Coal Resources, Inc. v. Gulf & Western Industries, Inc.

RYAN, Circuit Judge,

concurring in part and dissenting in part.

The temptation is great to go along with an appellate judgment that, after three appeals, essentially affirms an $8.9 million jury verdict save for an ordered remittitur of $226,563. Unfortunately, in my judgment, the court’s decision to require the plaintiffs to accept a remittitur or endure a fourth trial is mistaken.

*1270The court’s decision to reject Stonie Barker’s expert opinion testimony because he “was not qualified to testify concerning the cost of constructing a coal preparation plant,” suggests a misunderstanding of the record and, respectfully, a misunderstanding of the correct application of Fed. R.Evid. 702 and 703.

I.

The standard of review of a trial court’s decision to admit expert opinion testimony under Fed.R.Evid. 702 is whether the trial court abused its discretion. Mannino v. Intern. Mfg. Co., 650 F.2d 846 (6th Cir.1981). We are not free to substitute our judgment for the district court’s concerning the expert’s qualification if there is any evidence in the record to support the trial court’s ruling that the witness was qualified under Fed.R.Evid. 702 to render the proffered opinion.

The asserted “factual” bases for the majority’s conclusion that Barker was not qualified to estimate the cost of building a coal preparation plant are (1) that Barker, while qualified to testify concerning the type of preparation plant necessary, had no personal knowledge of the cost of a preparation plant, (2) that he merely relied upon the opinion of others for the “design and cost estimates for the plant,” and (3) that he “supplied no records or documentation to support the cost estimates.... ” There is evidence in the record, however, that contradicts each of those three conclusions.

The “legal” basis for the majority’s conclusion that Barker’s opinion was inadmissible is the court’s understanding of Fed. R.Evid. 702. Properly applied, however, Rule 702, in conjunction with Rule 703, does not preclude Barker’s opinion, and that is so even if the majority’s three mistaken factual conclusions were correct.

II.

To appreciate the bases upon which the district court, in the exercise of its discretion, determined that Barker was qualified, it is necessary to recall that the purpose of his testimony was to describe a hypothetical diligent mining plan and, in doing so, to express an opinion as to the net profit such a plan, if executed, would likely accrue to CRI. Barker’s opinion was the heart of CRI’s case. The cost of the coal preparation plant was merely one component, and mathematically a relatively minor one at that, of Barker’s diligent mining plan.

The detailed numbers that comprise this plan are found in plaintiffs’ Exhibit 1113, a fourteen-page report Barker prepared in September 1989. In that report, Barker analyzed the cost of necessary capital improvements, the cost of operating the mines, the level of production, and the sales price of the coal that would be extracted; all component parts of Barker’s opinion of what would constitute a diligent mining plan. Based upon this plan, Barker determined that the amount due CRI if G & W had diligently mined the land in question was $8,999,541.89. If that number sounds familiar, it should; it is the precise amount the jury awarded CRI.

As part of his opinion, Barker included, among other things, cost estimates of the necessary capital improvements. These cost estimates appear in a schedule of depreciation on the capital improvements necessary to the mining plan. One such improvement was the new coal preparation plant which Barker initially estimated would cost $1.3 million and later estimated would cost $1.2 million.

The majority’s first criticism of Barker’s testimony is that Barker was not qualified, based on his prior experience, to express an opinion about the cost of a preparation plant. This conclusion ignores the relevant portions of Barker’s testimony. Barker testified:

During the years I was with Island Creek, we projected and built, constructed and built probably a dozen or more preparation plants and probably a dozen or more modifications in other plants.... We built new plants, a dozen or more new plants from scratch. I reviewed plans, budgets, capital, money received to do these things.

(Emphasis added.) Barker continued, reaffirming his central role in the development of Island Creek’s coal preparation plants: “I approved the plans for doing so and the money it took required to do them.”

In support of its conclusion that Barker was not qualified, the majority opinion quotes a portion of Barker’s testimony, apparently seeking to prove that Barker merely rubber-stamped plant proposals submitted to him. According to the majority opinion, Barker stated:

I had people on the staff who could make analysis of the kind of preparation plant *1271you want for a given set of conditions, and of course they would submit their plans and the capital budget to me.

Barker’s complete answer, however, part of which is omitted from the majority opinion is, as follows:

... and of course they would submit the capital budget to me and I would either agree or disagree with them on them.

(Emphasis added.)

Indisputably, Barker’s testimony as to his experience at Island Creek is evidence in the record that supports the trial court’s judgment that the witness was qualified under the terms of Fed.R.Evid. 702 to render the proffered opinion. During his years as president of Island Creek, Barker acquired the “knowledge, skill, experience, [and] training” to evaluate the proper cost of a preparation plant. While G & W attempted, upon cross-examination and otherwise, to contradict that testimony, the trial court, manifestly relying on the witness’ statement that he had the skill and experience to render such an opinion, found that foundation legally adequate and permitted the witness to give his opinion. Because there is a basis in the record for the trial court’s conclusion that Barker was qualified to render the opinion, this court is not free to find otherwise, and is not justified in finding, as it has, that the district court abused its discretion in allowing Barker to express his opinion.

The majority’s second criticism of Barker’s testimony is that he relied on others for his estimate of the plant cost. This conclusion is mistaken. Barker testified as to how he arrived at the $1.3 million figure:

[Q.] And last September, on a version that had a date September 26, 1989, the $1,300,000 figure was shown for the prep plant?
A. Yes.
Q. Where did that figure come from at that time?
A. It came from me.
Q. Was it a figure that you had developed on your own or had, you developed, it through conversations with other people?
A. I had to develop that figure. I developed it on my own. But there is no way I could remember what all the prices, the construction prices and the prices for the tills were when I put that together, and I had to use — I had to call. I made a lot of calls to different people to find out what construction costs were, the price of materials, what these screens, the items on the plant, but I’m the one that’s responsible for putting the 1.3 million on it.

(Emphasis added.)

Barker’s testimony, “I had to develop that figure. I developed it on my own,” should have been the beginning and the end of this court’s inquiry into whether the district court abused its discretion in allowing Barker to express an opinion as to the estimated cost of the preparation plant. To be sure, Barker testified that he consulted at least five people to “confirm” the cost of various components of the coal preparation plant. He was emphatic, however, that the estimate was his. The determination of the credibility of Barker’s statement, in light of all the evidence, was for the trial court, not this court.

Two months before trial, Barker made a second estimate of the cost of the coal preparation plant which he reduced to writing in a document entitled “Capital Cost Estimate for Preparation Plant and Surface Facilities.” Exhibit 1114. This second estimate fixes the preparation plant cost at $1.2 million. As to this new revised estimate, Barker testified as follows:

Q. Well, my question, Mr. Barker, was, when did you finalize your opinion on those costs figures as they appear on Exhibit 1114?
A. I’m going to say June or July. The final costs there and I had $91,000 left over and I just put it in as a contingency and the number 2,175,000 is what I used in earlier estimates.
Q. Now, on the black box itself, you’ve got what figure down on your 1114?
A. 1,200,000.

Barker then explained the difference between his two estimates:

Q. The last page of your computer printout mine plan [Ex. 1113]. I think is the capital cost, page 14?
A. Yes, it is a million, three and it’s one of the earlier estimates I made that I said that I ballparked, and when I got the final fine tuning I made the adjustments, and I’m the one that’s responsible for putting the 1,200,000 and I had about 100,000 left and there is 91,000 showing there as the contingency and the capital *1272cost, and I kept it in the capital account and didn’t change the overall totals.

The majority apparently misunderstood one aspect of this “fine tuning” when it concluded that Barker relied on others for his estimate. The “fine tuning” involved getting a “turnkey cost estimate” for the plant from a consultant, Richard Terry. Barker testified that he sought Terry’s opinion concerning the design and the turnkey costs of the plant in order “to confirm” Barker’s own estimate of the cost. Barker testified:

(Emphasis added.)

The black box itself, the final costs was done by Richard Terry. He confirmed. I had originally ballparked it. He confirmed what the turnkey cost was.

(Emphasis added.)

The court’s conclusion ignores Barker’s testimony that he supplied Terry with the data to enable Terry to produce a schematic design of Barker’s conception of the preparation plant and a confirming estimate of the total capital improvements cost. Barker testified:

I told him the kind of plant I wanted and I said I wanted two heavy media cyclones and related facilities to go into it.... [H]e positioned them, put them in the circuits and put it together. I didn’t tell him how to design it.

Despite Barker's testimony that he developed his initial estimate on his own and that he did not seek Terry’s opinion until July 1990, immediately before trial, and then merely “to confirm” what Barker himself had “ballparked,” the majority opinion holds that “[Barker] relied on others for the design and cost estimates for the plant.” Plainly, that appellate finding of fact rejects Barker’s testimony and the district court’s implicit finding that Barker’s testimony supplied a valid basis for his qualifications to render opinion testimony.

The majority’s third criticism is that Barker produced no documentation for his estimate. This criticism too is contradicted by the record. Barker produced several documents to support his estimate, two of which were created by Terry: the first was a letter describing the “Flowsheet Design Data” Terry used in his estimates of “the turnkey cost to design, engineer, fabricate, erect, and commission a heavy media coal preparation plant” — a cost he estimated at $1,430,5001 — and the second is a schematic flowsheet depicting the circuitry of the preparation plant. Both documents were received in evidence as plaintiffs’ Exhibits 1119 and 1115, respectively. In addition to these documents, Barker also produced Exhibit 1113, his fourteen-page report, and Exhibit 1114, a breakdown of the costs for new mine facilities.2

Thus, it ought to be indisputable that Barker testified 1) that he was qualified to estimate the cost of a coal preparation plant; 2) that he did so tv/ice in connection with the diligent mining plan he developed for this case; 3) that his estimate of the cost of the plant was documented in Exhibits 1113 and 1114; and 4) that the cost estimates made by the consultant Terry (Exhibit 1119) were made nearly a year after Barker’s original estimate and, indeed, were made at Barker’s request.

On such a record, it cannot fairly be said, unless this court substitutes its credibility determinations for those of the trial judge, that the trial judge abused his discretion in finding, as a threshold matter under Fed. R.Evid. 104(a), that Barker was qualified to express his opinion on the cost of a coal preparation plant.

III.

*1273But even if the record did not demonstrate that Barker was qualified to estimate the cost of the coal preparation plant, his opinion of what constituted a diligent mining plan, of which the preparation plant was merely one component, was nevertheless admissible.

Federal Rule of Evidence 703 states:

Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

The admissibility of an expert’s opinion under Fed.R.Evid. 703 does not depend upon the witness having personal knowledge concerning the details of every constituent element of the opinion. For example, a physician’s expert opinion concerning the permanency of a bodily injury is not inadmissible because the physician relies for his opinion upon the opinion of a radiologist as to the significance of what the radiologist finds in an x-ray, or upon the opinion of a pathologist as to the significance of tissue deterioration, or upon the rehabilitation therapist’s opinion as to the likelihood of full restoration of the use of a limb. See Forrestal v. Magendantz, 848 F.2d 303, 306 (1st Cir.1988).

Rule 703 provides that “[t]he facts or data ... upon which an expert bases his opinion ... may be those perceived by or made known to the expert at or before the hearing_” and need not be in evidence. In rendering an opinion, an expert may rely entirely upon hearsay data supplied by consultants, providing the data supplied is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject....”

Manifestly, the former chief executive officer of one of the nation’s largest coal mining companies, experienced in supervising the design and construction of approximately a dozen coal preparation plants, when asked to render an opinion concerning the elements of a diligent mining plan and the net profit it was likely to generate, was entitled to utilize, as part of the basis for his opinion, the judgment of others as to the cost of one of the elements of that plan — the preparation plant. There is not a hint of evidence in the record that a chief executive officer of a major mining company, even if he did not personally know the estimated cost of a coal preparation plant, would not typically and reasonably rely upon the opinion of others concerning the cost of constituent parts of the plan in forming an ultimate opinion as to a diligent mining plan and the profits it was likely to produce.

In extracting from Barker’s diligent mining plan opinion a single constituent component of that opinion, the cost of the coal preparation plant, and invalidating that component of the witness’ opinion, the majority misapprehends the purpose of expert testimony under Fed.R.Evid. 702 and the legitimate basis for it under Fed.R.Evid. 703.

IV.

For the foregoing reasons, the court’s implicit finding that the district court abused its discretion in allowing the witness Barker to express an expert opinion on the cost of the coal preparation plant is contrary to the facts in the record and the provisions of the Federal Rules of Evidence. I must therefore dissent from parts III-G and V of the court’s opinion. I concur, however, in the balance of what is written.

I would therefore affirm the judgment in all respects.

Order

April 22, 1992.

Before: KENNEDY, RYAN and BOGGS, Circuit Judges.

The parties in this case seek clarification of this Court’s January 29, 1992 opinion as it relates to the award of post-judgment interest. The trial court’s judgment, entered October 2, 1990, awarded Coal Resources $8,999,542 in damages. The trial court denied a motion by the plaintiffs for interest prior to the October 2, 1990 judgment. In its appeal of the District Court’s decision, Coal Resources contended that the court erred in failing to award interest prior to October 2, 1990. We held:

The District Court denied a motion by the plaintiffs for an award of interest on the damage verdict. This Court can reverse this decision only if it finds an abuse of discretion. Coal Resources, *1274[Inc. v. Gulf & Western Indus. Inc., 865 F.2d 761, 776 (6th Cir.1989) ]. We find no such abuse.

We remanded the case for a new trial unless Coal Resources agreed to a remittitur of $226,563 of the damages awarded. Coal Resources consented to the remittitur on January 30, 1992. The parties disagree whether interest on the reduced damages should run from October 2, 1990 or January 30, 1992.

The determination of when interest begins to accrue on a money judgment is based on 28 U.S.C. § 1961 which states:

Interest shall be allowed on any money judgment in a civil case recovered in a district court.... Such interest shall be calculated from the date of the entry of the judgment....

The question in this case is whether the October 2, 1990 judgment, or the acceptance of the remittitur by the plaintiffs on January 30, 1992, thereby fixing the amount of actual damages, should be considered the date of judgment from which interest is calculated. This Court has held previously that the question of which judgment should be used to trigger interest is a matter of federal law. Bailey v. Chattem, Inc., 838 F.2d 149, 152 (6th Cir.), cert. denied, 486 U.S. 1059, 108 S.Ct. 2831, 100 L.Ed.2d 931 (1988).

The Supreme Court addressed a similar situation in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990). Bonjorno had brought suit against Kaiser alleging that Kaiser had monopolized the market for aluminum pipe. The jury found for Bonjorno and awarded damages on August 22, 1979. The District Court found the judgment unsupported by the evidence and ordered a new trial on the issue of damages. A judgment was entered on December 4, 1981, based on a jury award for Bonjorno of over $9 million in damages. The District Court granted a partial judgment notwithstanding the verdict. The Court of Appeals reinstated the December 4, 1981 judgment in 1986. The Supreme Court held that interest should be calculated from December 4, 1981 rather than August 22, 1979, the date of the legally insufficient judgment. The Court stated:

“[T]he purpose of postjudgment interest is to compensate the successful plaintiff for being deprived of compensation for the loss from the time between the ascertainment of the damage and the payment by the defendant.” Poleto v. Consolidated Rail Corp., 826 F.2d [1270, 1280 (3d Cir.1987)]. Where the judgment on damages was not supported by the evidence, the damages have not been “ascertained” in any meaningful way. It would be counterintuitive, to say the least, to believe that Congress intended postjudgment interest to be calculated from such a judgment.

Bonjorno, 494 U.S. at 835-36, 110 S.Ct. at 1576.

This Circuit has decided one related case since the Bonjorno decision. In Arthur S. Langenderfer, Inc. v. S.E. Johnson, Co., 917 F.2d 1413 (6th Cir.1990), cert. denied, — U.S. —, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991), a paving contractor brought an antitrust action against several road construction companies. Following a jury trial, the trial court entered judgment in accordance with the verdict and trebled the damages found by the jury. In a previous appeal, this Court vacated the first judgment and remanded the case finding that appropriate legal standards had not been applied. Arthur S. Langenderfer v. S.E. Johnson Co., 729 F.2d 1050 (6th Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 510, 83 L.Ed.2d 401 (1984). The plaintiff then appealed the judgment from the second trial. We held that,

[ujpon a thorough consideration of the action of the district court with respect to disallowance of postjudgment interest claim by Langenderfer and NOAP on the original Langenderfer I award, we find no error in the district court’s handling of this issue. The district court’s decision not to allow interest on the judgment vacated in Langenderfer I is, we believe, clearly supported by the Supreme Court’s recent decision in [Bonjorno.]

Langenderfer, 917 F.2d at 1447.

We believe that the case at issue can be distinguished from both Bonjorno and Langenderfer. The Supreme Court, in its decision in Bonjorno, stated that interest should accrue from the date of the second judgment because only at that point were damages “ascertained in any meaningful way.” 494 U.S. at 836, 110 S.Ct. at 1576 (emphasis added). In both Langenderfer and Bonjorno the previous damage award was set aside and the District Court was directed to hold a new trial on the issue of *1275damages. Here, the damages awarded to Coal Resources, were sufficiently ascertained at the time of the District Court judgment. The remittitur merely reduced the damages by a distinct amount easily determined from the facts of the case. Rule 37 of the Federal Rules of Appellate Procedure provides:

If a judgment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to the allowance of interest.

In light of this rule, we ORDER that interest on the damages awarded in this case be calculated from the date of the original District Court judgment, October 2, 1990.

. Although Terry’s figure is higher than both of Barker’s estimates, Barker explained how it confirmed Barker’s own estimates:

[Q.] [C]ould you just tell the ladies and gentlemen how the information he gave you corroborated the cost of the new coal washing facility?
A. Well, it is very similar to the cost that I used. I used an estimate of a million, two, and in 1976, and it is very close to what I have used.
Q. Is the figure that he provided lower or higher than yours looking at it from the point of view of 1976?
A. It is higher than the number I used, but it’s his — his is in 1990 dollars.
Q. And you took it down to 1976 dollars?
A. Yes, I took it back to 1976 dollars.

. It is understandable that the majority mistakenly concludes that "Barker supplied no records or documentation....” Exhibits 1114, 1115, and 1119, despite their importance to the issue now being considered, are not included in the 4900 plus page Joint Appendix. They are, however, in the trial record, and Exhibit 1113 is in the Joint Appendix.