[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 30, 2004
No. 03-14527 THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00386-CV-B-NE
ODESSA DEE HALL, as personal
representative of the estate
of Agnes Patterson,
Plaintiff-Appellant,
versus
UNITED INSURANCE COMPANY OF AMERICA,
UNITED INSURANCE COMPANY OF AMERICA,
Employee Benefit or Welfare Plan on
behalf of Teledyne Brown Employees,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 30, 2004)
Before BIRCH, MARCUS and BRUNETTI*, Circuit Judges.
BIRCH, Circuit Judge:
The novel issue presented in this appeal involves the interplay between two
Federal Rules of Evidence: 901(b)(2), which allows non-expert opinion testimony
about the genuineness of handwriting evidence based on sufficient familiarity, and
701, which allows lay opinion testimony that is rationally based on personal
perceptions. Plaintiff-appellant, Odessa Dee Hall (“Hall”), filed an affidavit
stating that a signature on a document purporting to cancel an insurance policy
with defendant-appellee, United Insurance Company of America (“United”), was
not authentic. The district court struck the affidavit, citing precedent from our
sister circuits, on the ground that, because Hall could not demonstrate sufficient
familiarity with the handwriting of the alleged signatory as required under Rule
901(b)(2), her opinion testimony was not rationally based on her own perceptions
as required under Rule 701. After striking Hall's affidavit, the district court
granted summary judgment to United based on the court's assessment that no
genuine issue of material fact remained.
This court has not yet addressed the foundation necessary for lay opinion
testimony proffered under Rules 901(b)(2) and 701. We AFFIRM the district
*
Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
2
court's assessment of the relationship between these two Rules. We also AFFIRM
the district court's grant of summary judgment to United, as well as the district
court's decision denying Hall's motion to file a second amended complaint.
I. BACKGROUND
Bobby Patterson (“Bobby”), who had a life insurance contract with United,
was disabled due to mental impairments in 1990, and was placed on disability
leave by his employer. United waived the premiums so long as Bobby complied
with periodic medical examination requirements.
In 1995, Bobby completed a “Waiver of Premium Questionnaire” that
stated: “I really do not wish this insurance to continue. It doesn't help me at all.”
R1-12, Ex. A-4. United sent Bobby two letters requesting that he complete a
waiver form if he wanted to terminate his life insurance policy.
A document dated 5 April 1996, and purportedly signed by Bobby, stated:
“I, Bobby M. Patterson request that my waiver of premium for my group life
insurance policy through my former employer . . . be discontinued effective
immediately.” Id. at Ex. A-6. In response to this waiver of benefits, United sent
Bobby a letter dated 23 July 1996 informing him that his life insurance policy had
been terminated as per his request.
3
Almost four years later, Bobby died. Bobby's mother, Agnes Patterson
(“Agnes”), was designated as the beneficiary under the United life insurance
policy. Agnes died approximately one and a half years after Bobby died and never
made a claim for benefits under the policy.
About six months after Agnes's death, Hall, as personal representative of
Agnes' estate, made a claim for benefits under the policy, alleging two theories: (1)
the waiver was not valid because it was not Bobby's signature and (2) Bobby was
not mentally competent to have signed any waiver.2
In support of her arguments, Hall submitted two affidavits. The first
affidavit was executed by Hall herself and stated:
Over the course of time that I knew Bobby Patterson, [more than
thirty years,] I became familiar with his handwriting. I saw him write,
received correspondence from him and helped him review documents
which he executed in my presence. I have examined the purported
signatures of Bobby Patterson, dated August 30, 1995 [Questionnaire]
and April 5, 1996 [Waiver] and they do not appear to be his
handwriting.
R1-21, Ex. A. The second affidavit was submitted by Rocco Petrella, a “licensed
professional counselor,” who reviewed medical reports and opined that Bobby was
not mentally competent to have signed any documents. Id. at Ex. B. One of the
documents reviewed by Petrella contained statements and conclusions reached by
2
Hall's complaint was originally filed in Alabama State Court but was removed by United
to the Northern District of Alabama on the basis of diversity jurisdiction. R1-1.
4
Bobby's attending psychiatrist, who concluded that Bobby was competent. In his
affidavit, Petrella offered no explanation for his assertions to the contrary.
The district court struck both affidavits. As for the counselor's affidavit, the
district court determined that the counselor was not a medical expert and therefore
his testimony was inadmissible under Federal Rule of Evidence 702.
As for Hall's affidavit, the district court struck all relevant portions because
Hall had not demonstrated with sufficient reliability how she was familiar with
Bobby's signature.
After striking both affidavits, the district court concluded that no genuine
issues of material fact remained and granted summary judgment to United. The
district court also denied Hall's motion to file a second amended complaint–with
new claims related to those filed in the first amended complaint–on the ground that
the second amended complaint would be “futile” because it contained “no
potentially meritorious claims.” R1-27 at 3.
II. DISCUSSION
Hall appeals the district court's decisions striking both affidavits and
granting summary judgment to United. In addition, on the ground that the district
court's grant of summary judgment was inappropriate, Hall appeals the court's
5
denial of her motion to file a second amended complaint.3 We address each
argument in turn, beginning with the applicable standard of review.
A. The Affidavits
We review evidentiary rulings made by the district court for abuse of
discretion and will reverse the district court's decision only in cases where
substantial prejudice exists. Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155
(11th Cir. 2002). In this case, we cannot say that the district court's decision to
strike either affidavit was an abuse of discretion.
1. Hall's Affidavit
Hall's affidavit stated that she was familiar with Bobby's handwriting and
that the signature on the waiver did not appear to be his. The district court, under
Rule 901(b)(2), struck Hall's affidavit because it provided no foundation detailing
how Hall had become familiar with Bobby's handwriting. And because Hall could
not demonstrate sufficient familiarity, the district court held that the affidavit did
not satisfy Rule 701 because her opinion testimony “would not be rationally based
3
Hall also appeals the district court's denial of her motion to compel discovery before
ruling on United's summary judgment motion. Because Hall made vague assertions, thereby
failing to satisfy the requirements of Federal Rule of Civil Procedure 56(f), we find this
argument without merit and affirm the judgment of the district court on this issue. See, e.g.,
Wallace v. Brownell Pontiac-GMC Co., Inc., 703 F.2d 525, 527 (11th Cir. 1983) (the party
requesting discovery under Rule 56(f) must “specifically demonstrate how postponement of a
ruling on the motion will enable him, by discovery or other means, to rebut the movant's
showing of the absence of a genuine issue of fact”) (citation omitted).
6
on her own perceptions.” R1-28 at 6. In reaching this conclusion, the district court
relied on decisions by our sister circuits because this court has not ruled on the
proper foundation required for testimony admitted under Rules 701 and 901(b)(2).
We do so now, beginning with a general discussion of the two Rules and then
considering persuasive authority from our sister circuits.
a. Rules 701 and 901(b)(2)
Rule 701 governs lay witness opinion testimony generally and dictates that
such testimony must meet three requirements, one of which is relevant here: the
testimony must be “rationally based on the perception of the witness.” Fed. R.
Evid. 701(a). Rule 901(b)(2) is a more specific rule, governing lay witness opinion
testimony as it relates to the identification of handwriting. This rule requires that
“[n]on-expert opinion [testimony] as to the genuineness of handwriting [must be]
based upon familiarity not acquired for purposes of the litigation.” Fed. R. Evid.
901(b)(2) (emphasis added). Thus, testimony purporting to satisfy the specific
requirements of Rule 901(b)(2) must also satisfy the general requirements in Rule
701. If either Rule is not satisfied, the testimony is inadmissible.
We have not previously had occasion to detail the necessary foundation a lay
person must establish under Rules 901(b)(2) and 701 in order to testify concerning
handwriting. United States v. Barker, 735 F.2d 1280 (11th Cir. 1984), is the only
7
published opinion by this court discussing these two Rules. In that case, we held
that lay witness opinion testimony by two co-workers of the defendant-signatory,
who was charged with stealing bank checks, was properly admitted under Rules
901(b)(2) and 701. Id. at 1283. We noted that “[b]oth witnesses testified they
were familiar with the defendant's handwriting and stated that in their opinions it
matched or was similar to the handwriting on the checks.” Id. We did not,
however, provide guidance detailing how a witness could demonstrate his or her
familiarity with disputed handwriting. For direction, we consider the decisions of
our sister circuits, as did the district court.
b. Persuasive Authority
In United States v. Binzel, relied upon by the district court, the Seventh
Circuit concluded that “there must be a minimal factual bases from which
knowledge of, and a familiarity with, another's handwriting might reasonably have
been acquired, in the absence of which the opinion evidence may be properly
excluded.” 907 F.2d 746, 749 (7th Cir. 1990). In the affidavit at issue in that case,
Binzel purported to testify that the signature of the guarantor on the guarantee
agreement was forged. Binzel asserted “that he acquired his 'familiarity' with [the
guarantor's] signature” by observing the guarantor execute documents and viewing
documents that were purportedly executed by the guarantor. Id. The district court
8
struck the affidavit and the Seventh Circuit affirmed, noting that the proper
foundation for familiarity was not established:
Binzel does not identify the nature of the “documents” to which he
refers, or attempt to establish the authenticity or genuineness of those
documents. Neither does he identify a relationship or course of
business with [the guarantor] that would reasonably familiarize him
with [the guarantor's] signature. His opinion as to the authenticity of
[the guarantor's] signature is based on nothing more than conclusory,
self-serving allegations.
Id.
More recently, the First Circuit addressed the interplay between Rules
901(b)(2) and 701, holding that both must be satisfied before lay witness opinion
testimony regarding handwriting will be admissible. United States v. Scott, 270
F.3d 30, 49 (1st Cir. 2001). In Scott, the defendant (Scott) was charged with, inter
alia, making and possessing a forged check. Id. at 33. Donahue, an IRS agent
involved in the investigation, purported to testify that certain documents were in
Scott's handwriting. Donahue had been investigating Scott for many years and,
during that time, had seen many examples of Scott's handwriting, including:
three to five letters, five to ten court pleadings, signature cards to open
three bank accounts in Scott's name, fifty or sixty checks and deposit
slips for those accounts, five to ten money orders, applications to file
tax returns electronically, two driver's licenses, a pilot's license, and
five to ten forms Scott had signed as part of booking procedures at
police stations, among others. Donahue also saw Scott sign a
document in his presence: a fingerprint card at the marshal's office
during an earlier investigation.
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Id. at 48. The district court forbade Donahue's identification of Scott's
handwriting, but the First Circuit reversed, holding that “there was enough
familiarity on the part of the witness [Donahue] to admit the testimony,” even
though Donahue witnessed Scott actually sign his name only once. Id. at 50.
In this case, Hall's affidavit states that she became familiar with Bobby's
handwriting over the course of thirty years. R1-21, Ex. A. Hall asserts that she
“saw [Bobby] write, received correspondence from him and helped him review
documents which he executed in my presence.” Id. Unlike the details provided in
Scott and similar to the bald allegations in Binzel, Hall's affidavit does not provide
the proper foundation detailing how her familiarity with Bobby's handwriting was
obtained. While witnessing the disputed signature is not required, see, e.g., United
States v. Tipton, 964 F.2d 650, 655 (7th Cir. 1992), we conclude that the lay
witness must provide more detailed information regarding any “correspondence,”
“documents,” or the like, relied upon to establish familiarity. Such instruments
must be identified with particularity. Moreover, the lay witness must provide
detailed information regarding his or her relationship with the signatory––whether
it be familial, professional, or otherwise personal. In this case, Hall has provided
no detailed information regarding either the instruments relied upon to garner
familiarity with Bobby's handwriting or her relationship with him. Accordingly,
10
we cannot say that the district court's decision to strike Hall's affidavit was an
abuse of discretion.4
2. Counselor's Affidavit
Hall submitted the affidavit of Rocco Petrella–a “licensed professional
counselor”–as an expert in mental health diagnoses, for his opinion that Bobby was
not competent to sign the United waiver on 5 April 1996. R1-21, Ex. B. The
district court struck Petrella's affidavit on the ground that it failed the requirements
of Rule 702 of the Federal Rules of Evidence.
As the district court noted, admission of expert testimony is governed by
Rule 702, which states:
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, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid. 702. “The burden of laying the proper foundation for the admission
of expert testimony is on the party offering the expert, and the admissibility must
4
In addition to striking those portions of Hall's affidavit relating to Bobby's handwriting,
the district court also struck the portions of her affidavit relating to her opinion as to Bobby's
mental condition. R1-28 at 7. Because Hall was not qualified to testify as to Bobby's mental
capacity, the district court's decision to strike those portions of Hall's affidavit was not an abuse
of discretion and is affirmed. The portions of Hall's affidavit relating to Bobby's behavior based
on her personal knowledge were properly admitted. Id.
11
be shown by a preponderance of the evidence.” Allison v. McGhan Med. Corp.,
184 F.3d 1300, 1306 (11th Cir.1999). The Supreme Court, in Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 2798 (1993) and Khumo
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 1176 (1999), has
dictated that district courts act as gatekeepers and have “considerable leeway”
when deciding to admit or exclude expert testimony. Accordingly, “our review of
evidentiary rulings by trial courts on the admission of expert testimony is very
limited.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.
2002) (citation omitted).
In this case, Petrella's “expert” opinion was based on his review of several
documents related to Bobby's mental health, including statements made by Bobby's
attending psychiatrist. While Bobby's medical doctor concluded that he was
competent, Petrella came to the opposite conclusion, with no explanation offered in
his affidavit for this contrary result. The district court concluded that Hall “[had]
not demonstrated that the information Petrella reviewed contained sufficient facts
or data upon which to base [his] opinion,” R1-28 at 8, and that “Petrella [did] not
cite to any scientific methodology or literature supporting his conclusions or
approving of the method he employed to make those conclusions,” id. at 9.
Moreover, the district court stated that Hall “[had] not sufficiently demonstrated
12
that counselors with similar training are qualified to render an opinion as to an
individual's mental capacity.” Id. at 8. Based on our “limited” review of the
district court's decision to strike Petrella's affidavit, we cannot say that the district
court abused its discretion. Accordingly, the judgment of the district court is
affirmed.
B. Summary Judgment
“We review the trial court's grant or denial of a motion for summary
judgment de novo, viewing the record and drawing all reasonable inferences in the
light most favorable to the non-moving party.” Patton v. Triad Guar. Ins. Corp.,
277 F.3d 1294, 1296 (11th Cir. 2002). Summary judgment is appropriate when
“there is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In this case,
because no material factual disputes remained, we affirm the district court's grant
of summary judgment to United.
In this case, we have concluded that the district court properly struck both
(1) the portions of Hall's affidavit relating to Bobby's mental capacity and the
validity of his signature, and (2) Petrella's purported expert affidavit relating to
Bobby's mental capacity. Because all of Hall's evidence challenging the validity of
Bobby's waiver of insurance benefits has been excluded, no genuine issue of fact
13
remains as to whether the United policy was waived. The district court correctly
concluded that “[w]ithout an existing policy of life insurance, United owed no duty
to pay life insurance benefits to [Agnes].” R1-28 at 9. Thus, summary judgment
was properly granted in favor of United.5
C. Motion to File Amended Complaint
We review the district court's decision to deny Hall's motion to amend her
complaint for an abuse of discretion. Green Leaf Nursery v. E.I. DuPont De
Nemours and Co., 341 F.3d 1292, 1300 (11th Cir. 2003). In this case, the district
court denied Hall's motion on the ground that granting it would be “futile” because
her second amended complaint contained “no potentially meritorious claims.” R1-
27 at 3. We conclude this decision was not an abuse of discretion and affirm the
district court's order denying Hall's motion to file a second amended complaint.
Ordinarily, “[i]f the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief,” Froman v. Davis, 371 U.S. 178, 182, 83
5
We note that Rule 901(b)(3) provides, alternatively, that the trier of fact or an expert
handwriting witness may determine the validity of a contested signature. Fed. R. Evid.
901(b)(3). In this case, however, Hall offered only her own affidavit challenging the validity of
Bobby's signature on the United insurance waiver. She did not submit any of the
“correspondence” she received from Bobby or any of the “documents” he allegedly executed in
her presence as evidence of his proper signature. Moreover, Hall did not offer any expert
testimony as to the validity of Bobby's signature on the waiver. While Hall asserts that the
validity of Bobby's signature is a genuine issue of material fact that remains for jury
consideration, this material fact is not disputed because all of Hall's evidence in support of her
contention was properly struck. See Fed. R. Civ. P. 56(c). Thus, United is entitled to judgment
as a matter of law and Rule 901(b)(3) does not apply in this case. See id.
14
S. Ct. 227, 230 (1962), leave to amend “should be freely given,” Fed. R. Civ. P.
15(a). Under Froman, however, a district court may properly deny leave to amend
the complaint under Rule 15(a) when such amendment would be futile. Froman,
371 U.S. at 182, 83 S. Ct. at 230. “This court has found that denial of leave to
amend is justified by futility when the complaint as amended is still subject to
dismissal.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999)
(citation omitted).
In this case, the district court properly denied Hall's motion to file a second
amended complaint because the three new claims asserted, like those in her first
amended complaint, would have been subject to dismissal as a matter of law. The
first two new claims were predicated on the existence of a valid insurance contract
between Bobby and United at the time of his death. Because the district court
properly granted summary judgment on this issue, denial of Hall's motion to add
these two new claims was proper. Hall's third new claim involved fraud allegedly
committed against Bobby by both United and his former employer. As the district
court correctly noted, however, fraud claims do not survive Bobby's death. See
Miller v. Dobbs Mobile Bay, Inc., 661 So.2d 203, 205 (Ala. 1995). Accordingly,
the district court's denial of Hall's motion to file a second amended complaint as
futile was not an abuse of discretion and is affirmed.
15
III. CONCLUSION
In this appeal, Hall alleged that the district court erred by striking her
affidavit and the affidavit offered by her expert, Rocco Petrella. She also alleged
error in the district court's grant of summary judgment to United and the district
court's judgment denying her motion to file a second amended complaint. We
disagree with all of the arguments proffered by Hall and find no reversible error
committed by the district court. Accordingly, the judgment of the district court is
AFFIRMED.
16