Case Law

Question 1

Lakkaraju v. Edwards (1930)

Answer 1

(Nature and Elements of Negligence) Negligence refers to a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. Negligence usually consists of actions but can also involve the failure to act when there is some duty to act

Question 2

Bardhi v. Kroll (1955)

Answer 2

(Nature and Elements of Negligence) The elements of negligence are the following:
1. The existence of a legal duty owed by the defendant to the plaintiff
2. The defendants breach of that duty
3. Harm suffered by the plaintiff
4. Proof that the defendant’s breach was the direct and proximate cause if harm that the plaintiff suffered

Question 3

Venezia v. Chintakayala (1980)

Answer 3

(Nature and Elements of Negligence)
In a negligence case, a duty of care can arise in several circumstances. There is no exhaustive list, but the most common situations in which a defendant has a duty to act include:
1. The defendant created the risk which resulted in the plaintiff’s harm
2. The defendant volunteered to protect the plaintiff from harm
3. The defendant knew or should have known that their conduct would cause harm to the plaintiff
4. The business or voluntary relationship between the plaintiff and defendant creates a duty

Question 4

Belloncle v. Route II (1985)

Answer 4

(Nature and Elements of Negligence) Proving that the defendant owed a duty, or an admission from defendant that it owed a duty, is not enough to prevail in a negligence case. The plaintiff must also prove that the defendant breached their duty to the plaintiff. A defendant breached a duty by failing to act reasonable in fulfilling or attempting to fulfill the duty

Question 5

Ying v. Toussimehr (1990)

Answer 5

(Nature and Elements of Negligence) A defendant “fails to act reasonably” for the purposes of negligence liability if they have departed from the conduct expected of a reasonably prudent person acting under similar circumstances. The reasonableness test is an objective test - the specific abilities or traits of the defendant are irrelevant. Thus, even a person with low intelligence or who is chronically careless is held to the same standard as a more careful person or a person of higher intelligence.

Question 6

Banuelos Tellis Enterprises v. Sciarretti Kumar, Inc. (1991)

Answer 6

(Nature and Elements of Negligence)
Whether a given precaution is required in order to constitute reasonable care involves comparing the burden of taking the precaution (B) against the probability that harm will occur absent the precaution (P) and the nature and extent of foreseeable damage or injury if the harm materializes (L). A defendant who fails to take a given precaution has violated its duty of care in any situation where B<P x L.

Question 7

Smiles v. Based Pilots, Inc. (1992)

Answer 7

(Nature and Elements of Negligence)
Following a plane crash, the plaintiff sued the defendant corporation who owned the plane. The trial court dismissed the claims against defendant corporation for lack of duty on the grounds that the plan was flown by the corporation’s CEO for personal use. Plaintiff appealed. This Court overturns the trial court’s decision. In a case where a company’s plane is being operated but an agent, owner, representative, or employee of that company, public policy dictates that the company owes any passenger of that plane a duty of care.

Question 8

Louis-Ferdinand v. Allen (1993)

Answer 8

(Nature and Elements of Negligence) In deciding whether a defendant acted reasonably, the jury may take into consideration whether the defendant followed standards that are prevailing in the industry or complied with customs prevailing in the community. While such industry standards and community customs are relevant, they are not necessarily dispositive.

Question 9

Alwardi v. Subramaniam (1999)

Answer 9

(Nature and Elements of Negligence) A defendant is not absolved from liability by following industry standards or community customs if it was clear or should have been clear to the defendant that the defendant’s conduct or the particular situation was not contemplated by industry standards or by community customs

Question 10

Paul Dachtler LLC v. Joseph Comedy Club (2001)

Answer 10

(Nature and Elements of Negligence) While performing their opening act on stage, the owner of the defendant comedy club tripped over a microphone cord and fell into the crowd, injuring several audience members. The club owner claimed an inability to see the cord because the stage spotlight had impaired the owner’s vision. In affirming the trial court’s denial of summary judgement on plaintiff’s negligence claim, the court held that all persons are required to give their surroundings the attention that a reasonable person would give them under the circumstances, making due allowances for those things that would distract the attention or perception of a reasonable person

Question 11

Coughlin v. Kunde (2002)

Answer 11

(Nature and Elements of Negligence) In determining the standard of care applicable at law, consideration is permitted of some physical or mental qualities or characteristics of the particular actor in determining whether tortious conduct has occurred. Thus, persons suffering from a physical disability, such as complete or partial blindness, are held to reasonable care under circumstances that include blindness. Transitory loss of control, whether physical or mental, also may be considered to relieve the actor of liability

Question 12

Mayer v. Amare (2010)

Answer 12

(Nature and Elements of Negligence) It is well known that many activities involve certain predictable risks that are likely to arise during those activities. In determining whether an actor is to be excused for an error of judgement that occurs during a sudden emergency, courts must consider whether the emergency was of the sort that was predictable and thus could or should have been addressed by appropriate procedures or training

Question 13

Hopson v. Dawson (2012)

Answer 13

(Nature and Elements of Negligence) Under rare circumstances, it is reasonable to take actions that involve a high degree of risk of serious harm to others. For example, although it ordinarily would be negligent (and reckless) to drive more than 20 mph over the speed limit at night in the pouring rain, such conduct might be reasonable if the driver were carrying a desperately wounded friend to the hospital. There also may be situations where otherwise dangerous action may be better than no action at all, such as when a hiker without medical training finds a badly wounded person by the side of a remote trail and attempts to provide the sort of imperfect surgical aid that a layperson may give. The fact that an actor’s conduct was not negligent after an emergency has arisen, however, does not preclude liability if the actor’s own tortious conduct itself produced the emergency

Question 14

Scanlon v. Burnett (2012)

Answer 14

(Nature and Elements of Negligence) Individuals having superior skill or knowledge are required to conduct themselves consistent with such superior capacity. In the practice of a trade or profession, the standard of care is the skill and knowledge normally possessed by members of that trade or profession in good standing in similar communities.

Question 15

Allen v. Neptune Underwater Expedition (2013)

Answer 15

(Nature and Elements of Negligence) Members of certain trades or professions may possess different levels of skill and knowledge. For example, professional scuba divers possess greater skill and knowledge than amateur scuba divers. Consistent with Scanlon v. Burnett (2012), the standard of care in the practice of a trade or profession is the skill and knowledge normally possessed by members of that trade or profession in good standing in similar communities. However, in trades and professions containing both professionals and amateurs, professionals shall be held to a higher standard that amateurs.

Question 16

Yanka v. Edwards Industries (1961)

Answer 16

(Causation) Causation has 2 components: cause in fact (or direct cause) and proximate cause. To show cause in fact, the plaintiff must establish either that the plaintiff would not have been harmed “but-for” the defendant’s conduct or that the defendant’s conduct was a substantial factor in bringing about the harm. Proximate cause requires showing that the particular harm suffered by the plaintiff was both a foreseeable result of the defendant’s wrongful or unlawful conduct and is of a type that could reasonably have been anticipated. In performing this analysis, the fact finder must first identify the particular risks that made the defendant’s actions culpable and then determine whether the injury suffered is among those risks. The classic example involves a parent who hands a small child a loaded gun, which the child then drops on the plaintiff’s foot. Although it was of course negligent for the parent to give the child a loaded gun, the risk that made the parent’s action culpable was the gun may discharge and injure someone and the harm the plaintiff actually suffered could equally have occurred had the gun been a toy or unloaded.

Question 17

Whalen v. Wilkerson (1975)

Answer 17

(Causation) The notion that a risk must be “foreseeable” for a defendant to have violated its duty of care does not require that the defendant be able to anticipate in advance the target of the harm or the precise way the harm or accident will occur. Instead, it requires only that the defendant should have foreseen the general type of risk that cause the accident.

Question 18

Smith v. Marx (2018)

Answer 18

(Burdens of Proof) A plaintiff in a civil case must establish all of the elements of its claims by a preponderance of the evidence, i.e. it must establish that all elements are more likely that not true

Question 19

Trapp v. Smith (2020)

Answer 19

(Burdens of Proof) A defendant pursuing an affirmative defense must establish all of the elements of its affirmative defense by a preponderance of the evidence

Question 20

Murray v. Barney (1969)

Answer 20

(Affirmative Defenses) The intervening and superseding causation doctrine relieves a defendant from liability when an independent and unforeseen event occurs between the defendant’s wrongful conduct and the plaintiff’s harm. The doctrine applies only when the intervening act was:
1. Sufficient by itself to produce the plaintiff’s harm
2. Not reasonably foreseeable to the defendant
3. Not itself a direct result of the defendant’s wrongful conduct
When those requirements are satisfied, the chain of proximate cause is broken, and the defendant is relieved of liability. Because intervening and superseding cause is an affirmative defense, the burden of proof is on the defendant who raises it.

Question 21

Zhang v. Fritsch (1976)

Answer 21

(Affirmative Defenses) An errant firework going off resulted in an emergency landing of a private plane into a nearby farm, damaging several crops. Trial court entered judgement that - despite the fact the Defendant pilot acted negligently before the firework discharge - the firework served as an intervening and superseding cause, relieving the defendant from liability. Plaintiff appealed. This Court affirms the lower court’s determination. Although largely a fact-specific determination, fireworks may qualify as an intervening and superseding cause so long as all three elements (as laid out in Murray v. Harley (1969)) are met.

Question 22

Saffron v. Price (2000)

Answer 22

(Affirmative Defenses) Following a plane crash, as a result of a mechanical malfunction, Plaintiff initially filed suit against the airplane manufacturer. After the airplane manufacturer filed for bankruptcy, Plaintiff brought this negligence suit against the pilot. After conceding that they acted negligently, the Defendant pilot argued that the intervening and superseding causation doctrine relieved them from liability as the mechanical malfunction broke the chain of proximate causation. This Court agrees. Although most of the acts that caused the mechanical malfunction happened before the Defendant’s own negligent acts, since the malfunction itself - the intervening act- took place after the the Defendant’s negligent acts, the intervening and superseding causation doctrine may apply so long as the Defendant are able to establish the elements as lad out in Murray v. Harney (1969), including that the intervening act was not reasonably foreseeable to the Defendant.

Question 23

Spencer v. Mallikarjunan (2009)

Answer 23

(Affirmative Defenses) In a matter of first impression, this Court must decide how Midlands courts will treat the sudden incapacitation defense in air crash cases. Sudden incapacitation occurs when a pilot suffers from a sudden, unforeseeable medical emergency, such as a heart attack or stroke, that causes the pilot to lose control of the plane and crash. In some jurisdictions, sudden incapacitation stands as its own affirmative defense, where the burden is on the defendant to prove sudden incapacitation by a preponderance of the evidence. This Court recognizes the latter approach as more in line with Midlands common law. Specifically, the sudden incapacitation affirmative defense heavily mirrors the intervening and superseding causation doctrine as stated in Murray v. Harney (1969). Therefore, this Court extends the intervening and superseding causation doctrine to sudden incapacitation in air crash cases. If a Defendant wishes to contest liability in an air crash negligence case on the ground of sudden incapacitation, the Defendant must establish that the sudden incapacitation was an intervening and superseding cause. Further, sudden incapacitation cannot qualify as an intervening and superseding cause if the risk of sudden incapacitation was known - or should have been known - by the defendant.

Question 24

Simien v. Shelton (2010)

Answer 24

(Affirmative Defense) The basis of the assumption of risk defense is the plaintiff’s voluntary consent to accept the risk and look out for the plaintiff’s own well-being. Accordingly, assumption of risk requires a showing of actual, subjective awareness on the part of the plaintiff: a plaintiff does not assume a risk arising out of the defendant’s conduct unless the plaintiff actually knows of the existence of the risk and appreciates its unreasonable character.

Question 25

Ornstein v. Smough (2011)

Answer 25

(Affirmative Defense) A layperson without any pilot training is not capable of assuming the risk of negligent piloting. Although a lay decedent in a wrongful death case may be able to appreciate that a friend is generally reckless or overconfident person, if a decedent does not have sufficient knowledge to understand the specific risks associated with negligent or reckless piloting, then the fact that the layperson appreciated their friend’s character for risk-taking does not establish that the layperson appreciated the risk for purposes of the assumption of risk defense. Similarly, flying is not such an inherently dangerous activity that a person’s understand that planes are capable of crashing establishes appreciation of the risk for purposes of an assumption of risk defense. Whether a decedent has sufficient piloting experience or training to appreciate the risks associated with negligent piloting is up for the factfinder to determine.

Question 26

Vendrick v. Alonne (2014)

Answer 26

(Affirmative Defense) While a lay decedent cannot appreciated risks associated with negligent piloting, a decedent with pilot training may be capable of appreciating such a risk, even if the decedent is not capable of legally flying the aircraft at issue. For example, when a decedent pilot rated to fly only single-engine airplanes was a passenger in a twin-engine aircraft, the decedent was nonetheless able to appreciate the risks associated with flying in marginal visual flight rules conditions in an aircraft not equipped to perform an instrument flight rules landing.

Question 27

Sage v. Pontiff (2016)

Answer 27

(Affirmative Defense) When a decedent comes to appreciate a risk immediately prior to their death, after any ability to avoid it has passed, a defendant may not use this appreciation to exonerate themself under the doctrine of assumption of risk. For the defense to prevail under an assumption of risk defense, the decedent must appreciate and accept the risk at a time when the decedent can choose whether to assume the risk. In this case, when decedent became aware of a pilot’s intoxication only after the flight was in air, the defense failed to establish appreciation of risk.

Question 28

O’Neil v. Margit (2022)

Answer 28

(Affirmative Defense) When a defendant attempts to allege a defense of assumption of risk in a wrongful death case brought by the spouse of a decedent, the fact that a plaintiff-spouse understood and appreciated the risks associated with the defendant’s conduct cannot exonerate the defendant. The defendant must establish that the decedent - the one directly injured by the defendant’s conduct - knew of and appreciated the risk for the defendant to prevail under and assumption of risk defense.

Question 29

Zomerfeld v. Noto (2012)

Answer 29

(Preliminary Questions) Pursuant to MRE 104(a), when evaluating the admissibility of evidence, a trial court is permitted to rely on both admissible and inadmissible evidence. The use of underlying inadmissible evidence does not make that inadmissible evidence admissible. Instead the court is merely permitted to consider the underlying inadmissible evidence in order to assess the admissibility of the offered evidence. In a jury trial, the jury may not always be privy to the underlying facts used to determine what evidence is admissible, but the court may hear it. Previous upheld examples of this in Midlands include using character evidence to make a ruling on hearsay exceptions, using hearsay to make a ruling on character evidence, and using hearsay to decide whether an expert has adequate foundation to testify.

Question 30

Harper v. Raman (2015)

Answer 30

(Preliminary Questions) Pursuant to MRE 104(a), courts may consider custodial documents, such as clerks’ certifications or affidavits of record keepers, when determining the admissibility of other evidence without regard for the admissibility of the custodial document itself. The custodial document typically only addresses preliminary matters of admissibility and is not entered into evidence, and thus the court is not bound by the rules of evidence when considering it. However, if a party wishes to enter the custodial document itself into evidence, the proper foundation must be laid to establish its admissibility.

Question 31

Thomas v. Davis (2001)

Answer 31

(Framing the Issues for Trial) The purpose of the pleadings is to frame the issues for trial and permit the parties to frame their presentations accordingly. This later function is especially important because Midlands, unlike most jurisdictions, does not permit the plaintiff to call rebuttal witnesses or the defendant to alter its decision about which witnesses to call after hearing the plaintiff’s evidence. Accordingly, it is highly inappropriate for a party that has alleged or denied something in its compliant or answer to seek to prevent its adversary from presenting otherwise admissible evidence that relates to that thing by asserting that it is no longer interested in alleging or contesting that particular thing. Parties may, of course, choose which evidence they wish to present and which arguments they wish to emphasize, but the time for amending one’s pleadings is well before the court convenes for purposes of trail.

Question 32

Karan v. Baboons, Inc. (2004)

Answer 32

(Framing the Issues for Trial) Even in cases in which liability and damages phases have been bifurcated, a plaintiff still must establish “harm” in order to establish the defendant’s liability on a negligence theory. At the same time, however, because the purpose of a threshold liability-only phase is to establish only the existence, rather than the extent, of the defendant’s potential liability, trial judges should be especially vigilant in applying MRE 401 and 403 with respect to evidence that either does not relate or only marginally relates to questions at issue during such a phase.

Question 33

Byers v. Walker (2005)

Answer 33

(Framing the Issues for Trial) A factual allegation in a compliant that is admitted by the defendant in its answer should not be excluded at trail as irrelevant or moot if that information would be useful to the jury in evaluating other aspects of the case that remain in dispute.

Question 34

Filteua v. Wanek (1992)

Answer 34

(Authentication) The application of various rules of evidence sometimes turns on who made a particular statement. As long as the proponent of the statement produces evidence that would permit a reasonable jury to find, by a preponderance of the evidence, that a given person made a particular statement, the court must assume for purposes of assessing its admissibility that the statement was made by that person

Question 35

Ginger v. Heisman (2015)

Answer 35

(Authentication) Emails or text messages are properly authenticated when the proponent has produced evidence, either direct or circumstantial, that would allow a reasonable jury to determine the author of the message. The fact than an email, text message, or other electronic communication is listed as coming from an address or number that is either known or purports to belong to a particular person is sufficient to lay foundation that the communication was sent by the person in order to determine its admissibility, at least absent particularized reason to believe that the communication may have been sent by someone else/

Question 36

Dolly v. Ringo (2010)

Answer 36

(Hearsay) Unlike most other evidentiary rules, MRE 801(d)(2) may be invoked in only one direction. Under that rule, the plaintiff may offer statements by the defendant, and the defendant may offer statements by the plaintiff. But MRE 801(d)(2) does not permit the plaintiff to offer statements by the plaintiff or the defendant to offer statements by the defendant, even if the opposing party has already elicited out-of-court statements by the party during a preceding examination, subject to MRE 106.

Question 37

America’s Best Cookie v. International House of Waffles (2011)

Answer 37

(Hearsay) The Court recognizes that practices differ in other jurisdictions. But, in Midlands, the definition of “hearsay” includes out-of-court statements by a witness who is on the stand or by another person who has or will be testifying in a particular trial.

Question 38

Kaplan v. Sikora (2013)

Answer 38

(Hearsay) Pursuant to MRE 801(d)(2)(D), a statement that would otherwise be hearsay is admissible against a party if: (i) the declarant is the party’s agent or employee; (ii) the statement concerns a matter that is within the scope of the agency or employment relationship; and (iii) the statement was made while the agency or employment relationship existed.

Question 39

Coburn Camera Crew v. Ellicott City (1989)

Answer 39

(Character Evidence) Though the Midlands Rules of Evidence regarding character evidence refer to “person” and “persons”, the Court construes those terms as applying equally to companies, corporations, partnerships, and other legal entities. In other words, businesses sued for negligence or recklessness generally may not defend themselves on the grounds that they acted safely with respect to other situations and activities that are separate from the case at hand. Similarly, plaintiffs suing businesses generally may not introduce the businesses’ prior bad practices to prove bad practice in the case at hand. Nothing in this rule, however, prevents parties from offering traits or instances of character for other purposes, such as those listed in MRE 404(b)

Question 40

Vir v. Londo Manufacturing Co. (2011)

Answer 40

(Agency and Respondent Superior) Traditional principles of agency law provide that a corporation is generally charged with knowledge of any facts learned by its agents within the scope of their employment. This is especially true in circumstances when the agent, in light of their role at and duties to the corporation, ought and would reasonably be expected to act upon those facts or communicate their knowledge of them to others at the corporation. This rule applies regardless of whether the agent did, in fact, communicate the information to others.

Question 41

Brotherhood, LLC v. Mede (2013)

Answer 41

(Agency and Respondent Superior) As held by Vir. v. Londo Manufacturing Co. (2011), any knowledge or action by an employee is attributable to their corporate entity. By contrast, because independent contractors are not subject to the same degree of control and supervision by a corporate entity as the corporate entity’s employees, actions and knowledge by independent contractors - and the independent contractors’ employees - are not attributable to a corporate entity who employed the contractor.

Question 42

Lawan v. Sachs Thompson LLC (2019)

Answer 42

(Agency and Respondent Superior) Pursuant to the doctrine of Respondent superior, a corporation is legally responsible and liable for all acts of its employees and agents that occur within the scope of their employment

Question 43

Davis v. Adams (1993)

Answer 43

(Experts) Trial judges must ensure that any scientific testimony or evidence admitted is not only relevant but reliable. In determining reliability, judges should consider only the methods employed and the data relied upon, not the conclusions themselves. The proponent of the evidence has the burden of proving each section of MRE 702 by a preponderance of the evidence

Question 44

Tarot Readers Association of Midlands v. Merrell Dow (1994)

Answer 44

(Experts) In assessing reliability under MRE 702(c), judges should consider whether the theory or technique has been or can be tested, whether it has been subjected to peer review and publication, whether it has a known error rate, and whether it has gained widespread acceptance within the field. These factors, while relevant, are not necessarily dispositive. For example, lack of publication does not automatically foreclose admission; sometimes well-grounded but innovative theories will not have been published. There is no definitive checklist. Judges must make such assessments based on the totality of the circumstances/

Question 45

Richards v. Mississippi BBQ (1997(

Answer 45

(Experts) MRE 703 does not permit experts to testify or present a chart in a manner that simply summarizes inadmissible hearsay without first relating that hearsay to some specialized knowledge on the expert’s part. The court must distinguish experts relying on otherwise inadmissible hearsay to form scientific conclusion from conduits who merely repeat what they are told. The testimony of the former is admissible; that of the latter is not. At the same time, statements that would otherwise be admissible are not inadmissible simply because they are offered by or through an expert witness.

Question 46

Kane Software Co. v. Mars Investigations (1998)

Answer 46

(Experts) Midlands does not permit parties to use their experts as weapons in a trial by ambush or unfair surprise. Expert reports that are exchanged prior to trial must contain a complete statement of all opinions the expert will testify to and the basis and reasons for them, the facts or data considered by the expert in forming their opinions, and the expert’s qualifications. Experts are strictly prohibited from testifying on direct or edict examination about any opinions or conclusions not stated in their report, and such testimony must be excluded upon a timely objection from opposing counsel.

For example, an expert may not testify on direct or redirect examination that they formed a conclusion based on evidence that came out during trial that the expert did not previously review. However, if an expert is asked during cross-examination about matters not contained in their report, the expert may freely answer the question as long as the answer is responsive. When an objection is made under Kane Software, the trial court typically should ask the party offering the expert testimony to refer the trial court to where the proposed testimony is contained or otherwise referenced in the expert’s disclosure to ensure that the record is clear/

Question 47

Aggarwal v. Somani (2020)

Answer 47

(Experts) Appellants argue that the trial court improperly excluded testimony from the defense expert on the basis that certain testimony amounted to “trial by ambush” under the precedent set by Kane Software Co. v. Mars Investigations (1998). Appellants admit that the defense expert was attempting to testify to certain underlying facts that were not expressly disclosed in the expert report and that such facts contributed to the expert’s conclusions, but they argue that the conclusion itself was disclosed and thus it was unnecessary for every underlying detail to be disclosed. We hold that the Appellants’ argument has merit. Experts should to be expected to include in their reports every basic scientific fact known to lay people and known realities that support their conclusion; Similarly, experts should not be expected to include in their reports every underlying fact from a specific document so long as the experts explicitly disclosed that they relied upon that document in forming their opinions and that document was made available to the other party through discovery. Such requirements would lead to expert reports that are hundreds, if not thousands, of pages long. For example, an accident reconstructionist need not example Newton’s laws of motion in their report. However, if an expert wishes to testify that they believe the indentations on a vehicle’s door means that the vehicle collided with a streetlamp at 45 MPH, then measurements, equations, and other relevant facts that form the basis for that specific conclusion must be disclosed in the expert’s report.

Question 48

Diamond Design Productions v. Fountain (2021)

Answer 48

(Experts) Notwithstanding MRE 704, witnesses may not offer legal conclusions or legal interpretations. The determination of whether a person or entity has violated the law is the exclusive province of the fact-finder - either the judge in a bench trial or the jury in a jury trial - and hearing a witness’s views about the law will not “assist the trier of fact to understand the evidence or to determine a fact in issue” within the meaning of MRE 702. For example, in a murder trial, an expert witness (with the appropriate credientials and foundation) may testify to whether the defendant fire a gun or whether the gunshot was the medical cause of a victim’s death. The same expert may also testify how the consequences of the gunshot (e.g. blood loss) cause the victim’s death. However, regardless of credentials and foundation, that same expert may not testify to whether the defendant committed “murder” or whether the gunshot was the “proximate cause” of the victim’s death.

Question 49

Grant v. Janmohamed (2021)

Answer 49

(Experts) Expert witnesses may rely on inadmissible facts and data, including reviewing reports from the NTSB, when coming to conclusions related to aviation accidents. The use and disclosure of facts and opinions form such reports at trial, however, presents a conflict between MRE 703/705 and 49 U.S.C. 1154(b), as the federal statue prohibits any disclosure of the report’s contents, while evidentiary has resolved this conflict by permitting findings of fact to be admitted when relied upon by expert witnesses, but not opinions or conclusions regarding the cause of the crash. Thus, information from an NTSB report detailing the coordinates of a crash and last known altitude was permissible evidence for an expert to disclose, while information from an NTSB report alleging that pilot error cause a crash was inadmissible. Further, the Court has held that the NTSB report itself may not be admitted into evidence or shown to a jury; experts making use of information in such a report should read from or recite the information. When disclosing findings of fact from the NTSB report, the expert may disclose that these facts came from the NTSB report.

Question 50

Pippin v. Big Cat Air, LLC (2022)

Answer 50

(Experts) For the purposes of evaluating an NTSB report, factual information is information that is objectively ascertainable for certain, while opinion information is information that requires investigation, deduction, analysis, and/or expertise to ascertain. Using this distinction, the court held that it was proper for an expert witness to testify as to NTSB report information regarding the height of the cloud ceiling at the nearest airport at the time of the crash, but not to testify as to the NTSB’s conclusions that the pilot likely flew into the cloud ceiling and the cloud ceiling contributed to the crash. While a properly qualified expert could attest to her own conclusions regarding the cloud height, the flight plan, and the weather’s contribution to the crash, the expert could not use the fact that the NTSB’s conclusion matcher her own conclusion to bolster the credibility of her testimony.

Question 51

Midlands Television Studios v. Kosack (2018)

Answer 51

(Depositions) In lieu of submitting an entire deposition into evidence, a party may instead elect to read excerpts of a deposition onto the record. The excerpt must include the full question(s) asked and the full answer(s) given, unless both sides agree to specific redactions. Any excerpt read onto the record is still subject to the Midlands Rules of Evidence. Should a party elect to read excerpts of a deposition onto the record, that party cannot also submit the deposition itself into evidence.

Question 52

Stock v. Leak (2019)

Answer 52

(Depositions) In Midlands, substantive objections are not appropriate during a deposition. As a result, failure to object to a question during a deposition does not prelude a party from objecting to the deposition (or an excerpt under Midlands Television Studios v. Kosack) being offered at trial.

Question 53

Moore v. Campbell (2014)

Answer 53

(Witnesses Must Be Able to Respond to Cross Examination) Civil case arising from alleged assault. The plaintiff was called as a witness and testified fully on direct examination. On cross examination, however, the plaintiff failed to respond to some questions, purportedly because of a condition arising from the assault. Held: the judgement for the plaintiff must be reversed. The reason why the witness failed to respond to the questions on cross examination is immaterial. If a witness becomes unable or unwilling to respond to otherwise proper questions on cross examination, the trial court must strike the witness’s testimony in its entirety.

Question 54

Davis v. HappyLand Toy Co. (2011)

Answer 54

(Role of Surviving Spouse in Wrongful Death Action) In a wrongful death action, both the deceased and the surviving spouse (or, where applicable, personal representative) are considered “parties” for all evidentiary purposes. Accordingly, whenever the defendant offers statements of either the decedent or the spouse (or personal representative), such statements qualify under MRE 801(d)(2)(A) as “an opposing party’s statement” and therefore are not hearsay. However, a surviving spouse in a wrongful death action is not a party for purposes of establishing “harm” or “injury”. Thus, in a wrongful death action it is not relevant - and may often be overly prejudicial - that a surviving spouse suffered emotional distress, loss of financial support, or loss of companionship. Of course, evidence that is admissible for other purposes is not rendered inadmissible merely because it also happens to provide evidence that a surviving spouse suffered harm or injury.