Ball v. Trusler ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31187
Summary Calendar
JOHN E. BALL, Jr.,
Plaintiff-Appellant,
VERSUS
LESLIE RAY TRUSLER; ET AL,
Defendants,
LESLIE RAY TRUSLER; J. B. HUNT TRANSPORT, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-865-N)
May 25, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant John E. Ball, Jr. (“Ball”) appeals from a trial by
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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jury in which a take-nothing judgment was entered against him in a
suit for personal injuries arising out of a vehicular accident.
Ball presents four issues on appeal which we will deal with
seriatim.
I.
Ball first alleges that the district court erred in allowing
the defendants below to introduce expert testimony from Duaine
Evans in the field of accident reconstruction and Thomas McNish in
the field of engineering accident reconstruction, biomechanics and
medicine under the principles enunciated in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
We note that a decision of the district court in determining the
admissibility of expert testimony will not be disturbed on appeal
unless that determination is manifestly erroneous. See General
Elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 517, 139 L. Ed. 2d
508 (1997); Moore v. Ashland Chem., Inc., 151 F.3d 269, 274 (5th
Cir.1998)(en banc). Ball never objected at trial to McNish’s or
Evans’s qualifications or methodology under Daubert. An overruled
motion in limine does not preserve error on appeal. See Marcel v.
Placid Oil Co., 11 F.3d 563, 565 (5th Cir.1994). A careful review
of the record reveals that the objections Ball did make at trial
were directed at the scope of the expert’s testimony, and not at
their qualifications or methodology. Furthermore, even if Ball had
properly preserved this alleged error, we are satisfied that both
McNish’s and Evans’s methodology comports with the principles
enunciated in the recent Supreme Court Daubert-clarification case,
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Kumho Tire Co., Ltd. v. Carmichael, 119 S. Ct. 1167 (1999)(expanding
the scope of Daubert’s gate-keeping obligation to all expert
testimony, not just “scientific” testimony). See also Black v.
Food Lion, No. 97-11404, 1999 WL 173001 (5th Cir. Mar. 30, 1999).
In this instance, therefore, we find no manifest error in the
district court’s decision to allow these experts to testify.
II.
Ball next asserts that the district court’s refusal to allow
him to introduce expert testimony in the fields of accident
reconstruction and biomechanics in his case on rebuttal constituted
reversible error. Again, the trial court has “broad discretion”
when it comes to enforcing its Scheduling Orders, including the
timely listing of witnesses and the exchange of expert reports, and
in excluding or admitting expert testimony. See Geiserman v.
MacDonald, et al., 893 F.2d 787, 790 (5th Cir.1990). When a
district court excludes expert testimony as a sanction for a
violation of a discovery order, we determine whether the court’s
action is an abuse of discretion by examining four factors: (1)
the explanation, if any, for the party’s failure to comply with the
discovery order; (2) the prejudice to the opposing party of
allowing the witness to testify; (3) the possibility of curing such
prejudice by granting a continuance; and (4) the importance of the
witnesses’ testimony. Barrett v. Atlantic Richfield Co., 95 F.3d
375, 380 (5th Cir.1996). For the reasons stated in the District
Court’s August 10, 1998 Order and Reasons, which analyzed these
same four factors, we find no abuse of the trial court’s discretion
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in excluding Ball’s experts.
III.
Ball next contends that the jury’s finding that the
defendants/appellees were not negligent in a manner which was the
proximate cause of the accident is clearly erroneous and should be
reversed. A finding is clearly erroneous when “although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been committed.” See Luhr Bros., Inc. v. Shepp, 157 F.3d 333 (5th
Cir.1998)(quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)). After carefully reviewing the evidence in
this case, we conclude that there is more than enough evidence to
support the jury’s determinations of negligence and proximate
cause. Therefore, we lack a firm conviction that a mistake has
been committed and uphold the jury’s findings.
IV.
Finally, Ball asserts that the district court erred in denying
his motion for new trial. Ball contends that the jury’s finding
that his actions were the sole cause of the accident were clearly
erroneous. Likewise, he alleges that the jury was unduly
influenced and prejudiced against him by evidence which was
improperly admitted by the trial court. Further, he alleges that
the jury was improperly influenced and prejudiced against him by an
inflammatory closing argument which contained highly prejudicial
facts against him that had not been admitted into evidence.
A district court has “sound discretion” to grant or deny new
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trial motions, and we will affirm absent a clear showing that this
discretion has been abused. See Pryor v. Trane Co., 138 F.3d 1024,
1026 (5th Cir. 1998). As we have stated in regards to challenges
of a trial court’s decision to deny a motion for new trial on
evidentiary grounds:
[O]ur review is more narrow when a new trial is denied
than when one is granted. In such cases, “all the
factors that govern our review of [the trial court’s]
decision favor affirmance,” and we must affirm the
verdict unless the evidence--viewed in the light most
favorable to the jury’s verdict--“points so strongly and
overwhelmingly in favor of one party that the court
believes that reasonable men could not arrive at a
contrary [conclusion].”
Id., (internal citations omitted). As far as Ball’s complaint can
be construed as a challenge to the verdict being against the great
weight and preponderance of the evidence, we disagree. The
evidence viewed as a whole does not point so strongly in favor of
Ball to justify disturbing the jury’s amply supported findings.
Ball has also alleged that certain prejudicial evidence and
inflammatory closing remarks made by the defendants improperly
influenced the jury against him. However, in regards to the
“improperly admitted” evidence, most of it was introduced by Ball.
Apparently, Ball now complains that defendants went beyond the
scope of the limited purposes for which the evidence was admitted.
Nonetheless, when a plaintiff opens the door to what he now asserts
is objectionable evidence, any error was harmless. See Fruge v.
Penrod Drilling Co., 918 F.2d 1163, 1169 (5th Cir.1990);
Fed.R.Civ.P. 61. Additionally, a statement taken out of context in
which Ball had admitted to drug usage as a teen was sufficiently
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corrected at trial to foreclose any finding of reversible error.
In regards to the defendants’ closing arguments, we note that
“generally, counsel are allowed a reasonable latitude in making
them.” See Whitehead v. Food Max of Miss., 163 F.3d 265, 275 (5th
Cir.1998). Complicating our task, as did the party in Whitehead,
is that Ball failed to contemporaneously object to the statements
now challenged. Given the great deference we accord to the trial
judge, who was present and heard the evidence, and finding no
evidence that these remarks rose to the level of plain error, we
decline to reverse the district court’s decision not to grant Ball
a new trial.
V.
Therefore, for the foregoing reasons, we AFFIRM.
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