his opinion would not
"assist the trier of fact to understand the evidence or to
determine a fact in issue . . . ." Fed R. Evid. 702.

2.

Kmart's second argument is based on the fact that
Copemann admits that he employed an untested, novel
method for performing vocational rehabilitation
assessments that was based on an arbitrary admixture of
two widely used methods. This contention implicates the
fifth and sixth Daubert factors: "(5) whether the method is
generally accepted; [and] (6) the relationship of the
technique to methods which have been established to be
reliable . . . ." Paoli II, 35 F.3d at 742 n.8.

Given the absence of a full Daubert hearing, our exposure
to the mechanics of Copemann's admittedly unique
methodological approach to vocational disability
assessment is limited to the brief description Copemann
offered at trial. On cross examination, Kmart asked
Copemann to explain the basis of his method and how he
arrived at a disability rating of 50 to 60 percent. Copemann
testified as follows:

I use a combination of the procedure recommended
by Fields which is to look at level of preinjury access to
the labor market and post injury access and the
percentage and the difference between those
percentages Fields says is the loss of jobs or the lost
percentage.

I also looked at which is what I normally do at the
procedure recommended by Anthony Gamboa and he
suggests that you look at all the factors involved in the
client's analysis, injury, test results, psychological
results, the client's statements, and so on, and then
you as the clinician must make a, you as a vocational
expert must make an estimate. And so what I do is I
use Fields analysis as a starting point and then I revert
to Gamboa to depart from Fields to come up with an
estimate.

20
Kmart does not dispute that the Fields and Gamboa
approaches are accepted methodologies in the vocational
rehabilitation field; what it does challenge is Copemann's
combination method. Each approach, taken in isolation,
may very well contain sufficient analytical rigor to be
deemed reliable. However, we are inclined to view
Copemann's admittedly novel synthesis of the two
methodologies as nothing more than a hodgepodge of the
Fields and Gamboa approaches, permitting Copemann to
offer a subjective judgment about the extent of Elcock's
vocational disability in the guise of a reliable expert opinion.6

Moreover, like the plaintiff in Kumho Tire, Elcock not only
failed to introduce evidence that the particular admixture of
these two methods by Copemann was "generally accepted,"
as required by Daubert's fifth factor, but she also did not
demonstrate that this hybrid approach bore a logical
relationship to the Fields and Gamboa techniques, methods
that had been "established to be reliable," as required by
Daubert's sixth factor. Paoli II, 35 F.3d at 742 n.8. What is
at issue here bears a remarkable similarity to the situation
in Kumho Tire, in which the Court wrote that

nor does anyone deny that, as a general matter, tire
abuse may often be identified by qualified experts
through visual or tactile inspection of the tire. As we
said before, the question before the trial court was
specific, not general. . . .

The particular issue in this case concerned the use
of Carlson's [the plaintiff 's expert] two-factor test and
_________________________________________________________________

6. An argument could perhaps be made that Copemann's method
represents a cross-checking approach that applies the learning of two
accepted methods. In different circumstances, we have opined that there
is nothing wrong with cross-checking the results of two accepted
methods to insure that the outcomes at which one is arriving are
reliable. See Gunter v. Ridgewood Energy Corp. , No. 00-5053, 2000 WL
1038142, at *4 n.1 (3d Cir. July 27, 2000) (recommending that in
awarding attorneys' fees "courts cross-check the percentage award at
which they arrive against the `lodestar' award method"). We are doubtful
that such a generous characterization is appropriate for Copemann's
combination method, but the parties can seek to have that issue
resolved at the Daubert hearing on remand.

21
 his related use of visual/tactile inspection to draw
conclusions on the basis of what seemed small
observational differences. We have found no indication
in the record that other experts in the industry use
Carlson's two-factor test or that tire experts such as
Carlson normally make the very fine distinctions about,
say, the symmetry of comparatively greater shoulder
tread wear that were necessary, on Carlson's own
theory, to support his conclusions. Nor, despite the
prevalence of tire testing, does anyone refer to any
articles or papers that validate Carlson's approach.
. . . . Of course, Carlson himself claimed that his
method was accurate, but, as we [have] pointed out
. . ., "nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the
ipse dixit of the expert."

526 U.S. at 156-57 (citations omitted). Elcock did not
introduce evidence that Copemann's combination method
was either used by other experts or even referenced in the
vocational rehabilitation literature. Moreover, aside from
the brief statement that he used the Gamboa approach to
depart from the Fields approach, Copemann offered no
explanation as to how his hybrid methodology could be
rationally derived from the application of the two accepted
techniques. Thus, we conclude that the fifth and sixth
Daubert factors militate in favor of excluding Copemann's
testimony.

3.

Third, Kmart points to Copemann's thin qualifications to
cast doubt on the reliability of his vocational
rehabilitationist opinion. As we made clear in Paoli II, an
expert's "level of expertise may affect the reliability of the
expert's opinion." 35 F.3d at 741; see also id. at 742 n.8
(listing this element as the seventh Daubert factor). In light
of our substantial discussion in Section II explaining how
Copemann's qualifications are marginal at best, and
mindful of the District Court's statement that the question
of Copemann's qualifications was a "close call," we believe

22
that this factor also weighs in favor of excluding
Copemann's testimony.

4.

Finally, we note that Copemann's application of the
hybrid method he describes appears unreliable on its face.
On direct examination, Copemann testified that"with or
without her disabilities," given the jobs available in the
Virgin Islands, "the only job that [Elcock] could really
possibly go back to do . . . if she gets motivated enough"
would be with Mary Kay. "Given . . . her present condition,"
however, Copemann testified that Elcock is "[n]ot now
[capable]" of meeting the requirements for work as a Mary
Kay representative. If Copemann had actually employed the
Fields method as he described it, Copemann would have
had to conclude that Elcock was 100 percent disabled.
According to Copemann, a vocational rehabilitationist
employing the Fields methodology arrives at a job loss
percentage by comparing the difference between "preinjury
access to the labor market" and "post injury access."
Taking Copemann's testimony at face value, Elcock was
qualified for only one job in the Virgin Islands before her
injury, and no jobs afterwards. As a matter of "percentage"
her "loss of jobs" was 100 percent.

Copemann also said nothing to clarify why an application
of the Gamboa method would have halved this disability
estimate, as it must have if Copemann ultimately
concluded that Elcock was between 50 and 60 percent
disabled. Nor, looking at Copemann's description of his
methodology, does it seem that a reasonable explanation
could be provided. Given the disconnect between the stated
nature of these methods and the results they produced
when the facts of the instant case were plugged into their
machinery, we hesitate to say that Copemann's method is
a reliable one. Though this inconsistency would normally go
to the weight a jury would give Copemann's testimony, in
this case the discord is so stark that we factor it into our
Daubert calculus. Perhaps this inconsistency could be
sufficiently clarified, but at this juncture, a Daubert hearing
is the proper forum for such an elucidation. Cf. Padillas,
186 F.3d at 418 (stating that a district court may abuse its

23
discretion in failing to conduct a Daubert hearing "when the
ruling on admissibility turns on factual issues").

Thus, on balance, given the serious doubts raised by
Kmart regarding Copemann's methods, and in light of
Elcock's failure to adduce much evidence validating his
methods, we feel compelled both to vacate the District
Court's decision to admit Copemann's testimony and to
remand for a Daubert hearing on this issue. We express no
opinion as to the outcome of this hearing. On remand,
Elcock will have an opportunity to substantiate the bases
underlying Copemann's opinion, and Kmart will have an
opportunity to impeach or undermine them.7

C.

Lastly, we offer some guidance for remand concerning the
appropriate role that the challenge to Copemann's
credibility is to play in the Daubert calculus. We note that
in reaching our conclusion about the reliability of
Copemann's methods, we do not consider evidence
regarding Copemann's credibility, or his alleged character
for untruthfulness.

During trial, in an effort to impeach Copemann's
character for truthfulness and to blunt the force of his
testimony, Kmart sought to question Copemann about the
fact that he had engaged in acts of criminal misconduct
involving dishonesty or false statements. Kmart offered to
prove that Copemann and the corporation for which he
served as chief executive officer, Caribbean Behavioral
Institute, Inc. (CBI), had pled guilty to violating 18 U.S.C.
S 641, which prohibits "embezzl[ing] . . . or knowingly
converting to [one's] use . . . any property made or being
made under contract for the United States . . . ." Kmart
sought to question Copemann about the fact that he and
CBI had misappropriated $331,000 from the federal
government.
_________________________________________________________________

7. We note that, on remand, the District Court need not conduct a
Daubert hearing regarding Copemann's ability to testify regarding
Elcock's psychological harms. The parties do not contest his
qualifications to render, or his methods for rendering, such an opinion.

24
The fact that Copemann and CBI pled guilty to
embezzlement and knowing conversion of federal property
arguably casts doubt on his credibility as a witness, and
could--under an overly expansive reading of our
jurisprudence--be an appropriate Daubert factor to weigh
when adjudging reliability. In In re Unisys Savings Plan
Litigation, 173 F.3d 145 (3d Cir. 1999), cert. denied sub
nom., Meinhardt v. Unisys Corp., 120 S. Ct. 372 (1999),
over a strong dissent by the author of this opinion, a panel
of this court affirmed a district court's decision not to admit
the testimony of an expert witness, based in part on the
fact that the district court found the expert to be not
credible. See id. at 158. In support of its conclusion, the
majority contended that the district court could properly
take into account the expert witness's credibility--and was
not limited to assessing the reliability of the expert's
methodology under the Rule 702 Daubert framework--
because the expert's "testimony [did] not fall within the
scope of scientific testimony, and accordingly, it should not
be tested by the particular standards required for testimony
based on a particular scientific ethic." Id. at 157 (second
emphasis added).

Insofar as In re Unisys relied on the now-rejected
distinction between scientific and non-scientific testimony,
this part of the majority's opinion was cast into doubt by
Kumho Tire. Moreover, In re Unisys explicitly limited its
holding to bench trials, in which "the role of the gatekeeper
to admit or exclude evidence . . . and the role of the fact
finder to assess and weigh the evidence that was admitted
. . . are one and the same . . . ." 173 F.3d at 158. The case
at bar was not a bench trial and thus, even assuming that
In re Unisys's holding is still good law, Copemann's
credibility is and was an issue solely within the province of
the jury that could neither be considered by the District
Court when performing its Rule 702 analysis, nor by this
Court in reviewing that analysis. We thus decline to apply
In re Unisys here. On remand, therefore, the District Court
should not consider Copemann's likely credibility as a
witness when assessing the reliability of his methods.8
_________________________________________________________________

8. We note, in addition, that In re Unisys 's holding regarding the
ability
of a trial court to factor credibility into the reliability analysis--
especially

25
IV. The Scope of Kmart's Cross-Examination
Regarding Copemann's Character for
Untruthfulness

The fact that Copemann and CBI pled guilty to violating
18 U.S.C. S 641 became an issue in the litigation between
Elcock and Kmart in another respect. During trial, Kmart
sought to introduce evidence (i) of the fact that Copemann
and CBI had pled guilty to violating 18 U.S.C. S 641, and (ii)
that would provide further details about Copemann's and
CBI's misconduct, including the fact that their crime
consisted of misappropriating $331,000 from the federal
government. Kmart also wanted to cross-examine
Copemann based on the extensive findings of fact made by
the District Court in describing Copemann's and CBI's
misdeeds when sentencing the two in the S 641
prosecution. See United States v. Caribbean Behavioral
Inst., Crim. No. 99-0012, at 1-14 (D.V.I. Aug. 15, 1997).
However, in ruling on an in limine motionfiled by Elcock,
the District Judge, who also presided over the criminal case
against Copemann, forbade questions regarding the amount
that Copemann and CBI had embezzled, as well as about
the facts and circumstances underlying these crimes,
holding that such questions would be cumulative and
would add nothing to Kmart's attempt to impeach
Copemann's veracity. See Elcock v. Kmart Corp. , Civ. No.
1996-0028F, at 5 (D.V.I. Sept. 23, 1997).

Neither party contests the District Court's admission of
the pleas. Rule 609(a)(2) provides that "evidence that any
witness has been convicted of a crime shall be admitted if
it involved dishonesty or false statement, regardless of the
punishment." Fed. R. Evid. 609(a)(2) (emphasis added). A
violation of 18 U.S.C. S 641 is a crime of dishonesty
because it involves the embezzlement of money. See Fed. R.
Evid. 609 advisory committee notes (1990 Amendment)
_________________________________________________________________

when it involves the use of a prior conviction to make an ad hominem
attack on witnesses' believability--has been questioned by at least one
prominent evidence commentator. See Edward J. Imwinkelried, Trial
Judges--Gatekeepers or Usurpers? Can the Trial Judge Critically Assess
the Admissibility of Expert Testimony Without Invading the Jury's
Province to Evaluate the Credibility and Weight of the Testimony, 84
Marq. L. Rev. (forthcoming Fall 2000).

26
(noting that the House and Senate Conference Committee
debating Rule 609 stated that " `[b]y the phrase "dishonesty
and false statement," the Conference means crimes such as
. . . embezzlement' "), reprinted in Federal Civil Judicial
Procedure and Rules 389 (West 2000). The District Court
thus followed Rule 609(a)(2)'s mandate when it admitted
evidence of Copemann's and CBI's guilty pleas for crimes
involving dishonesty.

The District Court's discretion to exclude the challenged
questions regarding the specific acts of misconduct
underlying these pleas reposes in Rule 608(b). Pursuant to
that Rule, which is rescribed in the margin, the specific
acts of misconduct about which Kmart attempted to cross-
examine Copemann are permissible lines of inquiry to
impeach a witness's character for truthfulness, but only at
the discretion of the district court.9 The advisory committee
notes to Rule 608(b) recognize that, in addition to the terms
of Rule 608(b), Rules 403 and 611 govern this discretionary
authority. See Fed. R. Evid. 608(b) advisory committee
notes (1972 Proposed Rules; Note to Subdivision (b)),
reprinted in Federal Civil Judicial Procedure and Rules 383
(West 2000).

Elcock does not contend that Rule 608(b), by its terms,
mandates the exclusion of this evidence. Instead, she rests
her argument on the discretion of the District Court to
forbid lines of inquiry permissible under Rule 608(b).
Accordingly, as did the District Court, we turn to Rules 403
and 611. Rule 403 provides that relevant "evidence may be
_________________________________________________________________

9. The Rule, in pertinent part, provides:

(b) Specific instances of conduct. Specific instances of the
conduct
of a witness, for the purpose of attacking or supporting the
witness'
credibility, other than conviction of crime as provided in rule
609,
may not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness,
be inquired into on cross-examination of the witness (1) concerning
the witness' character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of
another witness as to which character the witness being cross-
examined has testified. . . .

Fed. R. Evid. 608(b) (emphasis added).

27
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence." Rule 611 instructs district courts to"exercise
reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to . . . avoid
needless consumption of time." As noted above, the District
Court excluded the proffered specific-acts line of inquiry
beyond questions relating to the Copemann's and CBI's
guilty pleas and the elements of those offenses, because
inquiries into the facts underlying those crimes would have
been cumulative and would have "provide[d] little further
assistance to the jury in evaluating Dr. Copemann's
credibility." Elcock v. Kmart Corp., Civ. No. 1996-0028F, at
5 (D.V.I. Sept. 23, 1997). We review this decision for abuse
of discretion. See Becker v. ARCO Chem. Co., 207 F.3d 176,
180-81 (3d Cir. 2000).

The amount of money that Copemann and CBI
misappropriated and the exact way in which they did so is
certainly relevant to prove the extent of Copemann's
dishonesty. A juror could rationally conclude that one who
embezzles a million dollars from the Government over a
long period of time has a worse character for veracity than
a person who steals five dollars once. Cf. United States v.
Geevers, No. 99-5155, 2000 WL 1171976, at *7 (3d Cir.
Aug. 18, 2000) ("We think that a defendant who falsifies
checks for large sums of money is more culpable than one
who does so for lesser sums."). To the extent that they
paint Copemann's crimes in a more accurate and complete
manner (as the District Judge did in his sentencing
opinion), questions relating to the facts underlying the
pleas are also more probative of untruthfulness than a
bland reference to a United States Code section or a
recitation of the crime's elements.10
_________________________________________________________________

10. The criminal statute under which Copemann and CBI were
convicted, 18 U.S.C. S 641, states:

Whoever embezzles, steals, purloins, or knowingly converts to his
use or the use of another, or without authority, sells, conveys or
disposes of any record, voucher, money, or thing of value of the

28
In reviewing the trial court record, it is apparent that the
extent and nature of Copemann's criminal misdeeds were
somewhat blunted by the fact that Kmart could not ask
Copemann about the amount of money stolen or the
lengths to which Copemann went to misappropriate these
funds. Thus, were we acting as the trial court in the case
at bar, we likely would have admitted some of this
additional evidence. However, it was well within the District
Court's discretion to reach the conclusion it did, as that
decision was certainly rational and consistent with the
terms of Rules 403 and 611. The chief probative force of the
guilty pleas was the fact that Copemann and CBI
committed crimes of dishonesty, and this evidence came
out during trial. Filling in the details surrounding these
crimes would doubtless have taken a fair bit of trial time,
and would have been cumulative insofar as doing so would
only result in proving the same points--i.e., that Copemann
has a character for being untruthful and his expert
opinions should not be believed. The District Judge, having
presided over the criminal case, was familiar with the
complexity of the facts vel non surrounding these crimes,
and likely had a better sense than we do of what this line
of inquiry would have entailed.

We give "substantial deference" to evidentiary rulings
under Rule 403 and other similarly discretionary
evidentiary rules. Hurley v. Atlantic City Police Dep't, 174
F.3d 95, 110 (3d Cir. 1999), cert. denied, 120 S. Ct. 786
(2000). Abiding by this standard, we hold that the District
Court did not abuse its discretion under Rules 403 and 611
in permitting Kmart to question Copemann only about the
United States Code section of the crime to which he and
_________________________________________________________________

United States or of any department or agency thereof, or any
property made or being made under contract for the United States
or any department or agency thereof . . .

. . .

[s]hall be fined under this title or imprisoned not more than ten
years, or both; but if the value of such property does not exceed
the
sum of $1,000, he shall be fined under this title or imprisoned not
more than one year, or both.

29
CBI entered guilty pleas, as well as the elements of that
offense.11 We note that during the retrial of the damages
issue on remand, Kmart is free to try to pursue its more
expanded line of inquiry, and the District Court is
concomitantly free to forbid such questions for the same
reasons it did so before.

V. The Evidentiary Issues Relating to
Pettingill's Testimony

Pettingill, an economist, testified on Elcock's behalf
regarding her economic losses. He prepared an economic
damages model that relied on several empirical
assumptions about the extent of Elcock's injuries, her
earning capacity before and after the accident, and her life
expectancy. Kmart challenged each of these assumptions
before the District Court, and raises those objections again
on appeal. Kmart, in essence, argues that Pettingill inflated
each of these figures in rendering his expert opinion, and in
doing so, rested his damages opinion on assumptions
wholly lacking foundation in the record. We review the
District Court's decision to admit Pettingill's testimony for
abuse of discretion.
_________________________________________________________________

11. Judge Garth does not agree with the majority of the panel that the
District Court properly exercised its discretion in limiting Kmart's
cross-
examination of Copemann. Copemann had pled guilty to violating 18
U.S.C. S 641 (rescribed in the margin at footnote 10). The extent of
Copemann's crime was found to be $331,513. Kmart was prevented from
bringing this fact to the attention of the jury when it cross-examined
Copemann. Nor could Kmart examine Copemann about the conveyance
and the disposal of those moneys, all of which was accomplished without
authority.

As the majority acknowledges, the facts underlying a plea are more
probative of untruthfulness than merely a recitation of a violation of a
United States Code section or a recitation of the particular crime's
elements. While Judge Garth agrees that the District Court is entitled to
deference when it exercises its discretion, he is of the view that, in
this
instance, the District Court abused its discretion by restricting the
cross-examination of Copemann to the extent that it did. He would so
hold.

30
A.

We have held that "[a]lthough mathematical exactness is
not required, [expert] testimony of post-injury earning
capacity must be based upon the proper factual
foundation." Benjamin v. Peter's Farm Condominium Owners
Ass'n., 820 F.2d 640, 643 (3d Cir. 1987). Put another way,
an "expert's testimony [regarding future earnings loss] must
be accompanied by a sufficient factual foundation before it
can be submitted to the jury." Gumbs v. International
Harvester, Inc., 718 F.2d 88, 98 (3d Cir. 1983). In both
Benjamin and Gumbs, we held that an expert's lost future
earnings opinion was too speculative to be presented to the
jury. In Benjamin, the expert relied solely on the plaintiff 's
personal assessment of his ability to re-enter the work force
in assuming that the injured plaintiff would make only
$10,000 a year as a result of the injuries he sustained. 820
F.2d at 642-43. We held that this assumption, absent
"sufficient factual predicates," id. at 642, was a "castle
made of sand," id. at 643 (internal quotation marks
omitted). In so doing, we set aside a jury verdict for the
plaintiff, because the district court failed to exclude the
expert opinion that relied on this flawed assumption. See
id.

In Gumbs, we held similarly. The expert in Gumbs
"calculated the plaintiff 's future earnings loss based on
plaintiff 's remaining life expectancy of eighteen years rather
than plaintiff 's remaining work-life expectancy of seven and
one-half years." 718 F.2d at 98. The expert also assumed
that, but for his accident, the plaintiff would in the future
earn twice his average annual income for the four years
preceding the accident, as well as receive "$1700 in annual
fringe benefits even though there was no evidence that the
plaintiff had ever received fringe benefits in the past." Id.
Reversing on other grounds, we stated that, on remand, the
expert could not include these assumptions in his
testimony before the jury, unless the assumptions were
"accompanied by a sufficient factual foundation. . . ." Id.12
_________________________________________________________________

12. Other Courts of Appeals have similarly excluded expert opinions not
grounded in the facts of a case. See, e.g., Quinones-Pacheco v. American
Airlines, Inc., 979 F.2d 1, 6 (1st Cir. 1992) ("Because [the expert's]

31
B.

Turning to the facts of this case, we must examine the
disputed assumptions that Pettingill used in arriving at his
lost economic opportunities opinion. Pettingill testified that,
in preparing his economic damages model on Elcock's
behalf, he had received a copy of Copemann's report, which
presumably described Elcock as either 50 to 60 or 50 to 75
percent disabled. Nonetheless, Pettingill assumed that
Elcock was 100 percent disabled when arriving at his
opinion. Pettingill also testified that he was familiar with
Elcock's past earnings, which were relatively meager.
Elcock's husband had testified that she worked fourteen
hours a day as a Mary Kay representative, and the record
shows that she earned $5,774 in 1995 (before the injury)
and $1,070 in 1996 (after the injury). Pettingill nevertheless
assumed, in rendering his opinion, that Elcock would have
made $6 an hour, working 40 hours a week. Thosefigures
indicate that Pettingill presumed that Elcock would have
made a $12,480 a year but for her 100 percent disability,
more than twice her pre-injury earnings. Pettingill also did
not discount for the $1,070 that Elcock was still able to
earn even with her injury. Moreover, although Pettingill at
one point did suggest that the jury could discount from his
100 percent disability figure so as to take account of the
possibility that Elcock was not completely disabled,
Pettingill persisted in employing the 100 percentfigure.

As did the experts' assumptions in Benjamin and Gumbs,
Pettingill's assumptions in the instant case lack foundation
in the record. Though in supplemental post-appellate oral
argument briefing Elcock has pointed out the fact that in
the past she had worked, inter alia, as a pastry chef and a
baker making more than $9 an hour, the underlying data
_________________________________________________________________

analysis was predicated on an assumption not supported by the record--
the assumption that [the plaintiff] suffered from a permanent, total
disability--the district court did not err in excluding the proffer."); In
re
Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1233 (5th Cir.
1986) ("We find the economist's `opinion' that the collective loss of
inheritance for the three children was $1,778,873 to be completely
airborn[e], premised as it was on assumptions without basis in the real
world of [the decedents].").

32
supporting these assertions was not part of the trial record.
Rather, Elcock failed to adduce evidence at trial (or at any
time before the District Court) laying a foundation for the
fact that she could have obtained employment at those
wages in the Virgin Islands before her injuries. Thus, the
assumption that Elcock could have earned over $12,000 a
year when she had only made $5,774 in the year of her
injury should have been excluded for lack of foundation.

The same can be said of Pettingill's failure to take into
account the fact that Elcock continued to earn money as a
Mary Kay salesperson after her injury. According to
Elcock's tax records, she earned $1,070 in 1996, the year
after her slip and fall. Pettingill ignored these more concrete
numbers rooted in the record, which suggest that Elcock
was not completely disabled, in favor of his arbitrary 100
percent disability figure. He made similarly questionable
assumptions about Elcock's life expectancy. In constructing
his damages model, Pettingill assumed that Elcock would
live and work to the average retirement age expected of
African American females. He did not adjust this estimate
to reflect the fact that Elcock's own expert, Payne, testified
that Elcock's poorly controlled diabetes could cut her life
span--and perhaps her working life--short. Ignoring "the
real world of " Carmelita Elcock renders Pettingill's opinion
inadmissible.

In sum, we believe that Pettingill's economic damages
model relied on several empirical assumptions that were
not supported by the record. Although Pettingill suggested
to the jury that it might discount the 100 percent disability
figure that he plugged into his economic model, this
suggestion is not sufficient to change the result. In the
absence of clearer instructions or emphasis by the witness
or the court, a jury is likely to adopt the grossfigure
advanced by a witness who has been presented as an
expert. Accordingly, the District Court abused its discretion
in admitting Pettingill's model as evidence. Cf. Benjamin,
820 F.2d at 643; Gumbs, 718 F.2d at 98. 13
(Text continued on page 35)
_________________________________________________________________

13. Interestingly, though the foundation requirement for expert testimony
is well developed in the case law and in the experience of trial lawyers
and judges, neither our opinions in Gumbs and Benjamin nor the

33
evidence treatises themselves expressly ground this requirement in one
of the Federal Rules of Evidence or in the legislative history or advisory
committee notes accompanying the Rules. Like the case law and trial
practice governing cross-examination for bias, see United States v. Abel,
469 U.S. 45, 49 (1984), the foundation requirement is a rule of evidence
that can only be found in the interstitial gaps among the federal rules.

In these terms, Article VII would likely be the best source for the rule,
as it governs and is titled "Opinions and Expert Testimony." Rules 702
and 703 bear on foundation analysis, but neither Rule addresses it in
explicit terms; nor do the advisory committee notes accompanying the
Rules. Nonetheless, a lost future earnings expert who renders an opinion
about a plaintiff 's future economic harm based on economic
assumptions not present in the plaintiff 's case cannot be said to "assist
the trier of fact," as Rule 702 requires. This type of an opinion misleads
the fact-finder and arguably does not comply with the "fit" requirement
of that Rule. See supra Section II.A (discussing this requirement); see
also 2 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra,
Federal Rules of Evidence Manual 1272-75 (7th ed. 1998) (detailing Rule
702 and collecting cases in which courts have excluded expert testimony
from economists because their damages models did notfit with the facts
in evidence).

Rule 703 embodies a similar requirement, which does not clearly set
forth the foundation rule used in Gumbs and Benjamin, but which does
bear on the analysis inhering in those cases. Rule 703, titled "Bases of
Opinion Testimony by Experts," provides that

[t]he 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.

While these limitations and the notes accompanying them do not
specifically address the exclusion of expert testimony based on
assumptions lacking a foundation in the record, it is not a stretch from
the requirement that other "experts in the particular field" would
"reasonably rel[y]" on such data in"forming opinions . . . on the
subject,"
id., to suggest that an expert should not depend on fictional or random
data when rendering an opinion about the quantum of economic harm
in a particular plaintiff 's case. Cf. Saltzburg, supra, at 1397-99
(discussing Rule 703 and collecting cases in which courts have excluded

34
VI. The Jury's Award

Kmart challenges the jury's $650,000 damage award on
two grounds. First, Kmart contends that Elcock failed to
adduce evidence sufficient to support a jury'sfinding that
her slip and fall caused her permanent injuries. Second,
Kmart argues that both the economic and non-economic
awards were excessive and should be remitted.

A.

In asserting that Elcock failed to establish causation with
respect to her permanent injuries, Kmart points primarily
to inconsistencies in the testimony of Payne, who was
Elcock's principal witness on permanence, concerning the
location of trigger points. On direct examination, Payne
testified that, as a result of her fall, Elcock suffered
permanent injuries to her back and legs, including trigger
points in the gluteus maximus that caused pain to radiate
_________________________________________________________________

expert testimony because the experts unreasonably relied on underlying
data that was too speculative or not introduced into evidence). Indeed,
the very title of Rule 703 supports its applicability to foundation
generally.

Undergirding for Gumbs's and Benjamin 's foundation rule can also be
found in Article IV of the Rules of Evidence. Rule 402 sets forth a
liberal
admissibility standard for "[a]ll relevant evidence," defined in Rule 401
as
"evidence having any tendency" to make "more probable or less probable"
the existence "of any fact that is of consequence to the determination of
the action." Under this framework, an economist's testimony concerning
a reliable method for assessing future economic losses can be deemed
relevant only insofar as a jury can usefully apply that methodology to the
specific facts of a particular plaintiff 's case. Moreover, Rule 403
grants
to the district court the discretion to exclude relevant evidence "if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury." Given the
realities of litigation, the opinion of a witness impressed by the court
with the label of "expert" may carry a great deal of weight with a lay
jury,
particularly in matters as complex as lost future earnings assessments.
Permitting such a witness to offer an opinion unsupported by a sufficient
factual foundation would significantly increase the risk of misleading the
jury and confusing the issues, the very dangers against which Rule 403
defends.

35
to her right knee. On cross examination, Kmart impeached
Payne's testimony by forcing her to admit that, according to
the leading treatise on the subject, pain caused by trigger
points in the gluteus maximus would not travel below the
thigh. Payne acknowledged that her original diagnosis was
mistaken, but responded by clarifying that Elcock's trigger
points were in fact situated on the dividing line between the
gluteus maximus and gluteus medius muscles. Parsing this
testimony, Kmart contends that Payne has not offered an
opinion as to causation based on the revised trigger point
placement, and therefore, that Elcock has failed to produce
sufficient evidence to support a conclusion that her slip
and fall caused her permanent injuries.

However, Kmart has ignored the fact that Payne testified
on redirect examination that her misplacement of trigger
points did not affect either her opinion regarding the
permanence of Elcock's injuries or her conclusion that
Elcock's slip and fall at Kmart caused those harms. Thus,
while Kmart's cross examination may have poked some
holes in Payne's trigger point diagnosis, Payne did reaffirm
her opinion as to the permanence and cause of Elcock's
injuries. In making its determination as to causation, the
jury apparently credited Payne's testimony, as it was
entitled to do. We will not disturb that conclusion.

B.

Kmart also argues that both the economic element of the
jury's damage award, which includes a recovery for lost
earnings and lost earning capacity, and the non-economic
component, which includes a recovery for pain and
suffering, were excessive and should have been remitted.
We need not reach Kmart's remittitur argument, however,
as we remand for a new trial on the issue of damages. Our
discussion of the defects in Copemann's and Pettingill's
testimony sufficiently demonstrates the need for a retrial of
economic damages. Whether the new trial on remand must
also extend to the non-economic portion of the jury's
damage verdict presents a closer question.

A partial new trial "may not properly be resorted to
unless it clearly appears that the issue to be retried is so

36
distinct and separable from the others that a trial of it
alone may be had without injustice." Vizzini v. Ford Motor
Co., 569 F.2d 745, 760 (3d Cir. 1977) (quoting Gasoline
Prods. Co., Inc. v. Champlin Refining Co., 283 U.S. 494, 500
(1931)). The grant of a partial new trial is appropriate "only
in those cases where it is plain that the error which has
crept into one element of the verdict did not in any way
affect the determination of any other issue." Romer v.
Baldwin, 317 F.2d 919, 922-23 (3d Cir. 1963) (citation and
quotation marks omitted). Having looked at the manner in
which evidence of Elcock's damages was presented at trial,
we must acknowledge the possibility that the jury did not
keep the award of non-economic damages distinct and
separate from the award of economic damages.

For instance, at trial, Copemann offered not only an
opinion as to Elcock's vocational disability, the basis of her
recovery for lost earnings and lost earning capacity, but
also testified about the extent of Elcock's psychological and
physical injuries, a principal factor in her pain and
suffering award. In light of Copemann's testimony, the jury
may have considered it appropriate to base its pain and
suffering award in part on evidence of Elcock's lost earning
capacity. There are other possible areas of overlap. Both
Copemann and Pettingill opined that Elcock was
substantially, if not completely, impaired in her ability to
work. Pettingill's lost earnings model assumed that Elcock
was 100 percent disabled, and Copemann specifically noted
that, following her injury, Elcock was no longerfit for the
one job for which she was qualified. From these opinions of
complete disability, the jury may have inferred that Elcock
suffered a significant loss in her enjoyment of life, and
increased her non-economic damage award accordingly.

Because we cannot confidently conclude that theflaws in
Elcock's evidence of economic damages did not affect the
jury's determination of her non-economic damages, the
general presumption against partial new trials recognized in
Vizzini and Romer guides our decision. We therefore hold
that a new trial must be had on the entire damage issue.14
_________________________________________________________________

14. Given the fact that Kmart has conceded its liability, the new trial on
remand need not include the liability issue.

37
VII. Conclusion

For the foregoing reasons, the judgment of the District
Court will be affirmed in part and reversed in part, and the
case remanded for a new trial on the issue of damages.
Parties to bear their own costs.

A True Copy:
Teste:

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

38