Anderson, Jessie v. Griffin, Roy

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1748, 04-2324
JESSE ANDERSON and JESTINE TURNBOUGH,
Plaintiffs-Appellants,
v.
ROY GRIFFIN, et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:98-CV-565-PS—Philip P. Simon, Judge.
____________
ARGUED NOVEMBER 2, 2004—DECIDED FEBRUARY 7, 2005
____________
Before POSNER, MANION, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The jury in this diversity suit
for damages arising out of a highway collision returned
a verdict for the defendants. The appeal challenges the
voir dire, an instruction, the judge’s refusal to grant a new
trial on the ground that the verdict was against the weight
of the evidence, and the computation of court costs. The
substantive issues are governed by the common law
of Indiana; the others, of course, by federal law.
Roy Griffin was a truck driver employed by Active
Transportation Company. One night, as he was driving
a semi-tractor truck, manufactured by International Truck
2 Nos. 04-1748, 04-2324
and Engine Corporation, on an interstate highway in
Indiana, the driveline suddenly broke (the driveline, or
drive shaft, transmits power from the engine to the
rear axle), severing the connection between the truck’s brake
pedal and the brakes and extinguishing the brake lights.
Debris kicked up from the surface of the highway struck a
pick-up truck driven by Bane Elliott that was traveling
behind the semi. Griffin tried to maneuver the semi off the
road but was not completely successful and Elliott’s pick-up
truck crashed into the part that had not cleared the high-
way. A car driven by plaintiff Anderson (in which her sister,
the other plaintiff, was a passenger) was traveling on the
highway behind Elliott and ploughed into the wreckage
from the collision between the two trucks, injuring the
plaintiffs.
Three weeks earlier, Active Transportation Company had
taken the semi into Uhl Truck Sales, a dealer in International
trucks, because of looseness in the driveline. Joints (“yokes”)
at various intervals along the driveline act as shock absorb-
ers, and some of these were loose. Uhl’s repairman tight-
ened them. He did no work on the slip yoke, which is in the
middle of the driveline and is the place at which the
driveline broke.
The plaintiffs sued Active Transportation, Griffin, and
Elliott, as well as Uhl Truck Sales, but settled during the
trial with all but the last. (The defendants continue to be
involved in the litigation, however, because of the dispute
over court costs discussed at the end of this opinion.) An
expert witness testified for the plaintiffs that on the basis of
his examination of the semi-tractor truck long after the
accident he believed that Uhl had negligently failed to
repair the driveline when the truck was brought into its
shop before the accident. Uhl’s expert riposted that there
had been no negligence and speculated that the accident
Nos. 04-1748, 04-2324 3
had been caused by debris on the highway (“road junk”)
that the semi might have struck or that might have been
yanked up and against the driveline by chains hanging
down from the truck’s chassis (why the loose
chains—whether to serve as a ground for a static-electricity
buildup in the tractor, for example— is unexplained). The
plaintiffs’ expert rejoined that because of the speed at which
the driveshaft rotates (27 times a second) and the fact that
the slip yoke has a housing around it, a piece of road junk
would be highly unlikely to strike the yoke with enough
force to break the driveline at that point. But the jury sided
with Uhl.
The first trial error occurred, according to the plaintiffs,
when the judge refused during the voir dire to propound
questions to two of the prospective jurors whom the plain-
tiffs’ lawyer suspected of being “skinheads.” He feared that
skinheads would be prejudiced against the plaintiffs, both
of whom are black. The term “skinheads” generally refers to
fierce racists, often neo-Nazi in ideology, who shave their
heads, e.g., Walter M. Hudson, “Racial Extremism in the
Army,” 159 Military L. Rev. 1, 19-22 (1999), though there is
also a group called “Skinheads Against Racial Prejudice,”
whose specialty is breaking up Ku Klux Klan rallies. Church
of the American Knights of the Ku Klux Klan v. City of Gary, 334
F.3d 676, 680 (7th Cir. 2003). The jurors in question, who
had either shaven heads or very close-cropped hair, were a
bearded tool-and-die maker and a young man who had
recently spent four years in the army. Both lived in or near
towns that had very few black residents. In common with
the other prospective jurors the two had been asked about
their background, education, and so forth, including what
newspapers or magazines they read and what clubs or other
organizations they belonged to, and nothing in their
answers had suggested that they were skinheads. Nor did
4 Nos. 04-1748, 04-2324
they have any visible tattoos that might have furnished
a clue to membership in a racist organization. Neverthe-
less the plaintiffs’ lawyer wanted the judge to ask the
two whether they were racists or members of racist organi-
zations. The judge refused. The lawyer then used one of
his three peremptory challenges to remove the tool-and-
die maker from the jury.
We asked at argument why he hadn’t used another of
his three peremptory challenges to remove the other
suspected skinhead. He answered that he had to use both
his remaining peremptory challenges to remove jurors who
he believed disliked him. The implication is that it was
his own ineptitude in managing to antagonize jurors during
the voir dire, rather than the judge’s refusing to allow him
to pursue the skinhead issue, that resulted in the second
suspected skinhead’s remaining on the jury. What is more,
if the judge had asked the two suspects whether they were
racists and they had convinced the judge that they were not,
the plaintiffs’ lawyer would still have had to try to remove
them from the jury, as they would know from the plaintiffs’
race where the questions had come from and would proba-
bly be offended to have inferences of racism drawn from
their personal appearance. And then the lawyer would have
been in the same pickle, having three peremptory challenges
but needing four—two for the suspected skin-
heads (exonerated and resentful) and two for the jurors
whom he had antagonized on other grounds.
The judge committed no error in refusing to go down
the path marked for him by the plaintiffs’ lawyer. There was
no racial issue in the case. Corporate defendants have no
race; and in fact the representative of Active Transportation
at the defendants’ counsel table during the trial was a black
person. Jurors—poorly paid conscripts who play an impor-
tant role in the American system of justice—have a right not
Nos. 04-1748, 04-2324 5
to be humiliated; questions about their personal appearance,
a subject about which most people are sensitive—questions
such as “Why is your hair so long?” “Why are you so fat (or
so thin)?” “Why are your shirt tails hanging out?” “Are you
making a political statement by wearing black lipstick and
a ring through your nose?”—should therefore be avoided
unless necessary to allay reasonable concerns about a
juror’s impartiality. See Tyus v. Urban Search Management,
102 F.3d 256, 262 (7th Cir. 1996); United States v. Banks, 687
F.2d 967, 974-75 (7th Cir. 1982); United States v. Barnes, 604
F.2d 121, 140 (2d Cir. 1979); cf. Press-Enterprise Co. v. Superior
Court of California, 464 U.S. 501, 510-12 (1984).
Many men and even a few women shave their head as
a fashion statement (Michael Jordan, the former basketball
star, and Richard Grasso, the deposed chairman of the New
York Stock Exchange, being conspicuous but not iso-
lated examples); some of course lose all their hair because
they are undergoing chemotherapy. Balding young men
sometimes decide to go all the way. American soldiers often
wear their hair cut so short that their heads look shaven,
and that may well be the explanation for the “skinhead”
appearance of the juror who had left the army recently. The
presence of a shaved head is feeble grounds for suspecting
that a person is a skinhead, even if he lives in, let alone
merely near, an almost all-white community, as tens of
millions of whites do. The questions about reading matter
and organizations should have smoked out the presence of
any skinheads, if they answered the questions truthfully; if
they did not, neither would they answer the question “Are
you a skinhead?” truthfully were it put to them by the
judge.
Next the plaintiffs complain that the judge should not
have instructed the jury that
with respect to the negligence claims of Plaintiffs,
6 Nos. 04-1748, 04-2324
Defendants owed Plaintiffs only the duty to exercise
reasonable care. The mere fact that an accident oc-
curred, or that the Plaintiffs were injured or otherwise
sustained damages, does not mean that either the
Plaintiffs, or the Defendants, were negligent. Negligence
can never be inferred solely, and without more, from
the occurrence of an accident and resulting damage.
This is a correct, indeed fundamental, proposition of tort
law. That an accident occurs and someone is injured does
not establish liability under a negligence standard; the
plaintiff has to show that the injury resulted from the
defendant’s failure to exercise due care. Nevertheless the
plaintiffs insist that the instruction is improper under
Indiana law. They point out that in Miller v. Alvey, 207
N.E.2d 633, 636-37 (Ind. 1965), the Indiana Supreme
Court said:
The expression “unavoidable accident” or “pure acci-
dent” is not an affirmative defense and has no particular
connotation in modern pleading of negligence cases.
Such terminology adds nothing to the issues before the
court or jury and as the expressions are ambiguous and
particularly confusing to lay jurors, their use in instruc-
tions is undesirable and unwise and any statements in
prior decisions of this state construed as authorizing
instructions on “pure accident” or “unavoidable acci-
dent” are hereby disapproved.
See also White v. Evansville American Legion Home Ass’n,
210 N.E.2d 845, 846 (Ind. 1965); Weinand v. Johnson, 622
N.E.2d 1321, 1323-26 (Ind. App. 1993); Pierce v. Horvath, 233
N.E.2d 811, 815-17 (Ind. App. 1968). Similar statements
can be found in cases from other states. E.g., Fry v. Carter,
825 A.2d 1042, 1050-55 (Md. 2003); Randle v. Allen, 862 P.2d
1329, 1334-36 (Utah 1993).
Nos. 04-1748, 04-2324 7
There is to begin with a question whether the propriety of
a “mere accident” instruction is a matter of state or federal
law. It is the former if it is substantive, the latter if it is
procedural, with the line being drawn on the basis
of whether the issue is one predominantly of substan-
tive state policy or one predominantly concerning the
structure or administration of the court system, Fidelity
& Deposit Co. v. Rotec Industries, Inc., 392 F.3d 944, 949
(7th Cir. 2004); Taco Bell Corp. v. Continental Casualty Co., 388
F.3d 1069, 1076 (7th Cir. 2004); Metfirst Financial Co. v. Price,
991 F.2d 414, 415-16 (7th Cir. 1993); Rideau v. Parkem Indus-
trial Services, Inc., 917 F.2d 892, 895 (5th Cir. 1990), including
the management of the jury. Byrd v. Blue Ridge Rural Electric
Co-op, Inc., 356 U.S. 525, 537-39 (1958); Muzikowski v.
Paramount Pictures Corp., 322 F.3d 918, 924 (7th Cir. 2003);
AM Int’l, Inc. v. Graphic Management Associates, Inc., 44 F.3d
572, 576-77 (7th Cir. 1995); Allstate Ins. Co. v. James, 845 F.2d
315, 318 (11th Cir. 1988). Every court system, including the
federal, has its own criteria for jury selection, its own
procedures for voir dire, its own policy on whether to give
preliminary instructions at the outset of a case (which may
reduce the need for particular cautionary instructions at the
end), its own rules of evidence viewed as screens that limit
and shape the evidence presented to the jury, its own
conception of the proper division of responsibility between
judge and jury, which in civil cases tried by federal courts
is governed ultimately by the Seventh Amendment—and, of
critical importance in this case, its own methods (some in
the above list) for preventing jury confusion. What is
confusing to jurors in Indiana state trial courts is not
necessarily confusing to jurors in federal district courts; and
the judgment is to be made independently by the judges in
the different systems. The instruction we quoted is not
only unexceptionable as a statement of Indiana law,
McConnell v. Porter Memorial Hospital, 698 N.E.2d 865, 869
8 Nos. 04-1748, 04-2324
(Ind. App. 1998); Midwest Commerce Banking Co. v. Livings,
608 N.E.2d 1010, 1013 (Ind. App. 1993); Ogden Estate v.
Decatur County Hospital, 509 N.E.2d 901, 902 (Ind. App.
1987); it is simple, lucid, and, in our judgment, unlikely
to confuse a federal jury.
Or a state jury—for the Indiana courts themselves would
not be troubled by the instruction. They object to terms
like “pure accident,” “mere accident,” and “unavoidable
accident,” but not to telling the jury that it may not infer
negligence from the fact that an accident occurred. Perry
v. Goss, 255 N.E.2d 923, 926 (Ind. 1970); Kostidis v. General
Cinema Corp., 754 N.E.2d 563, 571-74 (Ind. App. 2001);
Weinand v. Johnson, supra, 622 N.E.2d at 1325; Anderson
v. Baker, 335 N.E.2d 831, 834 (Ind. App. 1975). The dis-
tinction is fine, even tortured—even perhaps backwards.
The Indiana courts have condemned reference to “pure,”
“mere,” or “unavoidable” accident in jury instructions
lest some jurors think that the word “accident” implies at
least some degree of fault and therefore that if an “accident”
does not create liability perhaps only deliberate wrongdoing
does. The challenged instruction surely dispelled that
mistaken impression. But it would have done so even more
surely had the judge told the jury that a “mere” or “pure” or
“unavoidable” accident does not create liability; for those
adjectives serve emphatically to distinguish faultless
accidents from those that may involve fault.
Reference to “unavoidable accident” should, we agree, be
avoided, but for an unrelated reason: anachronism. Miller v.
Alvey, supra, 207 N.E.2d at 636. In the early common law,
before the negligence standard crystallized, unavoidable
accident was an affirmative defense to a tort case. Weaver v.
Ward, Hobart 134, 80 Eng. Rep. 284 (K.B. 1616), Randle
v. Allen, supra, 862 P.2d at 1334-35; Butigan v. Yellow Cab Co.,
320 P.2d 500, 504 (Cal. 1958); Stephen G. Gilles, “The
Inevitable Accident in Classical English Tort Law,” 43 Emory
Nos. 04-1748, 04-2324 9
L.J. 575 (1994). But that is a detail; all that matters here is
that the instruction was not confusing.
The plaintiffs further complain that the verdict in Uhl’s
favor was against the weight of the evidence. They argue
that the defendant’s expert lacked knowledge of drive-
lines and experience in diagnosing the causes of acci-
dents involving heavy trucks and that the “road junk”
explanation for the accident was implausible. Both points
are wide of the mark. The plaintiffs do not argue that the
defendant’s expert should have been forbidden under the
Daubert standard to testify because he lacked relevant
expertise; and once the expert passes the Daubert thresh-
old and is allowed to testify, it is for the jury to weigh
his credentials and experience against those of the opposing
expert. Valbert v. Pass, 866 F.2d 237, 240-41 (7th Cir. 1989);
Wyler Summit Partnership v. Turner Broadcasting System, Inc.,
235 F.3d 1184, 1192 (9th Cir. 2000); Streber v. Hunter, 221
F.3d 701, 726 (5th Cir. 2000); Ferebee v. Chevron Chemical Co.,
736 F.2d 1529, 1535 (D.C. Cir. 1984).
As for the conjecture by the defendant’s expert that the
accident was caused by “road junk,” yes, it was implausible;
but that is not the test. As we said in Spitz v. Commissioner,
954 F.2d 1382, 1384 (7th Cir. 1992) (quoted in United States
v. Beard, 354 F.3d 691, 692-93 (7th Cir. 2004)), “the plausibil-
ity of an explanation depends on the plausibility of the
alternative explanations.” See also Bammerlin v. Navistar Int’l
Transportation Corp., 30 F.3d 898, 902 (7th Cir. 1994);
Sandoval v. Acevedo, 996 F.2d 145, 150 (7th Cir. 1993); United
States v. Morales, 902 F.2d 604, 607-08 (7th Cir. 1990); United
States v. Crosby, 75 F.3d 1343, 1347 (9th Cir. 1996); Ronald J.
Allen & Brian Leiter, “Naturalized Epistemology and the
Law of Evidence,” 87 Va. L. Rev. 1491, 1527-29 (2001). Events
that have a very low antecedent probability of occurring
nevertheless do sometimes occur (the Indian Ocean tsu-
10 Nos. 04-1748, 04-2324
nami, for example); and if in a particular case all the
alternatives are ruled out, we can be confident that the case
presents one of those instances in which the rare event did
occur. If the jury found, as the evidence permitted it to do,
that the truck was in good shape when it left Uhl’s shop just
twenty days before the driveline collapsed, then the likeliest
alternative explanations for the accident are either that some
deeply hidden defect that Uhl could not have been expected
to discover had caused the accident or some external force,
such as road debris somehow thrown against the yoke by
the motion of the truck; in neither event would Uhl be
liable.
Last, the plaintiffs challenge the award of court costs
pursuant to Fed. R. Civ. P. 54(d)(1). For obscure reasons,
given the “American rule” that requires each side to a
lawsuit to bear its legal expenses rather than making the
loser reimburse the winner’s reasonable expenses, the
law allows the winning party to recover from the loser
the winner’s “court costs,” a stereotyped list of usually
though not always modest items of expense, exclusive
of legal fees. (They amount here to a shade under $13,000.)
The rule is generally thought a vestige of the English “loser
pays” rule, e.g., John M. Blumers, Note, “A Practice
in Search of a Policy: Considerations of Relative Finan-
cial Standing in Cost Awards Under Federal Rule of
Civil Procedure 54(d)(1),” 75 B.U.L. Rev. 1541, 1562-63, 1566
(1995), although insofar as the main objection to the English
rule is that calculating a reasonable attorney's fee is difficult
and cumbersome, it falls away when the calculation
is limited to the items taxable as costs. Baez v. U.S. De-
partment of Justice, 684 F.2d 999, 1002-04 (D.C. Cir. 1982) (en
banc) (per curiam); see generally Vincennes Steel Corp. v.
Miller, 94 F.2d 347, 348-49 (5th Cir. 1938); Trinidad Asphalt
Paving Co. v. Robinson, 52 F. 347 (E.D. Mich. 1892); 10
Nos. 04-1748, 04-2324 11
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2665, pp. 199-202 (3d ed.
1998). The taxable items, such as making copies of dep-
ositions and other documents, and filing and witness
fees, are listed in a statute, 28 U.S.C. § 1920; Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987); Cefalu
v. Village of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000);
Calderon v. Witvoet, 112 F.3d 275, 276 (7th Cir. 1997) (per
curiam); In re Two Appeals Arising Out of San Juan Dupont
Plaza Hotel Fire Litigation, 994 F.2d 956, 962 (1st Cir. 1993),
and statutes and court rules specify the amount that may be
assessed for each allowed item. E.g., 28 U.S.C. § 1821; Cengr
v. Fusibond Piping Systems, Inc., 135 F.3d 445, 455-56 (7th Cir.
1998). So satellite litigation is minimized.
The plaintiffs do not argue that impermissible items
were included in the defendants’ bill of costs or that the cost
awarded per item pierced the ceiling set by rules or statute.
They argue instead that the defendants took more deposi-
tions than they had to and in this and other ways drove up
their court costs unnecessarily. This is a bad argument
because, as we have had occasion to note recently, a pains-
taking judicial inspection of fee claims (and equally cost
claims) is unnecessary when there is a market constraint on
running up excessive expenses. Taco Bell v. Continental
Casualty Co., supra, 388 F.3d at 1075. When taking deposi-
tions the defendants could have had no confidence that they
were going to win the case and thus be able to submit a bill
of costs, or that if they won and therefore could submit such
a bill the plaintiffs would have the wherewithal to pay it. So
they had an incentive not to take unnecessary depositions
or otherwise incur excessive costs. That incentive was a
better check on extravagance than would be a court’s
effort to decide after the fact whether a particular expendi-
ture was sensible given its anticipated contribution to a
favorable outcome of the litigation.
12 Nos. 04-1748, 04-2324
The judge did not indicate how the costs should be
divided between the two plaintiffs. The cases say that the
presumptive rule is joint and several liability unless it
is clear that one or more of the losing parties is respon-
sible for a disproportionate share of the costs. White v.
Sundstrand Corp., 256 F.3d 580, 585-87 (7th Cir. 2001);
Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 496-97
(8th Cir. 2002); In re Paoli Railroad Yard PCB Litigation,
221 F.3d 449, 468-71 (3d Cir. 2000); cf. Southern Agency Co. v.
LaSalle Casualty Co., 393 F.2d 907, 915 and n. 7 (8th Cir.
1968). Ordinarily when parties are jointly and severally
liable, it means that each party is fully liable, subject to
the constraint that the claimant cannot recover more
than his total entitlement. This leaves him free to pick
and choose and if he wants collect the total entitlement from
one of several liable persons—unless there is a rule permit-
ting contribution among joint tortfeasors, or in other words
permitting a liable party who has been charged more than
his proportionate share (but not because he was causally
responsible for more than a proportionate share, in which
event it would not really be disproportionate) to obtain
compensation from his co-tortfeasors. A brief dictum in
Concord Boat Corp. v. Brunswick Corp., supra, 309 F.3d at 497,
assumes that there is such a rule of contribution in regard to
court costs but does not discuss the pros and cons; the other
cases that embrace the rule of joint and several liability for
costs do not mention contribution at all.
Courts have become reluctant to recognize a right
of contribution as a matter either of federal common law
or of statute. Texas Industries, Inc. v. Radcliff Materials, Inc.,
451 U.S. 630 (1981) (Sherman Act); Northwest Airlines, Inc. v.
Transport Workers Union of America, AFL-CIO, 451 U.S.
77 (1981) (Title VII and Equal Pay Act); Bowers v. National
Collegiate Athletic Association, 346 F.3d 402, 429-33 (3d Cir.
Nos. 04-1748, 04-2324 13
2003) (Title II of ADA and Rehabilitation Act); Herman
v. RSR Security Services Ltd., 172 F.3d 132, 143-44 (2d
Cir. 1999) (Fair Labor Standards Act); In re Walker, 51 F.3d
562, 565-68 (5th Cir. 1995) (section 362 of Bankruptcy Code);
Mortgages, Inc. v. United States District Court, 934 F.2d 209,
212-14 (9th Cir. 1991) (per curiam) (False Claims Act);
Fleming v. Lind-Waldock & Co., 922 F.2d 20, 27-28 (1st Cir.
1990) (Commodities Exchange Act); Getty Petroleum Corp. v.
Island Transportation Corp., 862 F.2d 10, 16 (2d Cir. 1988)
(Lanham Act). The reluctance is understandable. A right of
contribution is not required to achieve either
the compensatory or the deterrent objectives of the law. The
first point is obvious, the second only a little less so. One or
more of the defendants may get off scot-free because the
plaintiff has collected the entire judgment from another
defendant; that is true. But not knowing beforehand whom
the plaintiff will go against, each potential defendant has an
expectation of being the unlucky one, and that expectation
performs the deterrent function. In general, then, all that a
right of contribution does is add to the costs of litigation,
and so unless there is a compelling reason to suppose that
the legislature would want such a right to be enforced, as
the Supreme Court found to be the case (unusually) in
Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S.
286 (1993) (contribution under the SEC’s Rule 10b-5), it will
not be.
The bearing of the cases that we have cited and of the
considerations that support them was not considered by the
court in the Concord case. We are given no reason to think
that recognizing a right of contribution with regard to court
costs would serve any purpose other than to encumber
federal litigation, which needs no additional encumbrances.
No showing has been made that a particular plaintiff or
plaintiffs was disproportionately responsible for the costs
14 Nos. 04-1748, 04-2324
that the judge has awarded against them, and so each
plaintiff is jointly and severally liable for the costs that the
judge awarded to the defendants.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-7-05