377 F.3d 624 | 6th Cir. | 2004
Before: BOGGS, Chief Judge; GILMAN, Circuit Judge;
UNITED STATES COURT OF APPEALS and MARBLEY, District Judge. [*] FOR THE SIXTH CIRCUIT _________________ _________________ COUNSEL G ALEN B ECK , as (cid:88) ARGUED: Mark R. Bendure, BENDURE & THOMAS, (cid:45) representative of the estate of Detroit, Michigan, for Plaintiffs. Joseph Nimako, (cid:45) Eugene Beck; and S HARON CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia, (cid:45) No. 01-2723 B ECK , Michigan, Mary Massaron Ross, PLUNKETT & COONEY, (cid:45) > Detroit, Michigan, for Defendants. ON BRIEF: Mark R. Plaintiffs-Appellants, (cid:44) Bendure, BENDURE & THOMAS, Detroit, Michigan, Grant (cid:45) W. Parsons, PARSONS, RINGSMUTH, Traverse City, v. (cid:45) Michigan, for Plaintiffs. Joseph Nimako, CUMMINGS, (cid:45) McCLOREY, DAVIS & ACHO, Livonia, Michigan, Mary (cid:45) E DWARD A. H AIK , Massaron Ross, PLUNKETT & COONEY, Detroit, (cid:45) individually and officially for Michigan, for Defendants. (cid:45) Manistee County; and (cid:45) _________________ R OBERT C. H ORNKOHL , (cid:45) individually and officially as (cid:45) OPINION (cid:45) Director of Public Safety for _________________ (cid:45) City of Manistee, (cid:45) BOGGS, Chief Judge. The plaintiffs in this 42 U.S.C. Defendants, (cid:45) § 1983 civil rights suit appeal from the judgment entered (cid:45) against them after a jury verdict for the defendants. The
M ANISTEE C OUNTY ; and C ITY (cid:45) plaintiffs challenge the correctness of several of the district OF M ANISTEE , (cid:45) court’s rulings on the admission of evidence and other trial (cid:45) matters, and argue that the effect of these rulings substantially Defendants-Appellees. (cid:78) prejudiced their case. Though we do not accept all of the plaintiffs’ contentions, we agree that a number of errors Appeal from the United States District Court occurred, and that these were sufficiently prejudicial to for the Western District of Michigan at Grand Rapids. require a new trial. We therefore reverse and remand. No. 97-00533—Robert Holmes Bell, Chief District Judge. Argued: June 18, 2003 [*] The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation. 1 No. 01-2723 Beck, et al. v. Haik, et al. 3 4 Beck, et al. v. Haik, et al. No. 01-2723 I Kowalkowski, who was not formally trained or certified in dive rescue. By the time of Mr. Beck’s plunge, it included This case arose from the June 28, 1995, drowning death of several officers who were certified in diving, but not in dive Eugene Beck, who dropped from a bridge (apparently after rescue. jumping) into the Manistee River in Manistee, Michigan. The plaintiffs contend that Mr. Beck died because officials of the After a fatal drowning accident in the Manistee River in City and County of Manistee, pursuant to a municipal policy, 1993, a group of trained civilian divers formed a private prevented qualified civilian rescue divers on the scene from rescue organization called the Manistee Search and Rescue saving him, even though the city and county provided no Dive Team (“MSRDT”). The MSRDT entered into a contract meaningful alternative rescue service of their own. In an to provide rescue and recovery services to the City of earlier, unpublished, opinion, Beck v. Haik , No. 99-1050, Manistee as needed. The members of the MSRDT carried 2000 WL 1597942 (6th Cir. Oct. 17, 2000), we held that these pagers, which the city authorities could use to summon the allegations, if proven, were jointly sufficient to establish a MSRDT. A protocol developed whereby the City would page claim under 42 U.S.C. § 1983 for violation of Beck’s due the county dive team first in case of a water emergency, and process rights under the Fourteenth Amendment. 2000 WL would call out the MSRDT if the county team was likely to 1597942 at *4. We upheld the district court’s grant of have difficulty responding promptly. However, a city summary judgment dismissing plaintiffs’ other claims. Id. at memorandum on this subject, produced at trial, included a *9. handwritten annotation that “Sheriff Ed” would “decide”
when the MSRDT would be called out – apparently a reference to then-Sheriff Edward Haik. [1]
On remand, the district court held a seven-day trial. Each element of the plaintiffs’ case was significantly contested: (1) whether the defendants city and county had a policy that The plaintiffs presented evidence that some local officials prevented private rescuers from assisting Mr. Beck; were hostile to the MSRDT’s activities. Art Krause, the (2) whether the rescue services made available by the founder of the MSRDT, testified that Sheriff Haik personally defendants were sufficiently effective to constitute a told him that he would be subject to arrest if he interfered “meaningful alternative” to private rescue; and (3) whether with the county’s operations at a water accident scene. the Becks were able to show causation, by establishing that Michael Mosack, a Michigan State Police trainee and also a Mr. Beck would likely have lived if private rescuers had been member of the MSRDT, likewise testified that Haik allowed to dive after him. threatened him with criminal charges if he entered the water
at an accident scene. Fred LaPoint, a City of Manistee The following facts emerged at trial. In 1993, the Manistee firefighter and another MSRDT member, testified that he had County Sheriff’s Department formed a county dive team. The seen a memo from Manistee County Sheriff Edward Haik sheriff’s department concluded after consultation with an stating that all water accident scenes were to be treated as expert that the county was too large to permit this dive team to be held out to the public as a “rescue” team; instead, it was deemed a “recovery” team. There was evidence that this term [1]
Sheriff Haik was originally named in the Becks’ complaint as a connoted the simple recovery of bodies, rather than the rescue defendant in his individual capacity. The district court granted him (and and resuscitation of drowning victims. For a time, the only the other individual defendant, Chief Hornkohl) summary judgment on the ground of qualified immunity. W e affirmed that ruling in the Becks’ member of the dive team was then-deputy sheriff Dale
previous ap peal. Beck , 2000 WL 1597942 at *7. No. 01-2723 Beck, et al. v. Haik, et al. 5 6 Beck, et al. v. Haik, et al. No. 01-2723 “crime scenes,” and that anyone who entered such a scene Firefighter LaPoint also responded to the call. LaPoint without his permission would be subject to arrest. While no drove to the scene in a city rescue ambulance designated R5. official copy of the alleged memo was produced at trial, However, LaPoint testified that shortly after he arrived, he several other witnesses acknowledged that they had either received another call telling him that R5 had been “released.” seen or heard of such a memo. Sergeant Douglas Cermak of This, he said, implied that the accident was no longer the Sheriff’s Department dive team testified that he had seen considered a rescue scene, but was instead a body recovery a “crime scene” memo, and that Haik had instructed him to scene. LaPoint left the scene shortly thereafter. take “appropriate action” if the MSRDT interfered with a Meanwhile, a Coast Guard boat arrived on the scene at county dive operation. On the other hand, the defendants 10:27 p.m. The local Coast Guard officer, Chief Timothy presented testimony from several local township fire chiefs Monck, would later testify in a deposition that the Guard had who worked with Sheriff Haik, and stated that they had never learned of the incident by a phone call from a private citizen. heard of such an “arrest policy.” The county dive team also responded to the call. Then-
Beck and another man, Mark Sander, plunged into the Sergeant Douglas Cermak, a member of the sheriff’s Manistee River at approximately 10:07 p.m. on June 28, department, was driving a patrol car with his partner Jim 1995. A bystander saw their fall and immediately called 911. Doerning when a call from the dispatcher alerted him that The county dispatcher called personnel from the Manistee Beck was in the river. Cermak proceeded to the sheriff’s Police Department, the Manistee Fire Department, and the office, where he and Doerning gathered their diving Manistee County Sheriff's Department Dive Team (the equipment. Cermak also put on part of his wet suit. The men “county dive team”) to the scene.
left the sheriff’s office at 10:33 p.m. Cermak estimated that The Manistee police arrived in time for one of the officers it took him only a couple of minutes to drive from the to see Beck disappear beneath the river’s surface at 10:17 sheriff’s office to the river and the scene of the accident. p.m. They notified both Manistee Police Chief Robert At the scene, a partially suited-up member of the MSRDT Hornkohl and the county dive team.
– apparently Mosack – approached Cermak and asked if the The city did not page the MSRDT that night. However, county team needed help. Cermak told him that the county Michael Mosack, a member of the MSRDT who was a “had everything under control.” Moreover, Mosack testified Michigan State Police trainee and a certified diver, overheard that he approached Chief Hornkohl and told him that the the original 911 call reporting Beck’s plunge. Mosack MSRDT was ready to attempt a rescue. He testified that immediately gathered his diving equipment, put on the lower Hornkohl consulted with Sheriff Haik by radio, and then half of his wet suit, and drove to the scene. Mosack estimated instructed the divers not to enter the water. However, that he arrived between 10:19 and 10:22 p.m., no more than Hornkohl contradicted this version of events, testifying that five minutes after Beck went under the water. Another he was never aware that MSRDT divers were on the scene. MSRDT diver, Gordon Cole, learned of the situation by Sheriff Haik likewise denied having any such conversation overhearing the dispatcher’s call to the fire department. Cole with Hornkohl. Cole testified that he did not see Chief drove to the scene with his equipment and arrived shortly Hornkohl at the scene. before Mosack did. No. 01-2723 Beck, et al. v. Haik, et al. 7 8 Beck, et al. v. Haik, et al. No. 01-2723
Eugene Beck’s mother, Sharon Beck, eventually arrived at Beck in a bag underwater was in some tension with his the scene. Firefighter LaPoint physically restrained her to deposition, in which he had said that the bag containing Beck prevent her from attempting to rescue Eugene herself. was “zip[ped] up” at the time the county dive team lifted him
into the boat. Although the accident scene was quite close to the sheriff’s office (about a two-minute drive), the county divers did not Gordon Cole, a defense witness, testified under cross- enter the water until 11:05 p.m., nearly one hour after Mr. examination that he saw the county dive personnel lift Beck Beck’s plunge. Cermak and Doering held on to a tow bar out of the water by his ankles. He testified that the use of a attached to the sheriff’s boat. The boat experienced body bag, and the practice of drawing a victim out of the mechanical difficulties with its lights and radio, but it water feet-first, were inconsistent with standard procedures proceeded into the water. The boat slowly canvassed the for a live drowning rescue. river, which was slightly less than 30 feet deep. The water Mosack testified that he did not enter the water on the night temperature in the river, as measured by the divers’ of the accident because he feared being arrested under the equipment, was 68 degrees. Cermak testified that this reading policy that Sheriff Haik had allegedly announced. Cole, on was an average, and that the temperature at the river bottom
the other hand, testified that such a policy would not have was likely somewhat colder. deterred him from attempting a rescue if he had thought he Cermak and Doering located Beck on the floor of the river, had a good chance of rescuing the victim. He testified that he close to the “last seen” point where he had submerged. refrained from entering the water on the night of June 28 Cermak grasped him by the body and surfaced with him simply because the officers on the scene had told him that the approximately 14 minutes after the county divers had entered MSRDT was not needed. the water. The county divers were unable to hoist Beck into Mosack estimated that if he had dived after Beck, he could the sheriff’s boat, and instead transferred him onto the Coast have been in the water by 10:22 p.m., five minutes after Beck Guard boat, with some difficulty, as will be discussed submerged. He estimated that he could then have swum to momentarily. The personnel on the boat began CPR and
Beck’s “last seen” location, brought him to the surface, and other resuscitative measures as they returned Beck to the swum back with him in three to six minutes. Thus he would shore and a waiting ambulance. However, Beck did not have been able to return Beck to the shore within survive.
approximately ten minutes of his original submergence. Chief Monck, the Coast Guard officer who assisted with the The plaintiffs bolstered their case with the expert testimony recovery of Beck, testified in a deposition read to the jury that of Dr. Alan Steinman, a former Coast Guard rear admiral and the county divers placed Beck inside a body bag underwater, the author of numerous articles in the fields of cold-water and zipped up the bag with Beck in it. Cermak testified drowning and resuscitation. Steinman had also studied somewhat differently: he stated that he asked for a porous hundreds of drowning cases in his official capacity at the mesh bag to use as a sling to lift Beck, but was instead given Coast Guard. He opined that if Beck had been recovered as a body bag. As the county and Coast Guard personnel tried
late as 24 minutes after submerging, he probably could have to place Beck partially into the bag to hoist him onto the boat, been resuscitated. (In his deposition, he had testified that the he testified, the bag filled with water and he had to cut it open with a knife. Cermak’s testimony that the divers did not place No. 01-2723 Beck, et al. v. Haik, et al. 9 10 Beck, et al. v. Haik, et al. No. 01-2723 cut-off time after which Beck probably would not have small.” Dr. Dueker criticized as unscientific the Nemiroff survived was between 20 and 30 minutes after submersion.) research on which Dr. Steinman had partially relied, because
it was based simply on case studies. He noted that other peer- Steinman testified that his opinion was based on numerous reviewed research in the field supported much shorter published articles, particularly the work of Dr. Martin survival times in drowning victims. Dueker also testified, Nemiroff, a researcher who had compiled case studies of based on his experience as a diver, that a diver who, like cold-water drowning victims who had been revived after long Mosack or Cole, arrived at an accident scene before fully periods of submersion, and concluded that cold water prompts suiting up, would normally take 10 to 15 minutes to don his special physiological responses that increase survivability. In equipment and enter the water. Beck’s favor were the facts that he was relatively young (age 28) and that his accident occurred in cold water (defined as At the close of their case-in-chief, the plaintiffs called less than 70 degrees Fahrenheit). Steinman testified that Sharon Beck, the deceased’s mother. Mrs. Beck testified to contemporary professional standards, as adopted by the a close relationship with her son, and recounted feeling anger American Heart Association and other national bodies, and frustration at what she perceived as the county and city’s recommend that rescuers should make aggressive efforts to indifference to rescuing him. She testified that she was resuscitate cold-water drowning victims who had been undergoing ongoing counseling for this loss. On cross- submerged for as long as 60 minutes. This “golden hour” was examination, defense counsel questioned Mrs. Beck about her generally viewed as marking the outer limit of survivability. relationship with her son, eliciting testimony that he had an
alcohol problem and that the relationship between Beck and Steinman admitted on cross-examination that the most his father was sometimes difficult. At one point, counsel pronounced increases in survivability in cold-water asked Mrs. Beck if she was in counseling for other reasons drownings tended to occur with victims younger than Beck. besides her son’s death. He then elicited, over the strenuous He also admitted that if Beck had jumped into the water with objection of plaintiffs’ counsel, testimony that Mr. and Mrs. suicidal intent, as some of the evidence suggested, then this
Beck had been accused of child molestation. These would have decreased his chances of survival. Steinman also accusations were apparently abandoned after Mrs. Beck admitted that Dr. Nemiroff’s research had identified only passed a lie detector test. Plaintiffs’ counsel moved for a about 50 cases of very long-term survival in about 1500 Coast mistrial, which was denied. Guard drowning case studies. However, Steinman contended that many of these cases involved periods of submersion In addition to the evidence presented at trial, as discussed much longer than the 24-minute period in which, he believed, above, the plaintiffs attempted to enter several other pieces of Beck probably could have been revived. evidence dealing with the county’s response. These were
rejected by the district court. The County countered Dr. Steinman’s testimony with the expert testimony of Dr. Christopher Dueker, a diver and a First, plaintiffs argued that they were entitled to present specialist in underwater medicine. Dr. Dueker opined that evidence that the county destroyed the audio dispatch tape of even if Beck had been recovered within 15 minutes of the evening’s events despite receiving a Freedom of submerging, it would have been “unexpected” for him to Information Act request for it. The dispatch tapes, the survive, and he would likely have suffered brain damage. By plaintiffs contended, would have confirmed the sequence of 30 minutes, his chances of survival would be “vanishingly events on that night, and would have included transmissions No. 01-2723 Beck, et al. v. Haik, et al. 11 12 Beck, et al. v. Haik, et al. No. 01-2723 between officers that were absent from the written dispatch efforts were less than ideally effective, this was not relevant log. The county regularly maintained tapes for thirty days, to any of the elements of plaintiffs’ case. then demagnetized and reused them unless a request to Third, the plaintiffs attempted to introduce the opinion preserve the tape came in. Near the end of the 30-day period,
testimony of Steven J. Linton, an experienced dive rescue an attorney (not a participant in this case) filed a request with instructor and the author of many textbooks and articles on the Sheriff’s Department for a copy of the tape containing the subject. Linton evaluated the municipal policies for water Beck’s accident. However, the request was not transferred to accidents at the time of Beck’s drowning, and severely the dispatcher’s office in time, and the tape was demagnetized criticized the defendants’ actions. He would have testified on the 30th day. After a separate hearing, the district court that the use of a tow bar was inappropriate for a rescue held that plaintiffs had provided no evidence of deliberate scenario like Beck’s, in which would-be rescuers had a good destruction, and excluded the proffered testimony as “last seen” point. He also criticized the county divers’ irrelevant.
lengthy delay in entering the water, the use of a body bag to Second, plaintiffs proffered a letter that Coast Guard Chief recover Beck, and the decision to send LaPoint’s rescue Monck had written to Cheryl Debano-Griffin, the Manistee ambulance, R5, back from the scene before Beck had been County dispatch director, shortly after the Beck drowning. In recovered. Linton concluded from the county’s and city’s the letter, Monck expressed dismay that the county had failed activities that “the officials intended not to rescue Beck, but to notify the Coast Guard of Beck’s plunge. He stated that simply recover his body.” Finally, Linton would have the Guard could have responded in two minutes, but due to testified that if Mosack and Cole had been permitted to enter the lack of notification, the Guard arrived at the accident 25 the water and dive at the “last seen” point, they would likely minutes later, after a call from a private citizen. Monck have had little difficulty finding Beck. Linton opined on added: “In many instances, the difference between the rescue causation in his deposition, indicating that if Mosack and of a cold water near drowning victim and a body recovery is Cole had been allowed to dive, Beck would have survived. the timely notification of available rescue agencies.” The
As with the Monck letter, the district court excluded district court had previously quashed plaintiffs’ attempt to Linton’s proffered testimony as irrelevant. It reasoned that subpoena Monck, on the ground that he was a military “the issue [of whether] this was a perfect rescue operation” serviceman. However, Monck supported the letter with an was not raised by the trial. Moreover, the court concluded affidavit attesting to its accuracy. The letter had another that “Mr. Linton as this case is focused cannot help the jury notable feature: a handwritten annotation that read, “cut tape.” evaluate th[e] question of whether or not this policy or The plaintiffs argued that this annotation must have been practice in fact caused death.” made by the county dispatcher who received the letter, and that it was relevant to plaintiffs’ claim of spoliation.
At the close of all evidence, the district court instructed the jury on the three elements of the plaintiffs’ case as follows: The district court first held this letter inadmissible as hearsay. Then, when Monck filed his affidavit, the court First, that the plaintiffs’ decedent, Eugene Beck, was reconsidered its ruling and held the letter inadmissible due to arbitrarily deprived of his right to private rescue pursuant a lack of relevancy. It reasoned that the letter dealt with to the [defendants’] custom, policy, ordinance, matters collateral to Beck’s drowning. Moreover, it reasoned, regulation, or decision preventing private rescue efforts. even if the letter tended to show that the defendants’ rescue No. 01-2723 Beck, et al. v. Haik, et al. 13 14 Beck, et al. v. Haik, et al. No. 01-2723
Second, that the defendant[s] . . . did not provide a (6th Cir. 1989). The Federal Rules of Civil Procedure use meaningful alternative to private rescue efforts. similar language. See Fed. R. Civ. P. 61 (“No error in the
admission or exclusion of evidence . . . is ground for . . . Third, that the defendant[s’] actions were a proximate disturbing a judgment or order, unless refusal to take such cause of the damages sustained by the plaintiffs’
action appears to the court inconsistent with substantial decedent, Eugene Beck. justice.”). Another provision in the same vein appears in the federal judicial code, and applies by its terms to all
The plaintiffs objected to use of the word “preventing” in the proceedings in the courts of appeals: “On the hearing of any first element of this instruction. They noted that this court’s appeal . . . , the court shall give judgment . . . without regard earlier opinion had used the term “hinder” to describe the to errors . . . which do not affect the substantial rights of the kind of government interference with private rescue that a parties.” 28 U.S.C. § 2111. In McDonough Power Equip., plaintiff was required to show. The district court overruled Inc. v. Greenwood , 464 U.S. 548 (1984), the Supreme Court this objection. Plaintiffs’ counsel argued in his closing that held that the “substantial rights” language of § 2111 “prevent” did not necessarily mean physical restraint, but “incorporates the same principle as that found in [Civil] Rule merely to “hinder” or “deter” a rescuer. 61,” id. at 554, which speaks of “substantial justice.” Fed. R. Civ. P. 61.
The jury received the case on November 21, 2001. At one point during deliberations, the jurors sent a note to the court, The “substantial right” standard may elude exact definition, asking the court to define the term “arbitrary” as used in the see Charles Wright, Arthur Miller, & Mary Kay Kane, instructions. At the urging of the plaintiffs, the district court Federal Practice & Procedure: Civil 2d § 2883 (1995 & Supp. declined to supply a definition, telling the jury that the term 2004), but our court has explained it in the following terms, had its ordinary and common meaning in the instructions. in a case in which we held that reversible error had occurred: After four hours of deliberation, the jury returned a general Th[e] inquiry involves an assessment of the likelihood verdict for the defendants. that the error affected the outcome of the case. As the Supreme Court has described the test: “[I]f one cannot
The plaintiffs now appeal, arguing that the district court say, with fair assurance, . . . that the judgment was not committed several evidentiary errors that collectively require substantially swayed by the error, it is impossible to reversal. conclude that substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct.
II
1239, 1248, 90 L.Ed. 1557 (1946). Application of this test is highly sensitive to the unique context of the
This case turns in part on the application of the “harmless particular case, including the one-sided or closely error” standard that governs mistakes in the admission or balanced nature of the evidence bearing upon the issue exclusion of evidence at trial. This standard is embodied in which the error arguably affected, and the centrality of several provisions. The Federal Rules of Evidence state that that issue to the ultimate decision. erroneous rulings are grounds for reversal only when “a substantial right of [a] party is affected.” Fed. R. Evid. 103(a); Rye v. Black & Decker Mfg. Co. , 889 F.2d 100, 103 No. 01-2723 Beck, et al. v. Haik, et al. 15 16 Beck, et al. v. Haik, et al. No. 01-2723 Schrand v. Federal Pacific Elec. Co. , 851 F.2d 152, 157 (6th Schrand is a published opinion adopting the Kotteakos “fair Cir. 1988) (quoting Jordan v. Medley , 711 F.3d 211, 218-19 assurance” standard of harmless evidentiary error in a civil (D.C. Cir. 1983)) (some citations omitted). case. Schrand , 851 F.2d at 157; Taylor , 193 F.3d at 235
(classifying the Sixth Circuit as following Kotteakos in civil That is the traditional formulation of the harmless error cases, citing Schrand ; embracing the same rule). To the standard, deriving from Kotteakos v. United States . It calls extent the language of our later panel decisions is inconsistent for reversal when the appellate court lacks a “fair assurance” with this holding, we follow Schrand . “[A] panel of this that the outcome of a trial was not affected by evidentiary [c]ourt cannot overrule the decision of another panel. The error. We have applied this standard in civil cases, Schrand , prior decision remains controlling authority unless an ibid. , habeas corpus proceedings, Caldwell v. Bell , 288 F.3d inconsistent decision of the United States Supreme Court 838, 842 (6th Cir. 2002), and criminal cases, United States v. requires modification of the decision or this Court sitting en Haywood , 280 F.3d 715, 724 (6th Cir. 2002). It is also banc overrules the prior decision.” Darrah v. City of Oak followed by most other circuits in both civil and criminal
Park, 255 F.3d 301, 309 (6th Cir. 2001); accord 6th Cir. R. cases alike. E.g. , Bacou Dalloz USA, Inc. v. Cont’l Polymers, 206(c). Inc. , 344 F.3d 22, 29-30 (1st Cir. 2003); Taylor v. Va. Union Univ. , 193 F.3d 219, 235 (4th Cir. 1999) (en banc); Williams Accordingly, we begin by asking whether there was v. U.S. Elevator Corp. , 920 F.2d 1019, 1022-23 (D.C. Cir. evidentiary error in the trial. If so, then we “examin[e] the 1990); Aetna Cas. & Sur. Co. v. Gosdin , 803 F.2d 1153, 1159 proceedings in their entirety,” Kotteakos , 328 U.S. at 762, in (11th Cir. 1986). the light of the proofs at trial, to determine whether the errors
affected substantial rights. If we do not have a “fair However, after Schrand , several of our opinions in civil assurance” that the trial’s outcome was not altered by error, we must reverse. Schrand , 851 F.2d at 157. [3] cases stated the following standard: “Even if a mistake has been made regarding the admission or exclusion of evidence, a new trial will not be granted unless the evidence would have caused a different outcome at trial .” Morales v. Am. Honda harmless error when it “worke d no substantial prejudice”); Polk , 876 F.2d Motor Co., Inc. , 151 F.3d 500, 514 (6th Cir. 1998) (emphasis
at 532 (declining to reverse when erroneous evide ntiary decision “could added); Nida v. Plant Prot. Ass’n Nat. , 7 F.3d 522, 527 (6th not have resulted in a d ifferent resu lt at trial”). Cir. 1993); Polk v. Yellow Freight Sys., Inc. , 876 F.2d 527, 532 (6th Cir. 1989). This version would seem to require an [3] W hile Schrand held that the Kotteak os standard applies to civil and
appellant to do more than merely deprive the appellate court criminal cases alike, we do not interpret Schrand to say that the prejudice of a “fair assurance” that the error was not outcome- inquiry must ignore differences between the two types of case. In determinative, as under Kotteakos . Instead, he must show by particular, different burdens of persuasion apply in civil and criminal a preponderance of the evidence that the error was outcome- trials. In a criminal case, where proof must be beyond a reasonable d oubt, determinative. [2] a reviewing court might find itself unable to say, with “fair assura nce,”
Kotteakos , 328 U .S. at 765, that a given evidentiary error, or set of errors, was harmless. Reve rsal would then b e required . Yet in an otherwise similar civil trial, the same error or errors might not be enough to shake the court’s fair assurance that the jury still would have found against the [2] Other formulations tha t have appe ared are more consisten t with appellant in the absence of the error, in light of the lower, preponderance
Schrand . See Ho rn by Parks v. M adiso n Coun ty Fiscal Ct. , 22 F.3d 653, of the evid ence, standard of proo f. Cf. Schrand , 851 F.2d at 157 662 (6th Cir. 1994) (trial court’s erroneous exclusion of evidence was (instructing courts to pay attention to “the one-sided or closely balanced No. 01-2723 Beck, et al. v. Haik, et al. 17 18 Beck, et al. v. Haik, et al. No. 01-2723
III We agree with the plaintiffs that some of Linton’s proposed testimony was relevant to the “meaningful alternative” issue, A district court’s decisions to admit or exclude evidence are and should have been admitted. To be sure, the district court reviewed for abuse of discretion. United States v. Cline , 362 was right to observe that the question of whether or not “this F.3d 343, 348 (6th Cir. 2004). An abuse of discretion occurs
was a perfect rescue operation” was irrelevant to the case. when the district court “relies on clearly erroneous findings of Our previous opinion in this matter drew upon the analysis in fact, . . . improperly applies the law, . . . or . . . employs an the Seventh Circuit’s opinion in Ross v. United States , 910 erroneous legal standard.” Ibid. F.2d 1422 (7th Cir. 1990), in describing the constitutional due
process claim raised by the Becks’ complaint. We adopted Claims of error in jury instructions require the instructions Ross ’s formulation: a municipality cannot “arbitrarily cu[t] to be reviewed as a whole, in order to determine whether they off private sources of rescue without providing a meaningful adequately informed the jury of the relevant considerations alternative.” Beck , 2000 WL 1597942 at *4 (quoting Ross , and provided a basis in law for aiding the jury in reaching its 910 F.2d at 1431). The concept of “meaningfulness” at issue decision. O-So Detroit, Inc. v. Home Ins. Co. , 973 F.2d 498, here must be understood with reference to the underlying 502 (6th Cir. 1992); Blackwell v. Sun Elec. Corp. , 696 F.2d constitutional doctrine of due process, which prohibits only 1176, 1181 (6th Cir. 1983). “egregious or arbitrary government conduct,” City of Cuyahoga Falls v. Buckeye Cmty. Hope Found. , 538 U.S.
A
188, 198 (2003), not conduct that is merely ill-reasoned or ill- advised. Thus, a broad range of possible dive rescue
Plaintiffs first contend that the district court erred by techniques might qualify as “meaningful,” even if they were excluding the testimony of Mr. Linton. They argue that his not the most effectively adapted for the task. evaluation of the county’s dive efforts was relevant to the question of whether the defendants provided a “meaningful
In this case, however, Linton offered testimony that several alternative” to private rescue. They also argue that Linton’s aspects of the county’s response to the Beck drowning experience qualified him to testify about the degree of suggested the county was not, in fact, engaged in a rescue difficulty the MSRDT divers would likely have faced in operation at all, but only in a body recovery operation. This recovering Beck, had they dived after him. When reviewing would obviously fall short of being a meaningful alternative proposed expert testimony, the district court must determine to rescue. There was evidence that the county had whether the evidence rests upon a reliable foundation and is specifically decided not to hold itself out as providing water relevant. Fed. R. Evid. 702; Daubert v. Merrell Dow rescue services, because it believed that it could not provide Pharms., Inc. , 509 U.S. 579, 597 (1993). A district court a timely response across the length of Manistee County. abuses its discretion if it bases “its ruling on an erroneous Indeed, when Beck’s fall occurred, the county divers were view of the law or a clearly erroneous assessment of the unable to enter the water until 58 minutes after Beck’s plunge, evidence.” Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, even though the accident site was only two or three minutes 405 (1990). from the sheriff’s office. Moreover, some trial testimony suggested that when the county divers did recover Beck, they placed him in a body bag and dragged him out by his feet. Other testimony indicated that the city’s rescue vehicle, R5,
nature of the evidence” in deciding whether error was harmless in a given had been on the scene but had been sent home by Chief case). No. 01-2723 Beck, et al. v. Haik, et al. 19 20 Beck, et al. v. Haik, et al. No. 01-2723 Hornkohl before Beck’s body was recovered. Linton would dispatch director, in which he complained that the municipal have testified that these facts were inconsistent with an authorities never notified the Coast Guard of the Beck attempt at live rescue. He would also have explained the drowning. We agree that this letter should not have been “golden hour” protocol recognized in the field of water excluded as irrelevant. The letter is relevant for reasons rescue: one hour of submersion is the outer limit of survival similar to those that required admission of part of Mr. for a drowning victim. Furthermore, Linton testified in his Linton’s testimony, discussed above. Monck stated that the deposition that water rescue operations are rarely run out of county had not notified the Coast Guard of Beck’s accident, sheriff’s departments, as the Manistee County dive team was; even though the Coast Guard boat was on patrol and could rather, such operations are more commonly run out of local have arrived at the scene in about two minutes. If believed by fire departments, which can respond faster. the jury, this evidence would clearly support one of the
plaintiffs’ main theories of the case: that the county was not Such testimony meets the general relevance requirement of interested in providing live rescue at all, only body recovery. Fed. R. Evid. 401 and the expert opinion requirements of Fed. Thus, the letter is relevant to the “no meaningful alternative” R. Evid. 702. In light of Linton’s expertise, his testimony element of the plaintiffs’ case. could have been helpful to the jury in deciding whether what occurred was a rescue operation or a recovery operation, and The defendants argue that even if the letter is relevant, it thus whether it was a meaningful alternative to private rescue. still should have been excluded as hearsay. The district court See Fed. R. Evid. 702 (permitting opinion testimony based on did originally exclude the letter as hearsay, but later relevant “scientific, technical, or other specialized reconsidered this part of its ruling sua sponte and reversed it. knowledge” if, inter alia , the witness is appropriately The parties have not included in the record sufficient “qualified as an expert by knowledge, skill, experience, documents or transcripts of the proceedings to allow us to training, or education”). As a water rescue expert, Linton also revisit the district court’s thinking on the hearsay issue, which could have provided potentially helpful testimony on whether
appears to involve a number of complex considerations. As Mosack and Cole would have been likely to encounter best we can gather from this vantage point, the plaintiffs difficulty in recovering Beck if they had entered the water on attempted to subpoena Chief Monck to testify about the that night.
matters addressed in his letter to the county dispatcher. The We agree with the district court, however, that Linton was district court quashed the subpoena. It is unclear whether it not sufficiently qualified to opine on whether Beck’s life did so because the Coast Guard had refused to comply with would have been saved if Mosack and Cole had entered the the subpoena (perhaps pursuant to its authority as a federal water and searched for him. That was properly a medical agency to “prescribe regulations for . . . the conduct of its judgment, and Linton (unlike plaintiffs’ other proffered expert employees [and] . . . the custody, use, and preservation of its witness, Dr. Steinman) lacked the medical training to qualify records, papers, and property,” under the so-called him to render such a judgment. “housekeeping statute,” 5 U.S.C. § 301), or for another
reason. Monck later offered an affidavit that authenticated his
B
letter. The district court then revisited its hearsay ruling, and concluded that the Coast Guard’s response rendered Monck
Plaintiffs’ second issue concerns the district court’s an “unavailable” witness within the meaning of Fed. R. Evid. decision to exclude, as irrelevant, Monck’s letter to the county 804, and apparently concluded that Monck’s testimony also No. 01-2723 Beck, et al. v. Haik, et al. 21 22 Beck, et al. v. Haik, et al. No. 01-2723 satisfied an appropriate hearsay exception – perhaps the standard of care, training, equipment, etc. As I read the “catch-all” exception of Fed. R. Evid. 807. [4]
statute the[re] is no duty to provide a rescue team!” The note closed by stating that “the liability would significantly
In the end, the district court explicitly rested its ruling on increase” if the county created a rescue team. lack of relevance, not on hearsay. The parties have not provided a sufficient appellate record for us to decide whether On March 25, 1993, after a drowning accident in the the hearsay issue provides an alternative basis for affirming Manistee River, Page sent a typed letter to Kaminski the district court’s ruling. We accordingly express no opinion “reinforc[ing] our risk control opinion that Manistee County on this question. The district court may choose to revisit the should not expand its present services in the Sheriff’s point on remand. Department in the area of water recovery.” Page referred in
this letter to a “position taken and expressed . . . by Sheriff C Haik” that the county should decline to provide official rescue services, and Page endorsed this position. Echoing his The plaintiffs also challenge the district court’s decision to previous note, Page added: “Any agreement to provide exclude two letters written to Tom Kaminski, the Manistee underwater rescue service would generate considerable County Administrator, by William Page, a risk consultant expenditures in staffing, trainin[g], and equipment while at with the Michigan Municipal Management Authority (a the same time greatly increasing exposure to liability.” public-entity liability and property insurer). On Februrary 8, 1993, Page wrote a note on the cover page of a fax to
Plaintiffs proffered these two letters as admissions of an Kaminski, stating that “[l]egislation indicates sheriff / police opposing party, admissible under the hearsay exception of chiefs have duty to establish “recovery” capacity . . . but may Fed. R. Evid. 801(d)(2)(D). They offered to redact the letters also call upon other agencies to aid in recovery of a body.” to exclude the closing references to liability, in conformity Page added: “Rescue operations signify an even higher with Fed. R. Evid. 411. The district court held the letters
inadmissible on the grounds that they were irrelevant and excessively prejudicial. It reasoned that the letters could not be redacted to remove the references to liability without [4] It is an interesting question whether such a refusal by the Coast
rendering them misleadingly incomplete. On appeal, the Guard (if that is what happe ned) wo uld, in fact, render a witness defendants argue that the district court’s ruling was correct, “unavailable” for purposes of Fed. R. Evid. 804 and/or 807, thereby and renew their argument, presented below, that the letters making his earlier hearsa y stateme nts potentially admissible. The were also subject to exclusion as hearsay. agency’s say-so does not conclude the matter of whether the witness is unavailable. Rather, our court has held that the “housekeeping” statute for military and other federal agenc ies, 5 U.S.C. § 301, does not empower
We are compelled to conclude that the letters should have agencies “to prescribe regulatio ns that direct a party to deliberately been admitted. They were relevant. They dealt with whether disobey a court order, subpoena, or other judicial mechanism requiring the county had decided to forego live rescue attempts in water the production of information.” In re Bankers Trust Co. , 61 F.3d 465, accidents. If the jury believed it had done so, this would be 470 (6th C ir. 199 5); accord Exxon Shipping Co. v. United States Dep't of Interior, 34 F.3d 77 4, 777 (9th Cir.1994), although we have also held that highly relevant, if not decisive, as to the question of whether an agency employee cannot be held in contempt for relying on such a
the defendants failed to provide a meaningful alternative to regulation, Appeal of S.E.C. , 226 F.2d 501 , 516 (6th C ir. 195 5). private rescue. As to prejudice, the thrust of the letters was W e express no opinion on this question, which is not properly before to advise the county not to adopt water rescue, and to report us. No. 01-2723 Beck, et al. v. Haik, et al. 23 24 Beck, et al. v. Haik, et al. No. 01-2723 that Sheriff Haik had taken such a position. The letters could 605-06 (6th Cir. 1995) (assuming arguendo that an employee easily have been redacted by removing the sentences referring of a professional services company hired by a union fund was to liability without distortion of their meaning. the fund’s “agent” under Rule 801(d)(2)(D) with respect to
his assertions dealing with his company’s work for the fund). Defendants’ argument that the letters were improper hearsay also requires consideration. Fed. R. Evid. 801(d)(2) Defendants argue next that the letters would have been provides that statements are not hearsay if they are “offered merely cumulative. They point out that the County’s former against a party and [are made] . . . by the party’s agent or deputy sheriff, Kowalkowski, admitted under cross- servant concerning a matter within the scope of the agency or examination by plaintiffs’ counsel that, prior to Beck’s employment, made during the existence of the relationship.” drowning, the county had decided not to hold itself out as The chief issue is the nature of Page’s relationship with the offering rescue services. However, the letters would have county. Defendants state that Page was simply a consultant, provided additional perspective on the county’s actions. The providing risk assessment services as part of the county’s thrust of Kowalkowski’s testimony was that the county chose agreement with the Michigan Municipal Management not to offer rescue services “[i]n name.” The letters went Authority. Assuming this is so, we hold that Page’s further, suggesting that the county did not merely decline to statements in the letters still count as “admissions” under offer rescue services by name, but that it affirmatively Rule 801(d)(2)(D). The statements dealt directly with the decided, on financial grounds, to offer only body recovery subject matter of the Management Authority’s contract with services. Thus, while the defendants are correct that the county, and were expressed during the course of that Kowalkowski’s testimony tended to mitigate the effect of relationship. Though there is little precedent on the matter, erroneously excluding the letters, it did not render the letters courts confronting similar factual situations have tended to merely cumulative. hold contractors and advisors to fall within the “agency” relationship contemplated by Rule 801(d)(2)(D). [5] Our court D reached a similar conclusion in a criminal case, United States
Plaintiffs presented testimony at trial from Cheryl Debano- v. Branham , 97 F.3d 835, 851 (6th Cir. 1996), in which we Griffin, the Manistee County dispatch director. At one point, held that a paid civilian informant was the government’s plaintiffs’ counsel made an offer of proof, and asked Debano- “agent” under Rule 801(d)(2)(D) with respect to statements Griffin questions aimed at developing a foundation for the he made in order to establish a relationship with the argument that the county had deliberately destroyed the defendant. See also United States v. Wiedyk , 71 F.3d 602, dispatcher’s audio tape of the events of June 28, 1995. Debano-Griffin confirmed that the tape was demagnetized by the dispatcher’s office, and thus was unavailable. (Plaintiffs [5] did introduce into evidence the printed dispatch log. See EEOC v. Watergate at Landmark Condo. , 24 F.3d 635, 640 (4th
Cir. 1994) (holding that statements of condominium residents on advisory However, this was less complete, and the time stamps on the committees were admissible under Rule 801(d)(2)(D) in a former
printed log were not always contemporaneous with events.) employee’s discrimination action against the condominium association); She testified that it was the routine practice of the office to United States ex rel. Remtech, Inc. v. Nat’l Union Fire Ins. Co. of maintain tapes for thirty days, and then, if no one requested Pittsburgh, Pa. , Nos. 99-3 503 8, 99 -352 97, 2 000 W L 11 711 39, *3 n.4 preservation of the tape or a copy, to demagnetize and reuse (9th Cir. 2000) (unpublished opinion) (holding a consultant’s statement about his desire to help his client avoid a co ntract to be ad missible against them. She further testified that the Coast Guard verbally the client under Rule 801(d)(2)(D )). No. 01-2723 Beck, et al. v. Haik, et al. 25 26 Beck, et al. v. Haik, et al. No. 01-2723 requested the tape from her office during that 30-day period, that date. Yet it was not. The fact that Monck’s letter to the and that she reviewed the tape with Chief Monck and other county dispatcher was marked with the written annotation, Coast Guard personnel. In addition, an attorney (not a “cut tape,” could also be viewed as supporting the plaintiffs’ participant in the present litigation) filed a written Freedom of arguments. Information Act requesting the tape from the night of Beck’s
Spoliation is the intentional destruction of evidence that is death. This FOIA request was filed one or two days before presumed to be unfavorable to the party responsible for the the expiration of the 30-day period, but it was filed with the destruction. Ibid . The rules that apply to the spoiling of Manistee County Sheriff’s Department, rather than the evidence and the range of appropriate sanctions are defined dispatcher’s office. Debano-Griffin testified that her office by state law; in this case, the law of Michigan. Nationwide did not receive the written FOIA request until shortly after the Mut. Fire Ins. Co. v. Ford Motor Co. , 174 F.3d 801, 804 (6th expiration of 30 days, and that by then the tape had been Cir. 1999). Michigan treats evidence of spoliation as relevant demagnetized. Plaintiffs argued that the Coast Guard’s verbal
to trial proceedings in a number of respects. “A trial court has request, and the sheriff’s failure to convey the written request the authority . . . to sanction a party for failing to preserve to the dispatch office, raised an inference of spoliation of evidence that it knows or should know is relevant before evidence by the County. The district court did not agree. It litigation is commenced.” Bloemendaal v. Town & Country reasoned that the written request was filed only one or two Sports Ctr. Inc. , 659 N.W.2d 684, 686 (Mich. Ct. App. 2003). days before the expiration of the 30-day deadline, and was A party may also be entitled to special instructions if he can filed with the sheriff’s office rather than the county dispatch raise an issue of fact as to whether a party has failed to office. Thus, it concluded, the logical inference was that an preserve relevant evidence. See Brenner v. Kolk , 573 N.W.2d innocent bureaucratic error had prevented the request from
65 (Mich. Ct. App. 1998); Mich. Std. Jury Instruction 2d being received in time to prevent the destruction of the tape. 6.01. In the posture in which this appeal reaches us, we need We review the district court’s decision to exclude evidence not consider whether any of these measures could be of spoliation for abuse of discretion. United States v. appropriate in this case. It is enough to say that there was Copeland , 321 F.3d 582, 597 (6th Cir. 2003). The district sufficient evidence to entitle the plaintiffs to present their court’s reasoning here would have been within its discretion spoliation evidence to the jury. if the failure to respond to the written request were the only E evidence of a possible spoliation. However, it was not. Debano-Griffin also testified that the dispatch office received
Plaintiffs argue next that the court committed reversible a direct verbal request from the Coast Guard for a copy of the error when it allowed the defendants to elicit testimony that tape. While the plaintiffs, during their brief offer of proof, Eugene Beck had a criminal record and that his parents had did not establish the date of the receipt of this verbal request, been accused of child molestation. They argue that this it must have preceded the written FOIA request, because it questioning was irrelevant and highly prejudicial. Defendants occurred in time for the tape to be produced intact to the argue that it was proper cross-examination, because plaintiffs Coast Guard. Debano-Griffin also testified that receipt of a had opened the door to it. verbal request was enough to justify preserving a tape. That being so, it would appear that the tape should have been
Sharon Beck, Eugene’s mother, testified on direct preserved after the regular 30-day deadline expired, regardless examination that she had sought counseling for her grief and of whether the written FOIA request had been received by No. 01-2723 Beck, et al. v. Haik, et al. 27 28 Beck, et al. v. Haik, et al. No. 01-2723 anger after the death of her son. The plaintiffs had previously detector test. It was unclear whether any charges were ever secured a ruling from the district court that forbade filed. defendants from introducing any evidence of Eugene’s This questioning was both irrelevant and unduly criminal record, unless Mrs. Beck’s testimony opened the
prejudicial, and should have been disallowed. It certainly did door to it as rebuttal. In cross-examining Mrs. Beck about her not satisfy the requirements of Fed. R. Evid. 608, which relationship with her son, defense counsel asked Mrs. Beck if permits the use of past crimes for impeachment, but only Eugene was “difficult” and “got into trouble.” She replied where, among other requirements, the evidence indicates “that that if so, “he didn’t go out and cause it” and added that “he a witness . . . has been convicted of a crime.” We have wasn’t convicted on none of them.” Defense counsel then cautioned that introducing unrelated evidence of sexual asked Mrs. Beck directly whether her son had gone to prison, crimes or deviancy risks “cater[ing] to the passions of the and she admitted he had. Plaintiffs’ counsel’s jury” and “prejudic[ing] [a party’s] chance for a fair trial.” contemporaneous objection was overruled.
United States v. McFadyen-Snider , 552 F.2d 1178, 1182 (6th We do not believe this was error. The district court acted Cir. 1977). Here, plaintiffs’ choice to present Mrs. Beck’s within its discretion by implicitly ruling that Mrs. Beck’s testimony about her love of her son and her need for grief remark that Eugene “wasn’t convicted” opened the door to counseling could fairly be seen as opening the door to counsel’s question. “When a party opens up a subject . . . the questions about the stormy aspects of her relationship with party cannot complain on appeal if the opposing party her family. But counsel’s question about apparently introduces evidence on the same subject.” United States v. uncharged, and certainly unproven, accusations of child Bender , 265 F.3d 464, 471 (6th Cir. 2001) (quoting United molestation by others against Mrs. Beck simply was not States v. Ramos, 861 F.2d 461, 468-69 (6th Cir.1988)) relevant to that subject. The record does not even indicate (holding that defense counsel was permitted to cross-examine that defense counsel had any reason to believe the charges defendant about her prior drug conviction, notwithstanding were meritorious. Therefore, Mrs. Beck’s request for district court’s earlier order excluding such testimony, when clarification of counsel’s previous question about “upsetting defendant testified on direct examination that she had never events” requiring counseling could not have “opened the sold drugs). door” to any follow-up question about the accusations of
molestation. However, we cannot say the same of the other line of questioning challenged by plaintiffs. In the course of The district court’s denial of a motion for mistrial is questioning Mrs. Beck about her need for counseling, defense reviewed for an abuse of discretion. United States v. Green , counsel asked whether she had “other upsetting events” in her 305 F.3d 422, 428 (6th Cir. 2002). In appeals of civil cases, life besides Eugene’s death. Mrs. Beck replied: “Like what?” grants of mistrial on the basis of a single episode of improper Defense counsel then asked: “Well, on several occasions you questioning or argument have been rare. See, e.g. , Vineyard and your family were accused of child molestation?” v. Murray County, Ga. , 990 F.2d 1207 (11th Cir. 1993) Plaintiffs’ counsel objected strenuously, but was overruled. (affirming the district court’s decision to deny motion for Plaintiffs’ counsel then moved for a mistrial, which was mistrial in excessive force case under § 1983 when plaintiff’s denied. It emerged that the accusation had originated with the counsel urged jury in closing argument to “send a message” adoptive parents of Mrs. Beck’s granddaughters. An in light of recent Rodney King riots; district court gave investigation was dropped after Mrs. Beck passed a lie curative instruction). One court has held that, where an No. 01-2723 Beck, et al. v. Haik, et al. 29 30 Beck, et al. v. Haik, et al. No. 01-2723 appellant challenges a denial of mistrial on the basis of Ross , 910 F.2d at 1431 (holding that plaintiff stated a evidence that the trial court held admissible, the appellant constitutional claim when he alleged that the county “had a faces an “unusually heavy appellate burden” of demonstrating policy of arbitrarily cutting off private sources of rescue that the denial of mistrial was an abuse of discretion, on top without providing a meaningful alternative”). It is not of demonstrating that the admission of the evidence was an reversible error when a court refuses to use the exact language abuse of discretion. Tamko Roofing Prod., Inc. v. Ideal counsel requests in a jury instruction. Blackwell , 696 F.2d at Roofing Co., Ltd. , 282 F.3d 23, 39 (1st Cir. 2002). 1183; Thompson v. Underwood , 407 F.2d 994, 997 (6th Cir.
1969). There is, in any event, great semantic overlap among For reasons we discuss in Part IV, infra at pp. 30-32, we the terms “prevent,” “hinder,” and “deter.” Compare The need not consider whether the improper questioning of Mrs. American Heritage Dictionary of the English Language 1391 Beck was sufficiently prejudicial by itself to merit a mistrial. (4th ed. 2000) (noting that “prevent” and related verbs “mean It is enough that the error was significant and, in conjunction to stop or hinder . . ., especially by advance planning or with the other evidentiary errors we have identified, deprived
action”) with id. at 494 (defining “deter” as “[t]o prevent or the Becks of a fair trial. discourage from acting”) and id. at 830 (noting that “hinder” means “to hold back and often implies stopping or
F
prevention”). The instructions were proper. The plaintiffs offer one other argument meriting discussion. The plaintiffs have offered other assignments of error, It concerns the instructions given as to the first element of which we have considered. Because we find them to be their case. The district court instructed the jury that the clearly without merit, we see no need to discuss these plaintiffs had to show that the defendants imposed a policy additional arguments. “preventing” private rescue efforts. The plaintiffs argue that this was an inappropriate gloss on the language of this court’s IV previous opinion, thereby improperly increasing the plaintiffs’ burden. The plaintiffs urge that the instruction The last issue is whether the errors in the trial require should have stated that defendants’ policies must “hinder” or reversal. Examining the proceedings in their entirety, we “deter” private rescue. They note accurately that this court believe that the substantive issues were significantly used these words in some passages of its earlier opinion. contested. The Becks argued forcefully that the County and
City arbitrarily prevented private rescue as a matter of policy. We conclude that the district court’s instructions adequately They presented testimony from MSRDT members Hornkohl informed the jury about the law and the relevant and Krause that they had been threatened with arrest were considerations. As defendants point out, the district court’s they to enter the water at an accident scene. Several other instructions were also grounded in our prior opinion, which local witnesses testified that they had seen or heard of a used the word “prevent” to describe the elements of the memo from the sheriff declaring water accidents to be crime plaintiff’s claim: “ Ross holds that official action preventing scenes, and some testified that they had heard of an arrest rescue attempts by a volunteer civilian diver can be arbitrary policy connected with that memo. The individual defendants, in a constitutional sense if a state-sponsored alternative is not
in turn, squarely denied adopting such a policy or threatening available when it counts – and we are constrained to agree.” the MSRDT members. The defendants presented testimony Beck , 2000 WL 1597942 at *4 (emphasis added); see also from the local fire chiefs that tended to support their position. No. 01-2723 Beck, et al. v. Haik, et al. 31 32 Beck, et al. v. Haik, et al. No. 01-2723
Likewise, the plaintiffs offered pertinent evidence that, molestation. In our view, errors (2) and (4) involved despite some of the trappings of rescue, the county really affirmative evidence with a significant potential to persuade offered only body recovery services, and thus offered no the jury, and error (5) raised a significant possibility of meaningful alternative to private rescue. Cole, a trained improper prejudice. diver, and Dr. Steinman, plaintiffs’ expert witness, testified
Should these effects be weighed together? Our court has that several aspects of the county dive team’s response, such adopted the doctrine of “cumulative error” in criminal cases: as the use of the body bag, and failure to enter the water for we consider the “combined effect” of multiple trial errors to 58 minutes, suggested that they were not serious about rescue. determine whether they are unfairly prejudicial. United States But this aspect of the plaintiffs’ case would have been v. Parker , 997 F.2d 219, 222 (6th Cir. 1993). We have not bolstered significantly if the testimony of Linton, the dive yet had occasion to decide whether the same rule applies in expert, and the letter from Coast Guard officer Monck had civil cases. However, most of our sister circuits follow the been admitted.
cumulative-error doctrine in both civil and criminal cases. Causation was perhaps the weakest element of plaintiffs’ See, e.g. , Frymire-Brinati v. KPMG Peat Marwick , 2 F.3d case. However, they presented Dr. Steinman’s expert 183, 188 (7th Cir. 1993); Malek v. Fed. Ins. Co. , 994 F.2d 49, testimony that Beck probably could have survived if rescued 55 (2d Cir. 1993); Hendler v. United States , 952 F.2d 1364, within 20 to 30 minutes of submerging. If the jury believed 1383 (Fed. Cir. 1991); United States v. Rivera , 900 F.2d the testimony of Mosack, it easily could have concluded that 1462, 1469 (10th Cir. 1990); but see SEC v. Infinity Group the MSRDT divers could have recovered Beck during this Co. , 212 F.3d 180, 196 (3d Cir. 2000). time. Defendants’ medical expert, Dr. Dueker, testified that We agree with the majority of courts that the cumulative- it was unlikely that Beck would have survived even 10 to 15 error doctrine should extend to civil cases. The “substantial minutes’ submersion, thus casting doubt on plaintiffs’ claims right” standard that governs harmless error analysis is defined of causation. He also offered plausible criticisms of the
in terms of whether errors may have influenced the jury’s research that underpinned Dr. Steinman’s opinion. We think verdict. Schrand , 851 F.2d at 157; see generally Part II, it is relevant, though, that during its deliberations, the jury supra at pp. 13-16. Since a jury reaches its verdict in light of asked a question about the meaning of the term “arbitrarily” the evidence as a whole, it makes no sense to try to analyze in the jury instructions. This was not part of the definition of errors in artificial isolation, when deciding whether they were the causation element of plaintiffs’ case. The question harmless. suggests that the jury may have thought plaintiffs had presented enough evidence of causation to justify careful
Applying this standard, we conclude that we lack a “fair attention to whether they had proved the other elements of assurance” that the verdict below was not substantially their case. swayed by error. Schrand , ibid. ; Kotteakos , 328 U.S. at 765. The trial was contested enough that fairness requires a new
We have identified five errors that inured to the detriment trial in which the Becks may present the range of relevant of the Becks: (1) the exclusion of Linton’s expert testimony; evidence denied to them below. (2) the exclusion of the Coast Guard letter; (3) the exclusion of the letters from the county risk consultant, Mr. Page; (4) the exclusion of the spoliation evidence; and (5) the improper questioning of Mrs. Beck on accusations of child No. 01-2723 Beck, et al. v. Haik, et al. 33
V
For the foregoing reasons, the judgment is REVERSED and the case is REMANDED for a new trial.
