Hoult v. Hoult

June 27, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2034

JENNIFER HOULT,
Plaintiff - Appellee,

v.

DAVID P. HOULT,
Defendant - Appellant.

ERRATA SHEET

The opinion of this Court issued on May 22, 1995, is amended
as follows:

Replace the second full paragraph on page 9 with the

following: "In any case, we need not at this time determine the

precise contours of the district court's responsibility under
Daubert. The gravamen of defendant's argument is that the

district court wrongly decided a point of law. This is not
grounds for relief under Rule 60(b). See Silk v. Sandoval, 435

F.2d 1266, 1267-68 (1st Cir.), cert. denied, 402 U.S. 1012

(1971). See also Rodr guez Antuna v. Chase Manhattan Bank Corp.,

871 F.2d 1, 2 (1st Cir. 1989). We conclude that the district
court's admission of the expert testimony, even if error -- as to
which we express no opinion -- was not a "mistake," as we have
defined that term under Rule 60(b)(1). See Silk, 435 F.2d at

1267-68. See also Rodr guez Antuna, 871 F.2d at 2; Scola v. Boat

Frances, R., Inc., 618 F.2d 147, 153-54 (1st Cir. 1980)."

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2034

JENNIFER HOULT,

Plaintiff - Appellee,

v.

DAVID P. HOULT,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Chief Judge,

Aldrich, Senior Circuit Judge,

and Stahl, Circuit Judge.

Edward J. Collins for appellant.

Kevin P. O'Flaherty, with whom Adrienne M. Markham and

Goulston & Storrs were on brief for appellee.

May 22, 1995

TORRUELLA, Chief Judge. Plaintiff-appellee, Jennifer
TORRUELLA, Chief Judge.

Hoult, brought suit against her father, defendant-appellant,

David Hoult, in the United States District Court for

Massachusetts alleging, inter alia, assault and battery, and

intentional infliction of emotional distress. A jury returned a

verdict in the amount of $500,000 for plaintiff. Defendant filed

timely appeals -- first, of the denial of his motion for a

mistrial and, second, of the jury verdict -- both of which were

ultimately dismissed by this court for lack of prosecution. One

year after judgment issued, defendant filed a motion for relief

from judgment pursuant to Rule 60(b) of the Federal Rules of

Civil Procedure. Defendant appeals the district court's denial

of that motion. For the reasons stated herein, we affirm.

BACKGROUND
BACKGROUND

Plaintiff commenced this action in July 1988 alleging,

among other things, that from the time she was approximately four

years old until she was approximately sixteen years old defendant

sexually abused and threatened her. Plaintiff alleged that she

had repressed all memory of the abuse until she began to

recapture those memories during therapy sessions in October 1985,

when she was twenty-four.

On February 2, 1993, the parties presented the case at

a summary jury trial. Counsel for both parties outlined for the

summary jury the evidence they expected to present at trial. The

presentation by plaintiff's counsel included a summary of the

expected testimony of, among others, the plaintiff, her former

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therapist, Eileen Jacobsen ("Jacobsen"), and her examining

psychiatrist, Dr. Renee Brant ("Dr. Brant"). Defense counsel

presented no expert testimony, relying instead on defendant's

general denial of the charges and a refutation of the testimony

of Jacobsen and Dr. Brant. Defendant prevailed on the merits at

the summary jury trial.

On June 24, 1993, the case went to trial. It was tried

for eight days. Both Dr. Brant and Jacobsen testified for the

plaintiff. On July 1, 1993, the jury returned a verdict in favor

of the plaintiff in the amount of $500,000. On July 14, 1993,

the district court entered judgment in the case. Defendant moved

for a new trial, and that motion was denied in August 1993.

Defendant appealed both the denial of his motion for a new trial

and the judgment. Both appeals were ultimately dismissed by this

court for lack of prosecution.

On July 14, 1994, exactly one year from the date of

judgment, defendant, through new counsel, filed a motion to

vacate the judgment. The district court denied the motion to

vacate in a detailed opinion delivered from the bench at the

conclusion of a hearing on defendant's motion. This appeal

followed.

DISCUSSION
DISCUSSION

Defendant asserts essentially four grounds for relief

from judgment under Rule 60(b).1 We address each of these

1 Rule 60(b) provides, in pertinent part:

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arguments seriatim below. We note at the outset that district

courts enjoy broad discretion in deciding motions brought under

Rule 60(b), and we review such rulings only for abuse of that

discretion. See Cotto v. United States, 993 F.2d 274, 277 (1st

Cir. 1993); Teamsters, Chauffeurs, Warehousemen & Helpers Union,

Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir.

1992). In addition, our review is limited to the denial of the

motion itself. We may not consider the merits of the underlying

judgment. Ojeda-Toro v. Rivera-M ndez, 853 F.2d 25, 28 (1st Cir.

1988). Finally, we note that "Rule 60(b)(6) may not be used as a

back-door substitute for an omitted appeal, and, in all but the

most exceptional circumstances, a party's neglect to prosecute a

timeous appeal will bar relief under the rule." Cotto, 993 F.2d

at 278.

On motion and upon such terms as are
just, the court may relieve a party or a
party's legal representative from a final
judgment, order, or proceeding for the
following reasons: (1) mistake,
inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence
which by due diligence could not have
been discovered in time to move for a new
trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic
or extrinsic), misrepresentation, or
other misconduct of an adverse party; (4)
the judgment is void; (5) the judgment
has been satisfied, released, or
discharged, or a prior judgment upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application; or (6) any other
reason justifying relief from the
operation of the judgment.

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I.
I.

Defendant's primary contention is that the trial judge

erred in allowing plaintiff's expert witness, Dr. Brant, to

testify with respect to the phenomenon of repressed memory in the

context of childhood sexual abuse. Defendant contends that this

constitutes "mistake, inadvertence, surprise, or excusable

neglect" within the meaning of Rule 60(b)(1).

With respect to her qualifications as an expert in the

areas of general psychiatry, child psychiatry, and childhood

sexual abuse, Dr. Brant testified that she: is a graduate of the

Harvard Medical School; has a private psychiatric practice; was a

founder of the sexual abuse unit at Children's Hospital; holds a

joint appointment as an instructor of medical students at

Children's Hospital and Harvard Medical School; serves as a

consultant on the treatment of children who have been sexually

abused; has lectured widely on the issue of the treatment and

diagnosis of children who have suffered sexual abuse; and has

served as an expert witness in several other actions.

Dr. Brant testified generally at trial with respect to

the psychological dynamics and clinical profiles of victims of

childhood sexual abuse, and also about the phenomenon of

repressed memory of traumatic events. She further testified

that, based on her clinical evaluation of the plaintiff, there

"was a lot of correlation" between the plaintiff's "clinical

presentation" and the clinical profile of a childhood sexual

abuse victim.

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At no time before or during either the summary jury

trial or the actual jury trial did defendant object to either Dr.

Brant's qualifications as an expert witness or her testimony in

general. Nor did defendant present any expert testimony of his

own. Instead, defense counsel vigorously cross-examined Dr.

Brant, regarding both her theories and techniques in general, and

her application of those theories and techniques to her

evaluation of the plaintiff. Defense counsel also challenged Dr.

Brant's testimony with specific articles and studies by academics

and other mental health professionals. The defendant was the

only witness to testify for the defense. The defense used

essentially the same strategy at trial that it successfully used

at the summary jury trial.

Rule 103(a) of the Federal Rules of Civil Procedure

provides that a claim of error may not be predicated on the

admission of evidence unless it affects a substantial right of

the party and a timely objection is made. Defendant nonetheless

argues that the Supreme Court's recent decision in Daubert v.

Merrell Dow Pharmaceuticals, Inc., U.S. , 113 S. Ct. 2786

(1993), requires the district court to make a sua sponte ruling

on the admissibility of expert testimony. Defendant bases this

argument on the following language from Daubert:

[U]nder the [Federal Rules of Evidence],
the trial judge must ensure that any and
all scientific testimony or evidence
admitted is not only relevant, but
reliable.

The primary locus of this obligation
is Rule 702, which clearly contemplates

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some degree of regulation of the subjects
and theories about which an expert must
testify. . . . The subject of an
expert's testimony must be "scientific .
. . knowledge." The adjective
"scientific" implies a grounding in the
methods and procedures of science.
Similarly, the word "knowledge" connotes
more than subjective belief or
unsupported speculation. . . . In short,
the requirement that an expert's
testimony pertain to "scientific
knowledge" establishes a standard of
evidentiary reliability. . . .

. . .

Faced with a proffer of expert
testimony, then, the trial judge must
determine at the outset, pursuant to
Rule 104(a), whether the expert is
proposing to testify to . . . scientific
knowledge. . . .

Daubert, 113 S. Ct. at 2795.2

The district court rejected defendant's interpretation

of Daubert, primarily because it is inconsistent with Rule

103(a). The position of the district court is consistent with

the one federal appeals court decision we found addressing this

2 Rule 702 provides: "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."

Rule 104 (a) provides: "Preliminary questions concerning the
qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be determined
by the court, subject to the provisions of subdivision (b)
[pertaining to conditional admissions]. In making its
determination it is not bound by the rules of evidence except
those with respect to privileges."

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issue. See McKnight v. Johnson Controls, Inc., 36 F.3d 1396,

1407 (8th Cir. 1994).

Although we agree with the result reached by the

district court, we take a somewhat different view of Daubert. We

think Daubert does instruct district courts to conduct a

preliminary assessment of the reliability of expert testimony,

even in the absence of an objection. We do not think, however,

that district courts are required, sua sponte, to make explicit

on-the-record rulings regarding the admissibility of expert

testimony. The reasoning of the Second Circuit in a somewhat

analogous case is instructive in this regard.

The two defendants in United States v. Locascio, 6 F.3d

924 (2d Cir. 1993), argued that a district court admitting expert

testimony based on inadmissible evidence pursuant to Rule 703 of

the Federal Rules of Civil Procedure must make an explicit

finding with regard to the trustworthiness of the underlying

sources of information upon which the expert relied. The court

rejected this argument, stating:

We decline, however, to shackle the
district court with a mandatory and
explicit trustworthiness analysis. The
district judge, who has the ideal vantage
point to evaluate an expert's testimony
during trial, already has the authority
under Fed. R. Evid. 403 to conduct an
explicit trustworthiness analysis should
she deem one necessary. In fact, we
assume that the district court
consistently and continually performed a
trustworthiness analysis sub silentio of

all evidence introduced at trial. We
will not, however, circumscribe this
discretion by burdening the court with

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the necessity of making an explicit
determination for all expert testimony.

Locascio, 6 F.3d at 939 (citations omitted).

We think Daubert and Rule 104(a) place some burden on

the district court judge to make preliminary evaluations with

respect to the reliability of evidence, but we decline to

"shackle the district court with a mandatory and explicit"

reliability analysis. Rather, we assume that the district court

performs such an analysis sub silentio throughout the trial with

respect to all expert testimony.

In any case, we need not at this time determine the

precise contours of the district court's responsibility under

Daubert. The gravamen of defendant's argument is that the

district court wrongly decided a point of law. This is not

grounds for relief under Rule 60(b). See Silk v. Sandoval, 435

F.2d 1266, 1267-68 (1st Cir.), cert. denied, 402 U.S. 1012

(1971). See also Rodr guez Antuna v. Chase Manhattan Bank Corp.,

871 F.2d 1, 2 (1st Cir. 1989). We conclude that the district

court's admission of the expert testimony, even if error -- as to

which we express no opinion -- was not a "mistake," as we have

defined that term under Rule 60(b)(1). See Silk, 435 F.2d at

1267-68. See also Rodr guez Antuna, 871 F.2d at 2; Scola v. Boat

Frances, R., Inc., 618 F.2d 147, 153-54 (1st Cir. 1980).

Defendant also asserts, in a similar vein, that Local

Rule 26.4(A) of the United States District Court for the District

of Massachusetts requires the trial judge to make a sua sponte

ruling on the admissibility of expert testimony. This argument

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lacks merit. Local Rule 26.4(A) provides that, "[a]t the final

pretrial conference, the judge shall consider: . . . making a

ruling on the admissibility of expert testimony at the trial."

The plain language of this rule merely requires the district

court to consider making a ruling on the admissibility of expert

testimony; it does not require the court to make such a ruling.3

II.
II.

Defendant's second contention is that an article

entitled The Reality of Repressed Memories, by Elizabeth Loftus,

which was published one month before trial, constitutes "newly

discovered evidence" within the meaning of Rule 60(b)(2). Rule

60(b)(2) gives the district court discretion to vacate a judgment

based upon "newly discovered evidence which by due diligence

could not have been discovered in time to move for a new trial

under Rule 59(b)." The article critically examines and questions

the reliability of repressed memories, particularly in the

context of childhood sexual abuse allegations. Defendant

3 Defendant also asserts that his trial counsel's decision not
to present expert testimony in his case-in-chief, or object to
the testimony of Dr. Brant, was a "mistake" or "inexcusable
neglect" within the meaning of Rule 60(b)(1). We have repeatedly
held that "the acts and omissions of counsel are customarily
visited upon the client in a civil case." Cotto, 993 F.2d at 281

(citing Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962));

see also United States v. One lot $25,721.00 in Currency, 938

F.2d 1417, 1421 (1st Cir. 1991); Ojeda-Toro, 853 F.2d at 30. The

principle carries particular force in this case because the very
defense strategy defendant now objects to was used successfully
by defense counsel at the summary jury trial. Thus, not only was
defendant fully aware of his counsel's strategy, but presumably
he was satisfied with the result at the summary jury trial. We
find no justification for departing from the general rule that a
defendant is bound by the acts and omissions of his attorney.

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maintains that the article could have been used at trial to

challenge the testimony of Dr. Brant.

Defendant's motion to vacate the judgment under Rule

60(b)(2) fails. Because Rule 60(b)(2) is aimed at correcting

erroneous judgments based on the unobtainability of evidence, the

burden is on the party presenting the new evidence to demonstrate

that the missing evidence was "'of such a material and

controlling nature as [would] probably [have] change[d] the

outcome.'" Anderson v. Cryovac, Inc., 862 F.2d 910, 924 n.10

(1st Cir. 1988) (quoting 7 J. Moore & J. Lucas, Moore's Federal

Practice 60.23[4] at 60:201-02 (2d ed. 1985) (footnote

omitted)); see also Federal Deposit Ins. Corp. v. La Rambla

Shopping Cntr., 791 F.2d 215, 223-24 (1st Cir. 1986); Bradley

Bank v. Hartford Assurance & Indem. Co., 737 F.2d 657, 662 (7th

Cir. 1984). Defendant has failed to demonstrate that the

opinions expressed in the pertinent article would probably have

changed the outcome of the trial. Indeed, the article is

equivocal when it comes to the validity of repressed memories.4

Its central thesis is simply that more research needs to be done

and therapists need to be more cognizant of the possibility that

they are "suggesting" childhood sexual abuse. This is hardly the

sort of extraordinary "new evidence" contemplated by Rule

60(b)(2).

4 For example, in her concluding remarks the author notes that
"[d]espite lack of corroboration, some of these recollections
could be authentic. Others might not be."

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III.
III.

Defendant next contends that the judgment in this case

is "void" within the meaning of Rule 60(b)(4). We have explained

that "[a] judgment is void, and therefore subject to relief under

Rule 60(b)(4), only if the court lacked jurisdiction or in

circumstances in which the court's action amounts to a plain

usurpation of power constituting a violation of due process."

United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st

Cir. 1990) (citation omitted). A judgment is not void simply

because it is or may have been erroneous; it is void only if,

from its inception, it was a legal nullity. Id. at 661; Lubben

v. Selective Serv. Sys. Local Board No., 453 F.2d 645, 649 (1st

Cir. 1972). "In the interests of finality, the concept of void

judgments is narrowly construed." Id. at 661 (quoting United

States v. Berenguer, 821 F.2d at 22).

Defendant contends that Dr. Brant "usurped the function

of the jury" by opining on the plaintiff's credibility.

Defendant maintains that admission of this testimony at trial

amounted to a violation of due process, and therefore that the

judgment is void under Rule 60(b)(4).

Dr. Brant testified that one of the clinical factors

involved in her evaluation of sexual abuse patients concerns the

potential for fabrication -- specifically, whether the patient

indicates a motivation to fabricate the claims of sexual abuse.

When asked whether she developed any opinion with respect to her

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evaluation of the plaintiff in conjunction with the fabrication

factor, Dr. Brant testified, without objection, as follows:

So to the extent that her feelings about
her father were so complex, I think in a
situation of fabrication or false
allegation what I might expect is someone
who is angry, vengeful, wants to out and
destroy someone, and this is the means
they will use to do it. I didn't see
that at all with Ms. Hoult. . . .

. . . I suppose one of the motivations
when someone is involved in civil
litigation, and you are looking for -- to
see money for damages -- is that you try
to build as big a case as you can about
how much pain and suffering you are in.
Well, here she was telling me about . . .
many ways in which she was feeling much
better. . . . So I thought about that
and considered that in relationship to
false allegation and fabrication. I felt
there was less indication of that. . . .

It is the function of the jury alone to evaluate the

credibility of a witness. This principle carries particular

importance in a case, such as this one, where the witness is the

alleged victim and a party to the lawsuit. When an expert

witness testifies with respect to the credibility of a

victim/witness there is a real danger that jurors will lend too

much credence to the expert's evaluation of the victim's

credibility, at the expense of their own independent judgment of

credibility. See United States v. Rosales, 19 F.3d 763, 766 (1st

Cir. 1994) ("proffered expert testimony [c]ould create a

substantial danger of undue prejudice . . . because of its aura

of special reliability and trustworthiness") (quoting United

States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)).

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We addressed this issue recently. In Rosales, the

defendant argued on appeal that a portion of the government's

expert testimony should have been excluded because it improperly

bolstered the testimony of the alleged sexual abuse victims. The

expert testified that children generally "tend to be reluctant,

they tend to be embarrassed, uncomfortable, ashamed of what

happened. They're very uncomfortable giving details. I see a

lot of that. And I saw that in these children." Id. at 765. We

concluded that the expert testimony in question "sent an implicit

message to the jury that the children had testified truthfully,

and this might therefore have interfered with the jury's function

as the sole assessor of witness credibility." We held, however,

that even if the probative value of the evidence was

substantially outweighed by the risk of unfair prejudice,5

admission of the evidence was not "plain error."6 Id. at 766.

We think Dr. Brant's testimony may have crossed the

line in commenting upon the plaintiff's credibility. Dr. Brant

did not limit her testimony to "psychological literature or

experience or to a discussion of a class of victims generally."

5 Relevant evidence is admissible unless its probative value is
substantially outweighed by the risk of unfair prejudice,
confusion, or waste of time. United States v. Argencourt, 996

F.2d 1300, 1305 (1st Cir. 1993); Fed. R. Evid. 403.

6 The defendant in Rosales had not objected to the proffered

testimony and, therefore, our review was confined to "plain
error" rather than abuse of discretion. Rosales, 19 F.3d at 765.

Because the defendant in the instant case did not properly appeal
the judgment, our review is even more strictly constrained -- we
review only for a "plain usurpation of power constituting a
violation of due process." See Boch Oldsmobile, 909 F.2d at 661.

-14-

See United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985),

quoted in Rosales, 19 F.3d at 765. Rather, she came perilously

close to testifying that this particular victim/witness could be

believed. See id. If defendant had properly objected to this

testimony at trial, and appealed a decision admitting the

testimony, we would be faced with a difficult decision. Because

the defendant in this case neither objected to Dr. Brant's

testimony, nor appealed its admission into evidence, however, we

review not for abuse of discretion or plain error, but only for a

"plain usurpation of the jury's function constituting a violation

of due process." Boch Oldsmobile, 909 F.2d at 661. "[O]nly

'rare instance[s] of a clear usurpation of power' will render a

judgment void." Id. at 662 (citation omitted). The testimony in

question did not rise to this level.

We base this conclusion on three factors. First,

Dr. Brant was subjected to rigorous cross examination by defense

counsel. In particular, defense counsel questioned Dr. Brant

with respect to several scholarly articles which contradicted or

called into question Dr. Brant's opinions concerning the

phenomenon of repressed memories in alleged childhood sexual

abuse cases. Second, defense counsel repeatedly attempted to

elicit opinion testimony from Dr. Brant that she believed the

plaintiff's allegations. Dr. Brant steadfastly refused to give

such an opinion, explicitly testifying: "I had no way of

ultimately determining whether they were true or not." Finally,

the district court instructed the jury as follows:

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You should consider each expert opinion
received in this case and give it such
weight as you may think it deserves. If
you should decide that the opinion of an
expert witness is not based upon
sufficient education and experience, or
if you should conclude that the reasons
given in support of the opinion are not
sound, or if you feel that it is
outweighed by other evidence, you may
disregard the opinion entirely.

Thus, the jury was presented with evidence

contradicting or calling into question Dr. Brant's opinions, Dr.

Brant herself testified that she had no way of knowing whether

the plaintiff's allegations were true, and the court expressly

instructed the jurors that they were free to reject the opinions

offered by Dr. Brant. Cf. Rosales, 19 F.3d at 766. Under the

circumstances, we conclude that Dr. Brant's testimony did not so

plainly usurp the function of the jury as to constitute a

violation of due process.

Defendant also contends that plaintiff's therapist,

Jacobsen, was improperly allowed to provide expert testimony, and

that the jury was therefore "corrupted." Plaintiff maintains

that Jacobsen testified only as a fact witness. We have reviewed

Jacobsen's testimony and think that at certain points she went

beyond what is traditionally allowed for a fact witness.7

Again, however, defendant neither objected to Jacobsen's

testimony nor appealed its admission into evidence. Moreover,

while some of her testimony might have been objectionable, we do

7 For example, she was allowed to give her opinion that the
plaintiff "will always have to struggle with the damage that I
think was done."

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not think its admission was particularly prejudicial. We discern

no violation of due process.

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IV.
IV.

Defendant's final contention is that Judge Mazzone

failed to comply with the certification requirements of Rule 63

of the Federal Rules of Civil Procedure when he took over the

case for visiting Judge Van Sickle.8 Defendant contends that

this failure constitutes "mistake, inadvertence, surprise, or

excusable neglect" within the meaning of Rule 60(b)(1).

Just before the close of evidence, visiting Judge Van

Sickle informed counsel for both parties that, although he would

be able to hear the rest of the evidence in the case, he would be

unavailable for closing arguments, the jury charge, and jury

deliberations. The parties had already submitted proposed jury

instructions to Judge Van Sickle, and he discussed those

instructions with counsel. He informed counsel that he would

prepare jury instructions for his successor to use in charging

the jury. On June 30, 1993, Judge Mazzone held a lobby

conference with counsel to discuss his taking over the case. The

transcript of the June 30, 1993, lobby conference speaks for

itself.

THE COURT: You all, of course know
that this case was originally assigned to
me and then went to visiting Judge Van
Sickle, and because he is no longer
available and is unable to proceed, I am
stepping in. Now I know you know I've
done a lot of work in the case, but the

8 Rule 63 provides, in pertinent part: "If a trial or hearing
has been commenced and the judge is unable to proceed, any other
judge may proceed with it upon certifying familiarity with the
record and determining that the proceedings in the case may be
completed without prejudice to the parties."

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rules require me to certify that I am
familiar with the case, and I will so

certify my familiarity with the record in

the case. . . .

If you have any objections to that,
the case will not proceed. So, I am
calling upon you now to tell me what your
objections are. All I'm going to do is
hear closing statements. I have the
instructions that Judge Van Sickle and
you have worked out, and I will give
those to the jury. I have the jury form
which you have worked out and I will give
that. So my strong feeling is that we
should put this matter behind us, but if
you object to it, then I will have to get
the whole transcript and I will have to
read it.

PLAINTIFF'S COUNSEL: . . . We are
content that you're familiar enough with
the case and that this certification is
sufficient for us to proceed. . . .

DEFENSE COUNSEL: . . . We are also
content, with the request that we be
allowed to briefly read through this
[proposed jury instructions prepared by
Judge Van Sickle].

Defense counsel did not object to Judge Mazzone

finishing the case, and the transcript plainly indicates that

Judge Mazzone did certify his familiarity with the record.

Accordingly, defendant's claim fails.

V.
V.

As a final matter, we note that defendant makes a

general claim for relief under Rule 60(b)(6), asserting that "it

would be inequitable that the plaintiff continue to have the

benefit of a judgment obtained by what . . . is a manifest

miscarriage of justice." For the reasons previously stated

herein, we find no exceptional circumstances excusing defendant's

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failure -- on two separate occasions -- to prosecute his appeals

of this case.

CONCLUSION
CONCLUSION

The decision of the district court denying defendant's

motion to vacate the judgment in this case is affirmed.

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