dissenting.
I would begin by pointing out what I think is an error in the procedure followed by the panel. The notice of appeal filed by the defendant and third party plaintiff Webber was from “the final judgment entered in this action on the 4th day of June, 1986”; it was not an appeal from the grant of a new trial after either the first or second trial. Yet the reversal by us applies only to the grant of a new trial after the first trial herein. If we are to adhere to the rule adopted by this Court less than six months ago in Foster v. Tandy Corp., 828 F.2d 1052, 1059 (4th Cir.1987), reversal herein on the ground assigned is clearly inappropriate. In Foster, the notice of appeal is practically a duplicate of that in this case.1 In that case, the appellant sought, among other claims, to challenge the propriety of the district court’s grant of a directed verdict on his claim of breach of contract. We dismissed this part of the appeal, stating (828 F.2d at 1059):
As a final point, Foster attempts in his brief to challenge the action of the district court in granting the motion of Tan-dy for a directed verdict on the claim that Tandy breached its contract and misrepresented its status as an equal opportunity employer. Dispositive to this claim is the fact that the notice of appeal filed by Foster addressed only the granting of the judgment n.o.v. motion, and did not set out as a basis for appeal the granting of Tandy’s motion for a directed verdict. “Since the jurisdiction of the appellate court is determined by the timeliness and specific terms of the notice, it cannot be modified to cover a judgment not included by any reasonable interpretation.”
That language of Foster absolutely covers this case and should dispose of any appeal from the grants of new trial after the first and second verdict. A decision of the district court is compelled by Foster unless we are to depart from our rule that a decision in a prior precedent by this court which decided the legal issue involved is to be followed and may only be disregarded after an en banc court. I would, therefore, dismiss any appeal from the grant by the district court of a new trial after either the first or second trial.
But, if this court is to disregard the procedural bar which I perceive bars review of the district court’s denial of a new trial after the first and second trials herein *1252and to review as it does those denials on their merits, I would dissent from the conclusions reached on that question.
There are matters on the substantive issue of liability as stated in the majority opinion with respect to which I differ with the majority. My point of difference with the majority opinion on that issue relates to the propriety of the district court’s order granting a new trial after the first trial in this case. My reasons for this difference of opinion may be quickly summarized. Wanda Webber, the counterclaim plaintiff, purchased the combine, which is the subject of this action, on September 25, 1982. The actual cash price was $35,000. She paid in cash all but $30,000 of the purchase price and financed the balance. She used the combine to harvest three separate crops. Her neighbor and chief outside witness, Wayne Yarboro, borrowed the combine from Webber on several occasions and used it to harvest his own crops. Webber did complain on several occasions about the operation of the combine to the dealer from whom she had purchased the machine. The dealer sent an expert mechanic who made some adjustments but whose general testimony was that the machine was operating satisfactorily. This expert had at the time of his testimony left the employ of the dealer and was, therefore, a disinterested witness. It was only when Webber began to default on her installment payments and the finance company began action in September, 1984, for the balance due on her financed paper that Webber asserted by way of a counterclaim her action for breach of warranty of the combine. I mention these facts because they have a direct bearing on the issue of damages allowed for the breach in the first trial by the jury, which the majority sustains. While I find the evidence of a breach of warranty meager, I accept that it was probably sufficient for jury submission, but I differ sharply with the majority on the sufficiency of the evidence on damages.
Under North Carolina law, which is applicable here, the measure of damages for a manufacturer’s breach of warranty is the difference at the time and place of acceptance between the market value of the goods accepted and the market value they would have had if they had been as warranted, and the burden of proving the difference in value rests upon the purchaser. Stutts v. Green Ford, Inc., 47 N.C.App. 503, 513, 267 S.E.2d 919, 926 (1980). The purchaser (Webber) in this case offered one witness at both the first and second trials on this issue. This witness was Wayne Yarboro, who described himself as a “full-time farmer” with ten years’ experience as such. Yarboro and the purchaser were “neighbors” and “good friends,” who swapped “chores pack [sic] and forth.” He used a Massey combine and it had “done an excellent job for [him].” Sometime in the middle of the summer of 1983 he borrowed the combine Webber had purchased and used it for harvesting his fescue crop. He said he thought the combine was “blowing out too many seeds,” and was not operating “to full efficiency.” However, he did not discontinue using the combine but completed his harvesting with the combine. Later, Webber had him to use the combine in harvesting her wheat. He testified that the combine operated somewhat slower than it should and there was “an excessive amount of loss of grain.” He then gave an opinion, based “upon [his] knowledge and experience as a full-time farmer, and based upon knowledge [he] may have of the farm implement business,” as to the value of the combine at time of acceptance, had it been “in true working order,” on its value at time of delivery. He fixed these two values as $35,000 and $5,000 at the first trial, and at the second trial he testified the value of the machine to Webber was “nothing.” Yarboro arrived at his estimates of value, as he testified, because “[f|or what she [the plaintiff-Webber] bought it to do with, it was worth nothing to her, because it didn’t do what it was supposed to do.” The district court told the witness that the issue was “the actual reasonable market value” of the machine at delivery and not necessarily what it was worth to Webber. To this instruction, the witness responded doggedly, “[t]o her it was worth nothing.” Such was the basis for the testimony of *1253Webber’s only witness on the critical issue of measure of damages at the second trial.
The district judge set aside the verdicts in both trials, finding that the testimony of the witness on measure of damages was insufficient to sustain the verdict. In reaching his decision, he found the testimony of Yarboro on value at both trials to be incredible. And this conclusion is, I suggest, reasonable. The machine was accepted by Webber, kept for two years, and used by her to harvest three crops. Her value witness, who testified that the machine had no value, actually borrowed the machine and used it to harvest his own crop. I agree with the district judge that it is unbelievable to assume that such a machine had no value or mere salvageable value. As a matter of fact, Yarboro never qualified as an expert on the value of machines such as that involved here. He certainly did not show himself qualified “by knowledge, skill, experience, training or education” to give an opinion on the market value of the machine in this case; yet that is precisely the qualification for an expert witness required under Rule 702, Federal Rules of Evidence. So far as the record shows, he had never himself bought such a machine, traded one or dealt in any way with the value of the machine. In fact, his value opinion was not based on market value, as the rule requires, but was based on what he thought the machine was worth to Web-ber. An opinion based on a fallacious assumption is actually entitled to no weight and this is just what the district judge gave Yarboro’s opinion, a decision he was plainly entitled to make. Yet the jury in both trials accepted completely the valuations given by Yarboro, valuations which did not conform to the standards for such valuations established by North Carolina law, returning a verdict in the first trial of $30,000 on the basis that the machine had no value other than as salvage and in the second of $35,000, the full purchase price of the machine, allowing nothing for its marketable value at time of acceptance.
It is obvious that the majority assumes that the measure of damages for breach of contract here is the difference in cost between actual cost and the salvage value of the machine at time of acceptance, or what it was worth to Mrs. Webber. The issue under North Carolina law is the market value of the machine when Mrs. Webber accepted it. That this is so is clear from the language of the North Carolina decisions and was stated by the district judge when the witness Yarboro was testifying. Despite this, Mrs. Webber persisted in declaring the value to be, in one case, the value of the machine to her and in the other its salvageable value and not its market value for comparison with the value if the machine had been as warranted. The district court refused to sustain a verdict for damages in both cases based on a standard plainly contrary to controlling law.
If there was ever a case where it was proper for the district judge to grant new trials, this was such a one. There was actually no credible testimony offered by Webber at either trial of the market value of the machine in question when it was accepted by her. Absent such testimony, it was within the unquestionable authority of the district judge to grant a new trial; in fact, plain justice demanded such action. See Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 352-53 (4th Cir.1941). In that case the Court said:
On such a motion it is the duty of the judge to set aside the verdict and grant a new trial, if he is of opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.
This case has consistently been followed by us. Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888, 891-92 (4th Cir.1980). The majority, however, held that
Ordinarily, the proper remedy at this juncture would be to reverse the court’s order requiring a second new trial and remand the case for a reinstatement of the second jury verdict. We need not, however, ignore the undisputed fact, conceded anew by the parties at oral argument, that the combine sold to Webber did have a salvage value near that figure *1254estimated by Yarboro. To restore the second verdict would give Webber an undeserved windfall in the amount of $5,000. We therefore conclude that the judicial policy disfavoring multiple retrials absent “exceptional” circumstances can best be applied in this instance by reinstating the first jury verdict below.
For the reasons stated, I would affirm the district judge’s grant of a new trial after both the first and second verdict herein and I dissent from the holding in the majority opinion that such grant was erroneous.
. The majority opinion in its note 4 would distinguish Poster from this case because the order of appeal was from "a judgment and order of ... (the district court) dated October 29, 1987,” and therefore on appeal was solely from that order and did not involve any other error in the case, whereas in this case Webber "duly noted her appeal from ‘final judgment.' ” The "judgment and order" from which the appeal was taken in Foster was the denial of "judgment n.o.v.”; that in Webber was "from the final judgment entered in this action on the 4th of June, 1986.” I perceive no difference in the two notices: Both put in issue the final judgment, one in the form of a denial of a judgment n.o.v. and the other a final judgment. If anything, Foster's notice was broader in its application than the notice in this case, which confined its application to the final judgment "of June 4, 1986," a judgment that did not involve the earlier grants of new trials.