Dortch v. Fowler , 588 F.3d 396 ( 2009 )

JULIA SMITH GIBBONS, Circuit Judge,

concurring.

I concur but would employ reasoning different from that of the majority in disposing of the issue discussed in part II.B.1, the admissibility of research on the origins of the second gouge. The majority is likely correct that the district court erred in basing its exclusion of the evidence on lack of relevancy under Federal Rules of Evidence 401 and 402. The failure to establish a cause for the second gouge other than the accident involving the parties may have some limited relevance. Nevertheless, the evidence was properly excluded under Federal Rule of Evidence 408 because its probative value was slight and its potential for prejudice and jury confusion significant. I would simply affirm the district court’s exclusion of the evidence on a ground different from that used by the district court rather than characterize the district court’s evidentiary ruling as an abuse of discretion and employ harmless error analysis to affirm. See Dixon v. Clem, 492 F.3d 665, 673 (6th Cir.2007) (holding that this court “may affirm on any grounds supported by the record even if different from the reasons of the district court” (citation omitted)).