Martin H. Droz - Page 9

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          individual who prepared the written report that respondent timely           
          submitted to the Court and served on petitioner as required by              
          Rule 143(f).  We determined that that individual was not an                 
          expert qualified to opine on the fair market value of the Mark IV           
          helmet as issue.  Respondent called two fact witnesses, Dr.                 
          Jamieson and Mr. Gilliam, who testified at trial.  We found each            
          of them credible.5                                                          

          5  Petitioner renews on brief his contention at trial that the              
          testimony of respondent's witnesses, Dr. Jamieson and Mr. Gil-              
          liam, should be excluded because their identity was omitted from            
          respondent's trial memorandum dated Jan. 5, 1995, and, as a                 
          result of that omission, he did not have the opportunity to                 
          prepare for the testimony of those witnesses.  The identity of              
          respondent's witnesses, Dr. Jamieson and Mr. Gilliam, was dis-              
          closed to petitioner, inter alia, in an amendment to trial                  
          memorandum for respondent dated Jan. 12, 1995 (respondent's                 
          amendment to trial memorandum).  Petitioner was aware of the                
          identity of those witnesses almost two weeks before the trial               
          herein, made no effort to ascertain their whereabouts, did not              
          ask respondent how he could contact them, and chose not to                  
          contact them.  We reaffirm our finding at trial that under those            
          circumstances petitioner's ability to present his case was not              
          prejudiced by respondent's calling Dr. Jamieson and Mr. Gilliam             
          as witnesses.                                                               
          Petitioner also renews on brief his suggestion at trial that                
          this Court should not rely on the testimony of Dr. Jamieson and             
          Mr. Gilliam because they were not credible.  The determination of           
          the credibility of witnesses is a question of fact that is within           
          our discretion.  Friedman v. Commissioner, 235 F.2d 86 (6th Cir.            
          1956), affg. T.C. Memo. 1954-198.  As noted above, we found each            
          of respondent's two fact witnesses credible.                                
          Petitioner also renews on brief his contention at trial that                
          the testimony of respondent's witness, Dr. Jamieson, should be              
          excluded because it was beyond the scope of testimony stated in             
          respondent's amendment to trial memorandum.  Petitioner also                
          objects on brief to the testimony of respondent's witness, Mr.              
          Gilliam, on the same grounds.  Petitioner's contentions about the           
                                                             (continued...)           




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