Campbell v. Keystone Aerial Surveys, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-21082
__________________
MELVA CAMPBELL, Individually and as the Natural Mother
and Next Friend of Marisol Campbell, Vanessa Campbell,
Thomas Campbell, Penelope Campbell, and Nakita Campbell,
minors; and as personal representative of the Estate of
Thomas Campbell; MARISOL CAMPBELL; VANESSA CAMPBELL;
THOMAS CAMPBELL; NAKITA CAMPBELL; PENELOPE CAMPBELL,
Plaintiffs-Appellants/Cross-Appellees,
versus
KEYSTONE AERIAL SURVEYS, INCORPORATED; ET AL.,
Defendants,
KEYSTONE AERIAL SURVEYS, INCORPORATED,
Defendant-Appellee/Cross-Appellant.
______________________________________________
Appeals from the United States District Court for the
Southern District of Texas
______________________________________________
April 13, 1998
Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
On May 28, 1994, a Cessna 320E airplane crashed into the wall
of a canyon near Battle Mountain, Nevada. Steve Fish, the pilot,
and Thomas Campbell were killed in the accident. The pilot was
employed by Keystone Aerial Surveys, Inc. (“Keystone”), and
Campbell was conducting aerial magnetic surveys for Keystone. This
appeal arises out of a wrongful death and survival action brought
by Melva Campbell, Thomas Campbell’s widow, and his five children,
against Keystone.1
I.
Thomas Campbell began working for Keystone in April 1994 as an
“air mag operator,” conducting aerial magnetic surveys to record
geological patterns in designated areas. This kind of surveying
requires low-level flight operations; at times, a pilot may fly a
plane no more than 200 to 500 feet above the ground. The area
that Fish and Campbell were surveying at the time of the accident
has been described as hilly or mountainous. One witness described
it as a “box canyon.” The plane, which had been flying at a low
altitude inside the canyon, crashed into a wall of the canyon.
The Campbells’ negligence theory was that the plane crashed as
a result of a “controlled flight into terrain.” That is, they
contended that the pilot had control of the plane but crashed into
the terrain either because he did not see it or because he simply
did not leave enough time and space to avoid it. Keystone denied
that the accident resulted from pilot error and offered a number of
possible alternative explanations for the crash through the
testimony of their expert, Warren Wandell.
The district court granted Keystone’s motion to bifurcate the
trial into a liability and compensatory damages portion and a
1
The Campbells also brought suit against Keystone’s
subsidiaries, Airmag Surveys, Inc. and Precision Surveys, Inc. The
district court dismissed these defendants before trial, and the
Campbells do not appeal their dismissal.
2
punitive damages portion. The liability and compensatory damages
portion was tried to a jury, which failed to find that any
negligence on Fish’s part proximately caused the accident. The
district court rendered judgment on the jury’s verdict, and this
appeal followed.
II.
The Campbells raise a variety of challenges to the testimony
of Keystone’s expert witness, Warren Wandell. First, they argue
that the district court abused its discretion in allowing Wandell
to testify because he was not timely designated. Second, they
argue that the district court erred in allowing Wandell to testify
because he had been employed by the National Transportation Safety
Board (“NTSB” or the “Board”) in the office that investigated this
plane crash, and federal regulations prohibit NTSB employees from
offering opinion testimony. Because we conclude that the district
court abused its discretion in allowing Wandell’s late-designated
testimony, we vacate the district court’s judgment as to liability
and damages and remand for a new trial on these issues.2
2
Because appellants’ specific challenges to Wandell’s
testimony, including their claims that his testimony violated
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786 (1993), and that he impermissibly testified regarding
“probable cause,” may or may not arise in the new trial granted
herein, we do not address them here.
3
A.
4Appellants first argue that the district court should have
refused to allow Wandell’s testimony because Keystone designated
him as an expert witness outside the deadline set by the district
court’s scheduling order. Keystone first designated Wandell on
August 1, 1996, approximately eight months after the scheduling
order deadline, nearly three months after a pretrial order listing
trial witnesses was entered, and only seven-and-a-half weeks before
trial. Although the Campbells filed a motion to strike Wandell’s
testimony on August 13, 1996, the district court did not rule on
that motion until the first day of trial. The district court then
denied the motion to strike and allowed the Campbells to depose
Wandell during the afternoon of the second day of trial.
We review the district court’s decision to allow testimony by
a late-designated expert for abuse of discretion. Bradley v.
United States, 866 F.2d 120, 124 (5th Cir. 1989). We have held
that the district courts have “wide latitude” in pretrial matters
and must be allowed to act with “intelligent flexibility” in this
arena. Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir. 1971). We
have instructed the district courts to consider four factors in
determining whether the testimony of a late-designated expert
witness should be permitted: (1) the importance of the witness’s
testimony; (2) the prejudice to the opposing party if the witness
is allowed to testify; (3) the possibility that a continuance would
cure potential prejudice; and (4) the explanation given for the
failure to identify the witness. Bradley, 866 F.2d at 124 (citing
5
Murphy v. Magnolia Elec. Power Ass’n, 639 F.2d 232, 235 (5th Cir.
1981)).
In ruling on the Campbells’ motion to strike, the district
court failed to consider these factors. Instead, the district
court simultaneously considered a motion by Keystone to strike the
Campbells’ expert on pilot negligence, Richard L. Taylor, and
stated:
Here’s what I am going to do, I am going to decide today
whether Mr. Taylor testifies. If Mr. Taylor testifies,
he gets Wandell. If Mr. Taylor doesn’t testify, he
doesn’t get Wandell. That’s the way its going to be.
In short, the district court failed to analyze independently
whether the plaintiff’s expert and the defendant’s expert should
have been allowed to testify.
Applying the Bradley factors, we conclude that the district
court abused its discretion by allowing Wandell to testify. Not
only did Keystone fail to proffer any explanation for its failure
to designate Wandell in a timely fashion,3 but the potential
prejudice to the Campbells resulting from the district court’s
decision to allow Keystone to designate an expert in accident
reconstruction shortly before trial was plain and substantial.
Before Wandell was designated, Keystone had not identified a single
expert witness on liability issues. The Campbells prepared their
case on the assumption that theirs would be the only liability
expert, apparently confident that Taylor’s testimony would
3
Counsel for Keystone stated only that he “got in this case
late,” and in effect conceded that this was not an excuse for the
late designation.
6
withstand cross-examination and be sufficient to support a jury
verdict in their favor in the absence of an opposing expert.
Keystone’s sudden designation of Wandell left the Campbells with an
inadequate opportunity to adapt the presentation of their case in
light of his testimony, by, for example, obtaining and developing
the testimony of their own accident reconstruction expert and
preparing to cross-examine Wandell. See Bradley, 866 F.2d at 125.4
Wandell’s testimony was unquestionably important. Indeed, it
was devastating to the Campbells’ case: based on photographs of the
accident scene and other investigation, Wandell cogently refuted
Taylor’s testimony that the accident resulted from a “controlled
flight into terrain” due to pilot negligence and offered alternate
explanations for the crash. Moreover, counsel for Keystone cross-
examined Taylor extensively to expose that he, unlike Wandell, was
not an accident reconstructionist.
The district court failed to consider whether the potential
prejudice to the Campbells could be cured by a continuance. That
neither party in this case requested a continuance is not
surprising: the trial had already been continued twice, once over
the Campbells’ objection. As this court recognized in Bradley,
when an expert is designated outside the deadline set by the
district court in a case that has already been continued (in
4
Although the Campbells might have hastened to depose Wandell
when he was identified and his report was produced in August, we
are reluctant to require a party faced with a late-designated
expert to cure the potential prejudice caused by the late
designation before the district court has ruled on a motion to
exclude the testimony.
7
Bradley, three times), the party opposing the late-designated
expert is put in the “untenable position” of agreeing to a
continuance or going forward with an improperly designated witness.
Id. at 127 n.11. A continuance may nevertheless be the appropriate
way in which to handle a late designation, especially where the
expert’s testimony is important. Indeed, we have repeatedly
emphasized that a continuance is the “preferred means of dealing
with a party’s attempt to designate a witness out of time . . . .”
Id. (citations omitted). In this case, however, the district court
failed to consider this option and instead required the plaintiffs
to depose Wandell the afternoon of the second day of trial.
For these reasons, we conclude that the district court abused
its discretion by allowing Wandell’s testimony without allowing the
Campbells an opportunity to obtain their own expert accident
reconstructionist and time to prepare to cross-examine Wandell.
Accordingly, we remand the case to the district court for a new
trial on the issues of liability and damages. “Before the new
trial is begun, of course, the district court should consider any
further appropriate discovery and should allow the parties to
prepare the presentation of their cases in light of [the expert’s]
expected testimony.” Bradley, 866 F.2d at 127. The court may also
consider whether it should impose sanctions on Keystone for the
breach of its duties under the Federal Rules of Civil Procedure.
See id.8
B.
The Campbells also argue that the district court should have
excluded all opinion testimony offered by Warren Wandell because he
was formerly employed by the NTSB in the office that investigated
the plane crash in question. Federal regulations strictly limit
the testimony that NTSB employees may offer in both criminal and
civil proceedings. See 49 C.F.R. §§ 835.1-835.9. The stated
purposes of the regulations are to
ensure that the time of Board employees is used only for
official purposes, to avoid embroiling the Board in
controversial issues that are not related to its duties,
to avoid spending public funds for non-Board purposes, to
preserve the impartiality of the Board, and to prohibit
the discovery of opinion testimony.
49 C.F.R. § 835.1.
Current NTSB employees are precluded from offering expert
opinion testimony, id. § 835.3(a), and “may testify only as to the
factual information they obtained during the course of an
investigation.” Id. § 835.3(b). Further, current NTSB employees
are allowed to refer to a copy of their factual investigation
report, but are prohibited from referring to the NTSB accident
report, id. § 835.4, which typically contains the NTSB’s opinions
and probable cause finding. Federal law flatly prohibits the NTSB
accident report from being admitted into evidence in any suit for
damages arising out of accidents investigated by the NTSB. See 49
U.S.C. § 1154(b) (formerly codified at 49 U.S.C. § 1441(e)).
Section 835.7 limits a former NTSB employee’s testimony “to the
matters delineated in § 835.3, and use of reports as prescribed by
§ 835.4.” Id. § 835.7.
9
Only one other court appears to have addressed the permissible
scope of a former NTSB employee’s testimony. See Loftleidir
Icelandic Airlines, Inc. v. McDonnell Douglas Corp., 204 Cal. Rptr.
358 (Cal. App. 1984). In that case, a California court of appeals
reversed the decision of a lower court to exclude the opinion
testimony of a former NTSB employee who was not involved in the
investigation of the subject accident. Id. at 364. The court
concluded that the former NTSB employee should have been allowed to
offer expert opinion testimony because his opinions and conclusions
were not “formulated as a part of his official duties with the
NTSB,” id. at 362; he “had no investigative function whatsoever
over the . . . accident,” id. at 363; and “he was not personally
involved in the field investigation of the crash,” id. The
Loftleidir court concluded that allowing the testimony under these
circumstances would not interfere with what it conceived to be the
primary purpose of 49 C.F.R. §§ 853.3 and 853.4: to prevent the
NTSB’s opinion regarding the probable cause of the accident from
being used in litigation.
We find the Loftleidir court’s reasoning persuasive and
further note that allowing testimony under the circumstances at
hand does not undermine any of the stated purposes of the
regulations. See 49 C.F.R. § 835.1. There is no indication that
Wandell had any connection whatsoever with the investigation of
this accident during his tenure at the NTSB. He developed his
expert opinions after his retirement from the NTSB from an
independent review of sources other than the NTSB accident report.
10
That Wandell worked in the office that investigated the subject
crash, without more, does not change our conclusion. Cf.
Loftleidir, 204 Cal. Rptr. at 363 (noting that, although the expert
was not involved in the investigation, he had reviewed and
initialed the report and forwarded it to the Board).
Moreover, although, as appellants note, the party presenting
the witness in the Loftleidir case had agreed not to mention the
fact that he was a former NTSB employee, that Wandell was permitted
to testify that he had worked for the NTSB does not persuade us
that his testimony should have been disallowed. In this case, no
mention was made of Wandell’s connection to the investigating
office, and he clearly testified that he was retired from the
NTSB.5
III.
The district court precluded appellants from introducing
evidence through their expert witness on liability that the pilot
had violated specific Federal Aviation Regulations (FARs) and also
refused appellants’ request to incorporate the FARs into the jury
instructions.6 “Recognizing that district courts enjoy substantial
5
We note, however, that on retrial, Keystone would be well
advised to avoid making a show of Wandell’s NTSB lapel pin.
Although the Campbells raised no contemporaneous objection to this
display, we agree with the Campbells that such grandstanding has
the potential to mislead the jury.
6
Instead, the jury was instructed only that the pilot had a
duty to act with ordinary care, and “ordinary care” was defined as
“that degree of care that would be used by an airplane pilot under
the same or similar circumstances.”
11
latitude in formulating jury instructions, this court reviews the
refusal to provide a requested instruction for abuse of
discretion.” United States v. Trevino-Martinez, 86 F.3d 65, 67
(5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 1109 (1997)
(citing United States v. Smithson, 49 F.3d 138, 142 (5th Cir.
1995)).
The district court based its ruling in part on the fact that
appellants failed to plead negligence per se. Appellants do not
argue on appeal that the alleged violations of the regulations
constituted negligence per se or that they were entitled to a
negligence per se instruction, but only that the violations of the
regulations were some evidence of negligence. We agree. This
court has recognized that FARs have the “force and effect of law,”
United States v. Schultetus, 277 F.2d 322, 327 (5th Cir. 1960), and
other courts have held that their violation constitutes some
evidence of negligence. See, e.g., In re Air Crash Disaster at
John F. Kennedy Int’l Airport, 635 F.2d 67, 75-76 (2d Cir. 1980);
Tilley v. United States, 375 F.2d 678, 680 (4th Cir. 1967).
Appellants do not explain, however, why the fact that the FARs are
some evidence of negligence entitled them to a jury instruction
including the regulations. Nor do they cite any authority that
establishes that the refusal to give such an instruction
constitutes an abuse of discretion.7 Under these circumstances, we
7
Appellants rely on In re Air Crash Disaster at John F.
Kennedy Int’l Airport, 635 F.2d at 75-76. In that case, the court
of appeals upheld an instruction that the jury could consider the
FARs to be some evidence of negligence. The instruction was
challenged on appeal based on the insufficiency of the evidence to
12
conclude that the district court did not abuse its discretion in
refusing to instruct the jury regarding the FARs.
We see no reason, however, that appellants on retrial should
be precluded from presenting the FARs to the jury as evidence of
what a reasonable pilot would have done under the circumstances.
Even if a violation of a regulation does not constitute negligence
per se, failure to comply with a regulation may still provide
evidence that the defendant deviated from the applicable standard
of care. See, e.g., Dougherty v. Santa Fe Marine, Inc., 698 F.2d
232, 235 (5th Cir. 1983)(noting that the jury could consider the
regulations “as illustrative of a reasonable manufacturer’s
conduct”); Marshall v. Isthmian Lines, Inc., 334 F.2d 131, 136 (5th
Cir. 1964)(citation omitted)(holding that regulations are a
“relevant fact” to be considered by the jury even if negligence per
se does not apply)(quoting Prosser, Torts § 34, at 162 (2d ed.
1955)).8
show a violation of the regulations, the specific language of the
instruction submitted, and an argument that the FARs were not
“minimum standards of safety.” Id. at 75, 75-76. Nothing in that
case, however, indicates that the refusal to give such an
instruction constitutes error.
8
Assuming without deciding that the Campbells’ complaint was
insufficient to put Keystone on notice that they were pursuing a
negligence per se theory, their failure to cite the FARs in their
complaint does not preclude them from presenting these regulations
as some evidence consistent with their factual theory of
negligence.
13
IV.
14
Appellants also appeal the district court’s refusal to admit
evidence of the suicide of Campbell’s son, Thomas Moises Campbell,
and evidence regarding the condition of Campbell’s body after the
crash.
A.
A little more than a year after his father’s death, Thomas
Moises Campbell (“Thomas”) committed suicide. In a suicide note,
Thomas referred to his father’s death and said that he was “going
to visit him.” Although the Campbells did not assert a cause of
action on behalf of Thomas’s estate, they did urge that evidence of
his suicide should be admitted to show the degree of mental anguish
that the other members of the family had suffered as a result of
Campbell’s death. Noting the potential for this evidence to
inflame the jury and confuse the issues, the district court ruled
that no mention could be made of the fact that Thomas had taken his
own life.9
The risk that the jury would confuse the mental anguish
suffered by family members as a result of young Thomas’s suicide
with that resulting from Campbell’s death was substantial. See
Fed. R. Evid. 403. By contrast, the probative value of this
evidence to show the degree of mental anguish suffered by other
family members as a result of Campbell’s death was tenuous.
9
The district court ruled before trial that Thomas’s suicide
note would not be admitted, citing Federal Rule of Evidence 403.
On the first day of trial, the district court ruled that no mention
could be made of Thomas’s suicide whatsoever.
15
Moreover, the Campbells did not assert mental anguish on behalf of
Thomas’s estate. Under these circumstances, we conclude that the
district court acted within its discretion under Rule 403 in
refusing to admit evidence relating to Thomas’s suicide.
B.
The district court also refused to admit evidence relating to
the condition of Campbell’s remains. Campbell was decapitated in
the accident, and his body was badly burned. The Campbells
specifically challenge the district court’s exclusion of
photographs of the crash site showing Campbell’s remains, a
coroner’s report, which contained photographs of Campbell’s
remains, and the videotaped deposition testimony of George Franklin
Hobbs, an undersheriff in the Lander County Sheriff’s Department,
who reviewed photographs showing the condition of the bodies found
at the crash site. The Campbells argue that this evidence was
relevant to show the extent of the mental anguish suffered by
members of Campbell’s family. Mrs. Campbell and Marisol Campbell,
Campbell’s oldest daughter, apparently saw photographs of the crash
site and Campbell’s remains.
Keystone argues that because there was no dispute as to the
manner of Campbell’s death and the Campbells did not pursue a claim
for conscious pain and suffering on behalf of Campbell’s estate,
the excluded evidence had no probative value and was therefore
inadmissible under Federal Rule of Evidence 402. We disagree.
Evidence is relevant if it has “any tendency to make the existence
16
of any fact that is of consequence to the determination of the
action more or less probable than it would be without the
evidence.” Fed. R. Evid. 401. We have little doubt that the
knowledge that their husband and father was decapitated and badly
burned in the accident added to the Campbells’ mental anguish.
Keystone argues that, even if this evidence was relevant, the
district court properly refused to admit it under Rule 403 because
its probative value was substantially outweighed by its unduly
prejudicial nature and its tendency to inflame the jury. “Because
Rule 403 requires the exclusion of relevant evidence, it is an
extraordinary measure that should be used sparingly.” United
States v. Morris, 79 F.3d 409, 411 (5th Cir. 1996) (citing United
States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993); United States
v. McRae, 593 F.2d 700, 707 (5th Cir. 1979)). Nevertheless, “[a]
district court has broad discretion in assessing admissibility
under Rule 403,” and we review only for an abuse of that
discretion. Id. (citation omitted).
We turn first to the district court’s exclusion of photographs
of Campbell’s remains. The Advisory Committee’s Note to Rule 403
specifically notes the risk that proffered evidence will “induc[e]
a decision on a purely emotional basis” as a circumstance that may
require the exclusion of relevant evidence under Rule 403. Fed. R.
Evid. 403 advisory committee’s note. This circuit has explained
that “[p]hotographs of the victim bleeding profusely are classic
examples of such evidence.” Jackson v. Firestone Tire & Rubber
Co., 788 F.2d 1070, 1085 (5th Cir. 1986); see also Gomez v. Ahitow,
17
29 F.3d 1128, 1139 (7th Cir. 1994) (holding that the district court
erred in admitting “gruesome” photographs of victim’s body);
Ferrier v. Duckworth, 902 F.2d 545 (7th Cir. 1990) (holding that
the district court erred in admitting enlarged photographs of a
pool of the victim’s blood). The balance does not always weigh
against the admission of such evidence, however, as evidenced by
numerous decisions in this circuit upholding the district court’s
decision to admit such evidence. See In re Air Crash Disaster Near
New Orleans, 767 F.2d 1151 (5th Cir. 1985) (holding that the
district court did not abuse its discretion in admitting
photographs of the bodies of plane crash victims with third degree
burns where conscious pain and suffering was an issue); United
States v. Bowers, 660 F.2d 527, 529-30 (5th Cir. 1981) (holding
that the prejudice inherent in color photographs of a child’s
lacerated heart in a criminal prosecution for the child’s death did
not substantially outweigh the probative value of the evidence to
show cruel and excessive physical force); United States v. Kaiser,
545 F.2d 467, 476 (5th Cir. 1977) (holding that admission of
photographs of murder scene was not an abuse of discretion).
In this case, the photographs that the Campbells sought to
introduce created some risk that the jury’s decision would be based
on a visceral response to the images presented. Although the
evidence had some probative value, it was within the district
court’s discretion to exclude the evidence after weighing that
probative value against the risks of presenting these photographs
to the jury. Accordingly, we find that the district court did not
18
abuse its discretion in excluding the photographic evidence of
Campbell’s remains.
To the extent that the district court’s ruling precluded any
testimony regarding the condition of Campbell’s remains, however,
that ruling was an abuse of discretion.10 As discussed above, the
facts that Campbell was decapitated and his body burned were
probative of the mental anguish suffered by members of his family.
Moreover, any prejudice from the testimony regarding the bare facts
of the condition of his body would not give rise to “undue”
prejudice under Rule 403. Likewise, testimony alone would not have
the same potential to inflame the jury that the photographic
depictions of Campbell’s remains might have.
V.
The district court held the Campbells’ counsel, Daniel J.
Petroski, Jr., in criminal contempt for violating a pretrial order
of the court granting Keystone’s motion in limine to preclude the
introduction of evidence of Keystone’s financial status during the
liability and compensatory damages portion of the trial. The court
sentenced Petroski under the criminal contempt statute, 18 U.S.C.
10
Although both parties brief this issue as though the district
court ruled that no evidence of the condition of Campbell’s body
could be introduced, the district court acknowledged at various
junctures that the fact of Campbell’s decapitation, as
distinguished from the photographs, could be presented to the jury.
At one point, the district court indicated that it would allow Mrs.
Campbell to testify that “she knows that [her husband] was
decapitated and that plays on her mind.” Appellants apparently
chose not to pursue this line of testimony, but are not precluded
from attempting to do so on remand.
19
§ 401, to a twenty-four hours imprisonment, which he served after
the jury was dismissed. A divided panel of this court reversed the
district court’s judgment of criminal contempt against Petroski on
the ground that the evidence failed to establish beyond a
reasonable doubt that the order violated was sufficiently specific.
See United States v. Daniel J. Petroski, Jr., No. 96-20933, slip
op. at 1 (5th Cir. Nov. 19, 1997).
After trial, Keystone filed a motion for sanctions, seeking
compensation for the delay and expense that resulted from
Petroski’s persistence in disregarding various district court
orders. The motion emphasized that Petroski had repeatedly
disregarded the court’s order not to pursue a line of questioning
regarding the difference between Keystone and two related companies
and ignored numerous subsequent admonishments at the bench to
refrain from this line of questioning. The district court granted
Keystone’s motion and ordered Petroski and his law firm to pay
Keystone $15,470.20 for Keystone’s reasonable costs, expenses, and
attorney’s fees incurred as a result of Petroski’s violation of the
court’s order.
On appeal, Petroski argues that the post-trial monetary award,
in addition to the imprisonment already imposed, violated 18 U.S.C.
§ 401, which allows the district court to impose either a fine or
imprisonment for criminal contempt of its authority, but not both.
18 U.S.C. § 401;11 Green v. United States, 356 U.S. 165, 78 S. Ct.
11Section 401 gives the district court authority “to punish by
fine or imprisonment, at its discretion . . . contempt of its
authority . . . .” 18 U.S.C. § 401 (emphasis added). By contrast,
20
632, 642 (1958); In re Bradley, 318 U.S. 50, 63 S. Ct. 470, 470
(1943); United States v. Holmes, 822 F.2d 481, 486 (5th Cir. 1987);
United States v. Hilburn, 625 F.2d 1177, 1181 & n.4 (5th Cir.
1980). The district court, however, did not award Keystone
attorney’s fees and costs under 18 U.S.C. § 401. Rather, the award
was made in response to a motion for sanctions brought under 28
U.S.C. § 1927 and Federal Rule of Civil Procedure 16(f).12 That we
have characterized an award under 28 U.S.C. § 1927 as “penal,” FDIC
v. Conner, 20 F.3d 1376, 1384 (5th Cir. 1994); Browning v. Kramer,
931 F.2d 340, 344 (5th Cir. 1991), does not transform every award
under that section into a fine under 18 U.S.C. § 401.13Accordingly, we affirm the district court’s order granting
Keystone’s motion for sanctions.
VI.
a court may punish civil contempt by both a fine and imprisonment.
See In re Dinnan, 625 F.2d 1146, 1150 (5th Cir. 1980) (citation
omitted).
12
Appellants correctly note that we have required district
courts to make detailed findings when making an award under 28
U.S.C. § 1927. FDIC v. Conner, 20 F.3d 1376 (5th Cir. 1994);
Browning v. Kramer, 931 F.2d 340 (5th Cir. 1991). To the extent
that appellants argue that the district court’s order should be
vacated for lack of such findings, they abandoned this issue by
failing to raise it in their initial brief. Stephens v. C.I.T.
Group/Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir. 1992)
(issues cannot be raised for the first time in reply briefs).
13
Appellants do not argue that the sanctions posed a double
jeopardy problem, only that the sanctions violated 18 U.S.C. § 401.
For the Supreme Court’s most recent pronouncement on the
circumstances in which a monetary penalty constitutes a criminal
punishment for double jeopardy purposes, see Hudson v. United
States, ___ U.S. ___, 118 S. Ct. 488 (1997).
21
Keystone argued in the court below that Campbell was its
employee, and thus he was entitled to recover only under worker’s
compensation. Appellants maintained that Campbell was an
independent contractor. At the close of appellants’ evidence,
Keystone moved for judgment as a matter of law on this issue. The
district court denied the motion and submitted the issue to the
jury, which found that Campbell was an independent contractor.
Keystone cross-appeals the district court’s denial of its post-
verdict motion for judgment as a matter of law on this issue.
Because Keystone failed to renew its motion for judgment as a
matter of law at the close of all evidence, we review for plain
error. See Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir.
1996). In reviewing for plain error, we determine “not whether
there was substantial evidence to support the jury verdict, but
whether there was any evidence to support the jury verdict.”
Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 957 (5th
Cir. 1993).
Under Texas law, whether a person is an employee or an
independent contractor is a question of fact, Halliburton v. Texas
Indem. Ins. Co., 213 S.W.2d 677 (Tex. 1948), unless there is no
dispute as to the controlling facts and only one reasonable
conclusion can be drawn from those facts, Industrial Indem.
Exchange v. Southard, 160 S.W.2d 905, 906 (Tex. 1942); Wackenhut
Corp. v. Perez, 865 S.W.2d 86 (Tex. App.—Corpus Christi 1993, writ
denied) (citing Southard).
22
The central inquiry on this issue is whether Keystone had “the
right to control the progress, details, and methods of operations
of [the claimant’s] work.” Thompson v. Travelers Indem. Co., 789
S.W.2d 277, 278 (Tex. 1990)(citing Newspapers, Inc. v. Love, 380
S.W.2d 582, 590 (Tex. 1964)). A number of factors are relevant to
this determination, including “the method of payment, whether by
the time or by the job.” Pitchfork Land & Cattle Co. v. King, 346
S.W.2d 598, 603 (Tex. 1961); Southard, 160 S.W.2d at 906.
The Campbells presented evidence that Keystone paid Campbell
a $10,000 lump sum for his first two months of work and that
Keystone recorded this payment in its subcontractor general file
rather than in its employment records. The manner in which
Campbell was paid was in contrast with Keystone’s practice of
paying all its other employees on an hourly basis. Contrary to
Keystone’s assertion, that this advance payment was made at
Campbell’s insistence does not necessarily militate against
concluding that the lump-sum payment supports the jury’s
independent contractor finding.
Further, Gil Mallinckrodt, the president of Keystone,
testified that he did not give Campbell instructions regarding the
day-to-day performance of his duties, other than determining when
survey flights would take place. Mallinckrodt also agreed that
when Campbell was not flying, there “were no controls on whatever
hours or whatever it was he was doing over there out in the field.”
Mallinckrodt’s testimony and the lump sum nature of Campbell’s
23
compensation provide some evidence to support the jury’s verdict.
Under the plain error standard, no more is required.14
VII.
Accordingly, we VACATE the judgment of the district court and
REMAND for a new trial on liability and damages.15 We AFFIRM the
district court’s order granting Keystone’s motion for sanctions.
14
The Campbells also complain that the district court erred by
disregarding the separate corporate existences of Keystone and its
subsidiaries, Precision and Airmag, which were dismissed prior to
trial, and that this error influenced the jury’s failure to find
that the pilot was negligent. The Campbells sought to introduce
evidence that these were different corporate entities in connection
with their claim that Campbell was not Keystone’s employee. The
district court ruled that the Campbells were not entitled to
explore the differences between the companies because they had
pleaded only that Campbell was an independent contractor not that
he was an employee of the other companies. The district court
further orally instructed the jury that they could consider the
companies to be interchangeable, but that “legally they are not
interchangeable.” We note that, under Texas law, the separate
corporate existence of an entity is generally respected unless
evidence is adduced to justify its disregard. See Lucas v. Texas
Indus., Inc., 696 S.W.2d 372, 374 (Tex. 1984). Assuming without
deciding that the district court erroneously refused to permit the
Campbells to present evidence of the separate corporate existences
of Keystone, Airmag, and Precision, the only point on which the
district court’s ruling created a risk of confusion was the
employee/independent contractor issue, a point on which the
Campbells prevailed. We fail to see how the disregard of the
corporate distinctions among Keystone, Airmag, and Precision could
have influenced the jury’s failure to find that the pilot was
negligent.
15
Because the jury’s finding that Campbell was an independent
contractor was separate from and unaffected by Wandell’s testimony,
this issue need not be retried. See Maxey v. Freightliner Corp.,
727 F.2d 350 (5th Cir. 1984)(citations omitted); Wright et al.,
Federal Practice and Procedure, Civil § 2814, at 150 (2d ed.
1995)(“It therefore now may be regarded as settled that if an error
at trial requires a new trial on one issue, but this issue is
separate from the other issues in the case and the error did not
affect the determination of the other issues, the scope of a new
trial may be limited to the single issue.”).
24