*1 interpreta- would indicate such an unusual Department’s hold user fee com- anything § is there in the lan- plies tion. Nor with 9701.8 Accordingly, we affirm § guage logic, nor that would the decision of the district court.9 prohibit agency implementing from AFFIRMED. it previously pro- fee for services that had Moreover, vided for free. as the above- explanations accompanying
mentioned
proposed regulations suggest, Depart- apparently
ment contemplated enhanced
services for tax preparers upon return
implementation regulations of the and the
fee. Lydia ROSENFELD, Plaintiff- III. CONCLUSION Appellant, summarize, § To pro- U.S.C. authority impose vides to a user fee so long agency special confers a bene- CRUISES, INC., OCEANIA 6109(a)(4) (d) § fit. And 26 U.S.C. Defendant-Appellee. expressly provide authority for the Secre- No. 10-12651. tary require to that tax preparers return use the PTIN assigned by the Depart- Appeals, United States Court of ment, i.e., a number other than the prepar- Eleventh Circuit. er’s social security number. And June 2012. 6109(a)(4) § expressly provides any prepared by return preparer a tax return Winkleman, Michael A. Ricardo Valdes shall bear the number assigned by the Alsina, Lipcon, Margulies, Alsina & Win- Department, meaning that a tax return kleman, PA, Miami, FL, Plaintiff-Ap- preparer prepare cannot returns for oth- pellant. ers for compensation without such number. Clair, William F. The Law Offices of in exchange Because for the user fee the Clair, P.A., Miami, FL, William F. Department assigns a PTIN and confers a Defendant-Appellee. special upon benefit tax return preparers (i.e., they are thus privileged prepare
returns for compensation), others for we " suggestion
8.
general pub-
Brannen’s
'e.g., receiving
benefit:
a ...
license
car-
”
may
lic
also benefit from the increased effi-
Id.;
ry
specific
on a
business.’
see also
ciency
Department's
of the
collection efforts
Ass’n,
Nat'l Cable Television
415 U.S. at
holding.
does not undermine our
Even as-
(giving
example
new slip and fall—and that the jury, pre- evidentiary ruling rather than an eviden- sented
tiary ruling effectively waived unreasonably floor would be dangerous argument that the District Court water, with “saturated” id. at could have granting abused its discretion a new returned a verdict for Rosenfeld. fact, panel Had the recognized trial. I dissent from this court’s failure to take rejected it have would Rosenfeld’s First, the case en banc for three reasons. out of hand. a court appeals cannot set jury aside a Instead, panel held that grant verdict and a new trial on an based ruling constituted an abuse of dis- error that was never raised. Rosenfeld cretion prevented jury because it from challenges a pretrial evidentiary ruling considering piece a critical of evidence— provisional. that was only Not it pro- expert’s opinion that the floor could law; visional as a matter of someone, Rosenfeld, cause like slip and knew it provisional that was and treated it fall if the floor was wet. The abuse of such, as why which is proffered she prejudicial, panel’s discretion was so expert’s testimony at trial. view, that the District Court should have Second, assuming that Rosenfeld’s granted Rosenfeld’s motion for a new trial. opening reply and briefs accurately por- Because Rosenfeld chose not to include trayed jury the evidence before the and a transcript of the trial proceedings in the the District Court’s reason for rejecting appeal, record on parties’ briefs con- proffer trial expert’s Rosenfeld’s of the only tain the panel “evidence” the had to I testimony, panel find that the altogether draw on to determine the expert’s whether misapplied Federal Rule of Evidence 702 testimony would jury assisted ruling proffer admissible. If left deciding the case and whether the exclu- undisturbed, I fear panel’s hold- sion of the prejudiced Rosenfeld ing will trial judges cause either to admit extent that it affected her' substan- opinion ought to be rights, tial requiring thus a retrial. The excluded or to suffer reversal if it is ex- contain lawyers’ briefs recollections of cluded. the jury heard from the witnesses. Third, binding precedent and statutory opening Rosenfeld’s brief states law that a appeals mandate court of cannot “while way she was on her to the bath- determine whether a judge his room, abused [Rosenfeld] walked ceramic discretion in denying appellant’s motion slipped tile and and fell on slippery wet for a new without a substance” and that “immediately after the testimony presented to the fall, slip and she looked around and was exhibits introduced into evidence. This is Appellant’s wet.” Br. at 2. an- Oceania’s so no error is reversible unless it swer brief states that dry” “[t]he floor was prejudicial so as to affect and that the appellant’s Rosenfeld fell because she was rights. “almost substantial It running high-heeled the appellant’s shoes.” Appellee’s Br. at burden to prejudice, 9. To demonstrate such ap- decide the peal in favor of burden solely that cannot on a be satisfied without reading briefs, of the parties’ record panel of what the heard. had to accept lawyer’s Rosenfeld’s repre- relieved Rosenfeld of this burden and or- sentation of the presented dered a trial solely lawyer’s new on her the Terrace entering exiting District Court had trons representations likely traverse. That area was Rule would misapplied alongside bar where wait staff— a service as follows: opinion organized This occasionally customers—would All as the I out the case Part sets water, juice, glasses patrons. etc. for pretrial pro- I it. start with accepted slipped that she and fell Rosenfeld said District Court’s ceedings principally — dining to use the exiting while area summary motion denial of Oceania’s restroom, walking gait at normal provisional and the court’s judgment shoes, on tile small-heeled she described inadmissi- wet. Rosenfeld’s husband also noted slip and present then ble—and *4 the floor wet when he came to his was opening fall in Rosenfeld portrayed as waitress, (otherwise, opinion wife’s aid. A Terrace brief inadmissible). hand, I Part other the floor was plainly would be observed explaining why panel had no dry immediately ends af- inspected when she the District Court’s deci- to review cause Although ter fall. waitress did not appeal Rosenfeld’s was effec- sion because fall, actually slip witness Rosenfeld pre- from a nonreviewable tively she said Rosenfeld to be appeared II Part ruling. discusses District running high heels before she fell. ruling excluding expert’s opin- arguments in a va- sounded prece- Part testimony. ion III reviews theories, riety of all built on negligence but holding appellant that an cannot ob- dent (1) three propositions: the Terrace floor of a tain reversal the denial motion wet; inwas fact Oceania had either showing prejudicial trial without a new wet, actual notice floor was be- something cannot do without a she error — so, cause Terrace staff made it or proceedings before the notice, constructive because someone else jury. explains why has Part IV made it have no- and Oceania should wet requirement, though this even subverted fell; ticed condition before Rosenfeld may so not be done floor Oceania had notice that the immediately reading obvious to someone dangerous was when wet. As to this third I opinion. why Part V states panel’s arranged have the fric- point, Rosenfeld dissenting opinion. this written Terrace’s slip-resistance tion flooring Peter tested. Rosenfeld hired
I.
Vournechis,
slip-resistance
an Australian
stage
that was set for
To understand
analyze the
specialist, to
floor.1
necessary
it is
to understand
panel,
testimony,
In his
deposition
part
how
case arose. To do so—for rea-
trial,2
would
proffer
Rosenfeld
II.A,
explain
part
I
sons
infra —one
explained
performed
Vournechis
that he
parties’
on appeal.
must look to
briefs
internationally accepted
they
standardized
part,
say.
In
here is what
relevant
friction
the floor in
a “satu-
testing on
both
A.
“dry”
and a
rated” condition
condition.
resulting
He then
friction-coef-
applied
Nautica’s
fell
one
M/V
ficient
to the minimum Australian
restaurants,
values
buffet-style
the Terrace.
slip-resistance in food-ser-
standards for
slipped,
which had a
area where
floor,
applications
an area
vice
and concluded
pa-
ceramic tile
was
where
testify
2.
at tri-
Nautica
docked in Australia
Vournechis
unavailable
M/V
al.
the time this suit was filed.
around
require-
floor was below the minimum
unreasonably dangerous based on stan-
ments when “saturated”
potable
wa-
that applied
dards
to wet
floors
food-
dry,
ter.3 Yet when
the floor would not
therefore,
service areas. Oceania argued,
slips.
contribute to
that Vournechis’s testimony was either un-
helpful
applied
facts, irrelevant,
as
Vournechis tested the floor without
or both.
knowing
floor, i.e.,
what was on the
type
liquid
quantity
and its
counsel,
Ro-
After hearing from
—when
slipped.
senfeld
Nor did he know what Court ruled
deposition
testi-
fall,
have contributed to her
such
mony
was,
ruling
inadmissible.
Its
gait
course,
and footwear. Nor could Vournechis
provisional; the
court was
testify
replicated
vacuum,
that his test
the amount
without the benefit of the evi-
floor,
type
liquid
any,
on the
ultimately
dence that would
be introduced
Rosenfeld slipped. Nor did Vournechis
at trial. Rosenfeld
proffer
could
the testi-
flooring
offer
alternative
mony
choice that
at trial once she introduced the evi-
would have been safer than the Terrace’s
dence
presumably
Vournechis
used as a
effect,
ceramic tile.
all
predicate
Vournechis
opinion. Thus,
for his
*5
could establish was that the floor
slip-
case,
the close of her
Rosenfeld
proffer
did
pery when wet.
his testimony specifically, excerpts she
—
extracted from
deposition.
his
The Dis-
denying
After
Oceania’s motion for sum-
trict
presumably upon Oceania’s
Court —
mary judgment, the District Court held a
objection
excerpts
—excluded
conference,
pretrial
during which it sua
marked
for the record
them
as Court’s
sponte raised the issue of whether to admit
#
Exhibit
1.
into evidence at trial
deposi-
Vournechis’s
testimony.4
tion
Rosenfeld argued that a
jury
After the
returned a verdict for
jury could not find for
Oceania,
her unless Vourne-
Rosenfeld moved the District
chis were allowed
testify
to
that the floor’s Court for a new trial based on
provi-
tile had an unacceptably low friction coeffi-
sional pretrial exclusion of Vournechis’s
wet,
cient when
minimum
compared
as
to
testimony, arguing that she could not show
requirements
friction
areas,
in food-service
negligent
choice of flooring surface with-
and was thus unreasonably dangerous.
In
out
testimony
just
saying
that. Ro-
opposition, Oceania contended that Vour-
senfeld presented the court with citations
testimony
nechis’s
was unreliable because
pretrial deposition
testimony that was
it did not fit the facts of this case.5
presented
Vour- not
jury, namely
state-
nechis, Oceania argued, did not know ments Rosenfeld and her husband and
whether or to what extent
Kovaeevic,
the floor was
Jelena
the Terrace restaurant
wet, yet he testified that
waitress,
the floor was
made when deposed. She also
3.
slip-resistance
The Australian
essary
standards for
if Oceania had no notice that the floor
food-service
stringent
areas are less
than the
was wet.
comparable American standards.
challenge
5.Oceania’s
was based on Federal
arguing
admissibility
of Vournechis’s
702,
Rule of Evidence
as construed in United
testimony,
acknowledged
Rosenfeld
Frazier,
(11th
States v.
by Plaintiffs
even
noth
Indeed
proffer.
and defendant’s
record
careful review
after
trial,
at
the dis-
happens
unexpected
ing
fully advised
otherwise
being
the court
of
abuse
dis-
... under the
[b]y definition
ruling
aon
a District
We review
will be
there
of review
cretion standard
of discretion.
for abuse
for new trial
motion
the district
we
affirm
which
occasions
(11th
972
Whitfield,
F.2d
805
v.
Lanham
gone
have
though we would
even
court
between
1986).
critical difference
"The
Cir.
is
That how
way
been our call.
had it
other
de novo review
review
discretion
abuse of
differs from
standard
an abuse
discretion
'recognizes [a]
discretion
abuse of
is that
weAs
have
of review.
novo standard
de
judge
the trial
conclusions
range
possible
of discretion
the abuse
previously,
stated
"
Me
Thompson v. RelationServe
may reach.’
range
choice
"a
allows
standard
Cir.2010)
Inc.,
(11th
dia,
668
F.3d
court,
long
choice does
as that
so
district
J.,
appeal and dis
concurring (Tjoflat,
judgment.”
error
clear
constitute a
(alteration in
cross-appeal)
senting in the
(quoting
(alterations
original)
Id.
668-69
Frazier, 387
States
(quoting United
original)
Rasbury v.
Frazier,
at 1259
banc)).
Cir.2004) (en
(11th
Cir.1994))) (in-
I.R.S.,
specifically,
More
omitted).
quotation marks
ternal
however,
free,
argument,
I
judge
in the exercise of sound
For the sake of
trict
panel
ap-
will address this
as the
discretion,
previous
to alter a
judicial
I
parently has.
will assume that Rosen-
rul-
an in limine
ruling.”).
limine
argu-
feld did
waive or abandon the
is,
purposes, super-
ing
for all intents and
ment that
District Court abused its
by
judge’s
ruling
trial
final
on
seded
trial,
when,
discretion
it denied her
trial.
the evidence at
preju-
denial
proffer, and
the final
precedent
tells us is that Dis-
What
affecting
diced her case thus
her substan-
pretrial
ruling declaring
trict Court’s
rights
I
requiring
tial
retrial. What
deposition testimony
inadmis-
will demonstrate is that the
never-
legal
had no
effect. The
sible
court could
when,
seeing
theless erred
the case for
ruling
after
revisit
was,
what Rosenfeld said it
re-
introduced evidence the
versed the District Court and ordered a
If
wanted the
addressed.
I
new trial.
shall elaborate in the next
testimony,
to have the benefit of his
she
part.
into
offer it
evidence. And
II.
she
problem
did. Her
is that she did
trial
not seek
new
on the basis
on appeal
Rosenfeld contended
that she
ruling
proffer;
courts
on
rath-
at-trial
to a
was entitled
new
er,
her
she based
motion
the court’s District
Court abused
discretion
ex-
It
pretrial ruling.
cluding
is a matter of common
expert
her
witness and
ruling severely prejudiced
that a District
erroneous
sense
Court cannot
held
argument,
course,
case. Each
ultimate-
to have
an evidentiary ruling
issued
ly
application
concerns
District Court’s
denied the
appellant
fair
when the
of Federal Rule of Evidence
merely provisional, preliminary,
governs
admissibility
testi-
temporary.
mony.
If this case
panel says
all
result of
of this is that Rosenfeld is,
panel’s
face,
opinion,
then the
on its
has waived any argument
she
*7
erroneously applies
evidentiary
the
rule at
had that the District Court abused its dis-
the heart
this
case.
when,
trial,
cretion
prof-
it denied her
Therefore, I will now assess whether the
appeal
fer.
Rosenfeld’s
thus a run-of-
District
evidentiary ruling
Court’s
was in
issue,
the-mine case
anof
abandoned
assume,
error.
If
are
we
as the
argument
no
why
whatsoever for
the Dis-
has,
apparently
the sans-transcript
evidentiary
trict Court’s final
at tri-
ruling
record before us is sufficient to review the
al
should now
reviewed.
court
This
evidentiary ruling, then the District Court
“will not address a claim that
been
reasonably applied Rule 702 in excluding
appeal
abandoned
being
on
or one that is
words,
expert.
other
if the reader
appeal,
raised
the first time on
without were to
assume
the record before the
Now,
any special conditions.” Access
Inc.
panel contained sufficient evidence from
Co.,
v. Sw. Airlines
prejudicial
which
trial error could be de-
(11th Cir.2004).
panel,
failing
The
termined, that
did
record
not reflect that
situation,
recognize this
committed error
expert’s testimony
Rosenfeld’s
was admis-
it purported
to review the “merits”
most,
place.
sible in the first
At
all appeal
i.e.,
when it re-
expert’s testimony
possibly
could
establish
—
appeal
viewed Rosenfeld’s
from an in li-
that' a
tile floor could be slippery when
ruling
appealed
mine
as
she had
Considering
wet.
this
fact
well
District
trial ruling.
experience
juror,
Court’s
average
within the
1#
for identification. Oceania
well
its Exhibit
acted
within
Court
District
day,
case
presented
then
its
on
second
testimony. Al-
to exclude such
discretion
stand;
four
to the
Dr.
might
calling
witnesses
the members
though
Evans, physician;
Lind-
conclusion,
Theodore
Robin
we
different
reached a
have
Kovacevic;
Dr.
Yuk-
say;
Sami
Jelena
say
District
ground
no valid
sel,
day
ship’s
On the third
physician.
abused its discretion.
Court
trial,
found for Oceania.
A.
can
We
assume from
it relates to the
record on
as
ruling
pretrial
and from the fact
on March
and ended
began
testimony
not ad-
only portion
contains
on March
mitted that the District
did not alter
Court
at trial.
It includes the
on
transpired
of what
based
the evidence
trial.
assumption might
entries One
be that the District
deputy
courtroom
clerk’s minute
trial;
proffer for
Court denied the
the same
day
courtroom
for each
deposition pretrial.
it excluded the
List”;
reason
and Witness
deputy clerk’s “Exhibit
simply
But
we
do
know
to be true
proffer
#
of Vourne-
Court’s Exhibit
on the
on
do
appeal.
based
record
We
list;
testimony, as
on the
chis’s
indicated
actually happened
know what
at trial or
charge
jury.
and the District Court’s
what the evidence showed.
a note
The record also includes
they
were at one
jurors indicating
B.
jury’s
as
as the
ulti-
point deadlocked well
702, Testimony by Experts, states:
Rule
post-trial
record con-
verdict.
mate
qualified
A
Trial”
witness who is
“Plaintiffs Motion
New
tains
skill,
training,
knowledge,
experience,
Denying
“Order
and the District Court’s
may testify
or
in the form of
education
As I have al-
For
Trial.”
Motion
New
if:
opinion or otherwise
stated,
include a
ready
the record does not
(a)
proffer,
scientific, technical,
transcript of the Vournechis
or
oral
colloquy,
specialized knowledge
help
court-counsel
court’s
will
other
or a
the trier
to understand the
ruling;
of fact
jury.
evidence or to determine a
before
fact
issue;
and Witness List indicates
The Exhibit
(b)
is based on suffi-
her witnesses
that Rosenfeld called all of
data;
cient facts or
present-
day
first
trial. She
*8
(c)
testimony
product
the
the
of
is
testimony of
her-
four witnesses:
ed
methods;
principles and
reliable
Cabrera,
husband;
self;
Jorge
Dr.
a
(d)
reliably
expert
applied
has
Lindsay,
physician;
Robin
an Oceania
and methods to the
principles
(via
deposition).
official
his
She also intro-
facts of
the case.
Report,”
“Incident
into evidence an
duced
Statement,”
“Diary.”
and a
“Corporate
added).7
(emphasis
Fed.R.Evid. 702
to admit or
day
began
of the trial
with
the decision whether
The second
sev-
expert testimony is based on
marking
proffer
as Court’s
exclude
Vournechis
1260).
apply
iteration is as fol-
panel’s opinion
this rule
387 F.3d
That
7. The
does not
Rather,
lows:
directly.
applies
it
our iteration of
expressed
States v.
the rule as
in United
courts must consider whether:
Trial
Frazi-
(11th Cir.2004) (en banc).
(1)
er,
qualified
testify
expert
to
com-
eral
factual
For ex- must make thus concern
scien-
identifying
knowledge
tific
and the facts at
issue.8
‘[fjaeed
ample, we have said that “when
a proffer
expert
with
of
scientific testimo-
The District
admitting
Court’s decision
judge
ny
discretionary
...
the trial
must determine
or
evidence is a
”
call;
judge
no
commits
reversible error
preliminary
outset’
such
facts as
“
unless his decision constituted an abuse of
expert
proposing
“whether the
to testi-
discretion. Piamba Cortes v. Am. Air-
(1)
(2)
knowledge
fy to
scientific
will
lines, Inc.,
(11th
1272,
177 F.3d
1305-06
of fact
or
assist
trier
to understand
Cir.1999).
Supreme
explic-
Court has
”
issue.’ United States
determine
fact
itly stated that
these determinations
are
Paul,
(11th Cir.1999)
906,
v.
910
subject
review,
abuse-of-discretion
(alteration
v.
original) (quoting
Daubert
which
they
cannot
overturned unless
Inc.,
Pharm.,
579,
Merrell Dow
509 U.S.
Elec.
“manifestly
are
Gen.
erroneous.”
2786,
592,
2796,
113 S.Ct.
125
469
L.Ed.2d
Joiner,
v.
Co.
136, 141-43,
522
U.S.
118
(1993)).
findings
The factual
judge
512, 517,
S.Ct.
(internal
omitted).9
quotation marks
“A
address; (2)
exists,
methodology
by
qualified,
er a
privilege
witness is
or
expert
reaches
his
suf-
conclusions
is admissible”
"[w]hen
ficiently
reliable as determined
the sort
depends
relevance of evidence
on whether a
Daubert;
inquiry
of
mandated in
exists, proof
fact
must be introduced sufficient
fact,
assists
trier
support
of
finding
that the fact does exist.”
scientific,
through
application
tech-
also,
104(a)-(b);
e.g., Isely
Fed.R.Evid.
see
v.
nical,
specialized expertise,
under-
Province,
Capuchin
F.Supp.
877
1066
stand the evidence or to
a fact
determine
(E.D.Mich.1995) ("[U]nder Daubert, the Court
in issue.
perceives
respect
role
to the admissi-
Frazier,
added)
(emphasis
1329
172,
F.2d
Lynskey,
v.
452
if it
error.” Ries
its discretion
abuses
court
district
(7th Cir.1971);
standard,
v.
see also Schmid
follows 178
legal
incorrect
an
applies
Joiners,
Carpenters &
827
Bhd.
making
in
deter- United
procedures
improper
of
(8th Cir.1987)
curiam)
384,
(per
that F.2d
386
mination,
findings of fact
or makes
Humana,
appeal contains a
(“Although the record on
v.
Klay
clearly erroneous.”
are
Cir.2004)
(11th
special
of
verdict form
1241,
copy
Inc.,
1251
382 F.3d
Inc.,
did not order a
given,
instructions
Schmid
Healthgroup,
Klay v. United
Cir.2004)) (inter-
(11th
re
transcript
proceedings
of the trial
1092, 1096
F.3d
376
10(b).
omitted).
by
P.
In the
quired
RApp.
Fed.
Whether
quotation marks
nal
this
transcript,
of a
court cannot
to have
absence
Court could be said
the District
rais
on the first three issues Schmid
excluding
the testi-
rule
its discretion
abused
Buckles,
es.”);
232 F.2d
Ry.
the court
Tex. Pac.
v.
mony
on whether
&
depends
(5th Cir.1956) (“The
257,
hospital
based its decision
261
rec
misapplied the law or
In
brought
of fact.
is
for
clearly
finding
in evidence
not
on a
erroneous
ord offered
context,
example,
for
on
expert-admission
transcript
appeal,
of record
ward
exhibit,
its discretion
could abuse
are
consequently
a District Court
nor as
we
the nature of the ex-
misperceived
say
if it
court erred
position
not in
”).10
to which the
or the facts
pert’s
....
An ob
record
relates.
testimony purportedly
jection
not
evidentiary ruling
prop
to an
for
erly preserved
the record
C.
transcript
appeal does
include
See,
colloquy
testimony.
e.g.,
precludes
relevant
of a trial
The lack
Jacobsen,
(8th
487, 488
748 F.2d
knowing
the District Court Carter
us
Cir.1984)
curiam);
v. Town
(per
Brattrud
rejecting
prof-
said
(8th
1098,
Exline,
deposition testimony.
628 F.2d
Cir.
of
fer
of
curiam).
1980)
(per
panel could
precluded
ought
fact alone
This
not have reviewed the District Court’s ex
the District Court’s
appellate review of
of
at trial
ruling. “It is
if not
clusion Vournechis’s
evidentiary
important,
essential,
there was an insufficient record to
reviewing
court that
short,
P.,
In
for abuse of discretion.
R.App.
Rule
Fed.
review
appellant under
upon
argu
all
of the we do
know
what facts
bring
parts
court
before
exercised its dis
necessary for
deter- ments
Court
proceedings below
any
validity
claimed cretion.
mination of
ever,
necessary
appraisal
Supreme
facts
make
Court held that abuse
ous
determination,
such as what is the
Rule 702
proper
of review for
discretion is
standard
expert's testimony
fact
issue to
to admit or exclude
a district court’s decision
misapprehen-
purportedly
Such
141-43,
relevant.
testimony.
expert
Id. at
118 S.Ct.
because,
sion is an abuse
discretion
517.
loiner,
"manifestly
words of
erroneous.”
may be reconciled in this
The two standards
(internal
U.S. at
Humana, precedent Circuit because it tutes Eleventh short, Cir.2004). a district court abuses prior down to October was handed Prichard, making finding clearly City if it errs in discretion Bonner v. See Buckles, findings (11th Cir.1981) (en banc). including concerning the Like fact — testimony. id. predicate See Fifth Circuit cases I cite in this factual all of the *10 opinion if it were decided before that date and a district court abuses its discretion precedent. clearly are Eleventh Circuit on a errone- thus excludes an based order, pretrial
D. In the Court District stated that Rosenfeld to wanted introduce only that could assume floor, to testimony “show rejected proffer District Court for the wet, unreasonably dangerous.” [was] pretrial reasons it stated its order ex- Inc., Cruises, v. Oceania No. cluding testimony. Such Vournechis’s 08-22174-CIV-KING, 2, slip op. at assumption panel obviously —which (Order 10, 2009) (September WL 2905605 rendering made in its —does Granting to Expert Motion Preclude Testi- indicate District Court would Strike). mony & Denying Motion to excluding have its abused discretion testimony court found that the would not testimony. Moreover, al- Vournechis’s “helpful,” expert’s opinion though evidentiary the District Court’s unsafe limine, floor was when wet was find- ruling preliminary, was and ... ing “properly jury left for the to on de- conditioned the evidence that would be see, trial, Id. at presented e.g., cide.” 3.11 Ohler Unit- States, ed U.S. 758 n. S.Ct. The District Court prof- excluded the 1854 n. 146 L.Ed.2d deposition fered testimony Peter Vour- (“[IJn rulings binding limine are not on jury nechis because it would not assist the judge, the trial judge always and the in determining a fact in According issue.12 change during his mind the course of a (which pretrial deposition to testimony trial.”), there is no evidence in the record jury hear),13 did not Rosenfeld was that would indicate the extent to which—if walking speed across the floor at a normal pre- all—the District Court altered that gait only high, heels an inch or so liminary ruling. a transcript Without slipped because, her, unbeknownst — heard, what the there is no basis here Rosenfeld, the floor was wet. Mr. on com- to believe that some evidence adduced at aid, ing his wife’s depo- also claimed on prelimi- affected the District Court’s sition that the floor was wet. At nary effect, evidentiary ruling chang- —in testified; both Rosenfelds one as- might ing the exclusion of Vournechis’s testimo- sume, based on the pan- record before the ny from inadmissible admissible. In el, they both stuck their claim that light, there is no need to assume that the floor was wet. the District Court’s exclusion Vourne- Upon inspection, close fact in true chis’s at trial differed from its issue in this case was whether a floor was pretrial exclusion. Extrapolating wet. dispute Oceania did not what that Mrs. we do about know injured. Rosenfeld fell and was evidentiary So the fall without —and consequent injury cause to my analysis assume were not issue. otherwise — Rather, shows that disputed was un- was the wet- necessary, improper, appropriately ex- ness of the floor. The two Oceania wit- cluded. said, nesses who observed the floor finding 11. If the put expert appears court had pretrial District Court’s language of Rule it would have said that ruling. colloquy following If the at trial Ro- expert's opinion that the floor was unsafe basis, proffer senfeld’s indicated a different "help when wet would not the trier of fact ... we shall never know because did determine fact in issue.” Fed.R.Evid. colloquy transcribed. 702(a). only deposition 13.The read to the discussion, light foregoing Lindsay, that of Robin the Oceania executive. only recorded basis for Rosenfeld's *11 inquiry whether the un- common sense was not. The first was that it deposition, layman qualified would be to deter- trained Kovacevic, duty on a waitress Jelena intelligently possible and to the best mine accident. the time of the Café at Terrace degree particular issue without en- get from up Rosenfeld She observed Mrs. having special- lightenment those past exit and head for a Café her table subject understanding ized of the involved very shoes were “[Rosenfeld’s] buffet bar: ” ____ Ray, v. 987 F.2d dispute.’ Pelster dress,” tight She had high heels (8th Cir.1993) Fed. run- walking, almost “was and Rosenfeld note). advisory committee’s R.Evid. 702 fast, go ... like she wants ning, very typically matters of common sense something and pick up or go the toilet expert require or allow for testimo- do not Record, doc. real fast.” Vol. come back See, id.; ny. e.g., see also Evans v. Math- not Kovacevic did see Mrs. at 77. Home, Inc., 996 F.2d is Funeral aware of the fall. became She (11th Cir.1993) (explaining that the Dis- to where Mrs. momentarily and rushed fall its discretion trict Court did abuse the floor lay. She observed testimony that uneven excluding expert Yuksel, her; dry. Dr. Sami it was around lit could have contributed poorly steps doctor, was to the ship’s summoned potential fall plaintiffs no water on the floor. He saw scene. effect of those factors was “within So, had to jury of fact the the issue jurors”); knowledge common Ellis telling which witnesses were was decide Co., Purchasing Oil Miller dry? wet or If the floor the truth —was (“Where (8th Cir.1984) curiam) (per Rosenfelds, Mrs. jurors believed subject knowledge is matter within walking gait aat normal Rosenfeld was lay experience people, expert or testi- wet, and, floor was unaware that instance, For mony superfluous.”). is jurors If disbelieved and fell. slipped expert testimony court held that Pelster Rosenfeld, they against find Mrs. would that car was inadmissible establish her. been rolled back because odometers had testi- did need “any ability compare lay person or not mony in order to determine whether titles, readings two odom- on odometer That was not fell. dis- Mrs. Rosenfeld statements, or check-in sheets and eter to decide—in pute. What vehicle’s whether when the decide wheth- the cause of the fall—was Pelster, terms of rolled back.” odometer had been slipped fell because she er Mrs. Rosenfeld analysis say at 526. To that this reason, for floor or some other on wet common simply is another lies within sense Kovacevic’s such as reason way say expert testimony walking, almost run- suggested subject trier of fact to will not assist the —she fast, All very very high heels. ning, already than he anything understand more would that Vournechis’s does. water or wetness on the established present case: It The same is true to someone un- present
tile would floor that if a tile floor is wet is common sense an unrea- of the water wetness aware wetness, one and one unaware of slipping. risk sonable might on soles of one’s slip depending — observation, Ordinary gait. experience a common-sense shoes and the This us, if a tile floor is juror example, would have tells something typical Floor,” has been experi- sign, “Wet everyday a matter of life wet and known as apparent, ap- posted, or the wetness determining “The ence. test floor, one wants to traverse the testimony is ‘the one still propriateness of *12 1332
tiptoes
Expert testimony
across the floor.
should
afforded a new trial. As I will
jurors
help
explain,
would not
understand this
could not have conduct-
concept
juror
every
already
knows
the appropriate
ed
review in this case
it.
without a trial
in the record on
appeal.
Because the
nevertheless
Consequently, the District Court found
grant
proceeded to
Rosenfeld a new
that Vournechis’s
not
would
as-
it erred even further.
determining
sist
fact in issue.
Oceania did not take issue with
propo-
A.
that,
wet,
sition
if the floor was
Mrs. Ro-
When,
appeal,
appellant
an
seeks a
only
have slipped.
senfeld could
fact
new trial
on an
evidentiary
based
adverse
in issue was thus whether the
floor
ruling, the court of appeals decides wheth-
wet. Vournechis’s
couldn’t have
aer new trial should
according
be ordered
jury resolving
assisted the
the wetness
2111,
§
to the dictates of 28 U.S.C.
Harm-
issue. The
finding
District Court’s
to that
less error: “On
hearing
any appeal
effect was
“manifestly
therefore not
erro-
case,
any
...
the court shall give judg-
Joiner,
142,
522
neous.”
U.S.
118 S.Ct.
ment
an
after
examination of the record
(internal
omitted).
quotation
at 517
marks
regard
without
to errors or defects which
turn,
And in
finding
because the
of fact on
do not
rights
affect
substantial
of the
court made
its
was not
parties.” This standard is substantially
erroneous,
clearly
and because the court
similar to harmless-error
review
correctly identified the central
issue of
District Courts under Federal
Rule Civ-
fact—was the floor wet?—the District
il Procedure
Harmless Error:
Thus,
Court did not abuse its discretion.
justice
otherwise,
Unless
requires
assuming
no er-
the District Court’s
basis
ror in admitting
or
evidentiary
evidence—
ruling at trial mirrored its ba-
any
other error
the court or a
pretrial
sis for its
ruling,
party
ground
granting
new
Court did
tri-
not err.
—is
al,
verdict,
for setting
aside
or for
III.
vacating, modifying, or otherwise dis-
turbing
judgment
or order. At every
This case does not
with
analysis
end
stage
proceeding,
of the
the court must
of whether the District Court erred. The
disregard all errors and defects that do
panel still had to determine whether that
any party’s
affect
rights.
substantial
error was
grave
so
as to warrant a new
trial.
I
Consequently,
begin
that discus- Fed.R.Civ.P. 61.14
errors
do
“
sion
a review of what a court of not
‘affect the
rights
substantial
appeals
do
should
when an appellant
parties’
are
sufficient to set aside a
claims
evidentiary ruling
adverse
jury verdict in an appellate court.” Palm-
constituted an abuse of discretion and af-
v. Hoffman,
109, 116,
er
318 U.S.
63 S.Ct.
fected
rights
substantial
such that she
Í333
so,
(current
prejudicial.
whether
error
§
version
28 U.S.C.
U.S.C.
*13
(“The
See,
have
2111)).
e.g.,
appellants
id.
not influence
“the error did
§
If
effect,”
up only partial
record and there
brought
very slight
or had but
jury,
way
argument
is no
to determine that
the substan-
error did not affect
then the
supported by
respon-
was not
of counsel
and the verdict
parties
rights
tial
record.”).
States,
sive to the entire
This court
v.
stand. Kotteakos United
should
in a
analyze
prejudice
cannot
error
1239, 1248,
764,
90
66 S.Ct.
328 U.S.
because what constitutes
in
vacuum
error
added).
(1946)(emphasis
1557
L.Ed.
may
inconsequential
the abstract
be
in
establish a critical
requirements
These
totality
light of
of evidence before
distinction between error —which does
See, e.g.,
of fact.
United
v.
finder
States
necessarily require
prejudi
reversal —and
Co.,
514, 516, 74
Borden
347 U.S.
S.Ct.
justify
does
new trial.
cial error —which
(1954) (“The
703, 705,
B. motion for a new tri- denying Rosenfeld’s hand, what Ro- Turning the case al, might the reader discern court for a new trial said motion senfeld’s proceeded skipped the first task and di- the District Court was that District Court second, deciding rectly whether its excluding her ex- abused its discretion evidentiary ruling affected be inconsistent with pert and that it would rights. substantial The court’s decision new justice grant the interest of accepted implicitly Rosenfeld’s contention evidentiary ruling the court’s trial because prejudice[]” satisfied the “severe[] It is rights. had affected her substantial substantial-rights prerequisite entertain argu- what these essential understand rejected motion for a new but way light meant in ments the exclusion of argument Vourne- Particularly, one must this case. decided *15 “severely had deposition chis’s may transpired realize whatever her prejudiced” case. v. Ocea- its the went about jury, panel before the Cruises, Inc., 08-22174-CIV- nia No. transcript proceed- of task a the without 2010) (Order KING, briefly slip op. (May I will ings. my point, reinforce To Trial). facing Denying the District Court Motion for New In reach- outline the tasks however, addressing conclusion, in panel, respectively, the court ing the arguments. took into necessarily account the evidence presented jury. the that had been The 1. explained ruling District Court assessing District Court’s task in The on a “careful of was based review motion for a new is, the merits of Rosenfeld’s record.” Id.17 That the District Court First, the court had was two-fold. clearly prejudice not issue did resolve of determine whether the exclusion Vour- in a vacuum. deposition an abuse of
nechis’s constituted
discretion, i.e., whether the District Court Second, did, place. it erred first Rosen- panel’s reviewing task had to determine whether court arguments on was the same feld’s substantial
error affected Rosenfeld’s legal the District The relevant (“A as Court’s. 103(a) rights. party See Fed.R.Evid. specifically § 2111— 28 U.S.C. ruling to admit or claim error a standard — panel review the court’s mandated a only if the error affects exclude evidence If it evidentiary ruling. panel found to ”); party of .... see right substantial discretion, (“[N]o of it to deter- abuse error in ad- also Fed.R.Civ.P. whether, light pre- mine ... evidence mitting excluding evidence jury, ruling to the had affected for a new trial .... sented ground granting rights such that a party’s not substantial Rosenfeld’s substantial affect do[es] a[] only assign any proposition error to a level of innate stands such necessary testimony was prejudice by as conceived of cases like Ahlst- understanding edt, Kotteakos, jury's of one causal link—be- or Hall. slip a a one of tween wet floor and —under liability plaintiff's of and thus theories 17. The “record” in this context—that under Fed.R.Evid. should have been admitted issuing denying a judge an order motion for a Frazier, States v. 702 and United presided— he new trial in case over which most, (en banc). Cir.2004) At necessarily everything jury includes saw holding speaks innate error such and heard trial. testimony; it Vournechis's does required according panel, new trial was in the interest of to the this court need not justice. transcript it a took have before what place before in order to determine
C. District whether the Court’s exclusion of problem facing panel reviewing appellant’s evidence affected the substan- prejudice rights and new trial tial entitled to a trial record incomplete was that error was harmless.20 Rosenfeld, a mat- perhaps to examine. D. appellate strategy, deliberately
ter of de- prived of what the witnesses said In the absence what jury by instructing report- the court actually place jury, took before the provide transcripts er not to effectively that a of ap- holds court proceedings. What witnesses said was imagine can peals transpired what before panel’s crucial determination of whether determining the exclu- justice required whether a new trial on the party’s sion affected substan- ground that the exclusion of Vournechis’s rights. The appeals’ imagina- tial court of deposition affected Rosenfeld’s substantial tion this case was informed yet rights; it impossible Rosenfeld made place pretrial took witnesses said —what *16 panel determination. for the to make that deposition byor by on what affidavit—and panel transcript The lacked even a of the place jury according took before the place colloquy took between the court attorney’s representations Rosenfeld’s and counsel attorney when Rosenfeld’s appeal. his briefs on proffered deposition Voumechis’s testimo- said attorney following Rosenfeld’s ny (presumably) per- and asked court’s in his reply brief to court: this jury. mission to read it to the argues any Oceania error was All Rosenfeld included in the record argument harmless. This is absurd be- what took place jury’s presence cause the total exclusion of Plaintiffs were the District Court’s charge on the slip and fall in this slip and fall deliberate,18 law before the retired destroyed Lydia right case Rosenfeld’s (2) a note the jury indicating from that it to a fair trial. The basis for Oceania’s deadlocked, was jury’s verdict harmless argument equally error is ab- finding Oceania not negligent. What the First, surd. argues Oceania panel in reversing done weight of the at trial was that therefore, judgment, is to relieve dry. the floor This is incorrect. Rosenfeld of the well-established obli- put Oceania on two witnesses who said gation of showing the exclusion of the (Oceania that the dry employ- floor was expert’s testimony, proffered which she Yuskel) ees Kovacevic and Rosen- jury, absence of the constituted harm- is, put ful feld on two obligation error —that witnesses who said the of estab- lishing that floor (Lydia the exclusion of the was wet Alan Rosen- feld). opinion Second, evidence affected her argues “substantial Oceania that be- i.e., rights,”19 denied her a fair trial. cause the verdict form answered “No” to 2111; 18.The record § does not contain a 19. See 28 U.S.C. Fed.R.Civ.P. 61. rather, charge; Pleadings 2 of the Volume proposition presumably applies equal- 20. This contains court’s instructions which we ly plaintiffs and defendants who suffered jury. assume were read verbatim to evidentiary rulings. adverse not made panel is that the could have this that means the posed, question the first argument a record of what the determination without jury “rejected failure to maintain the making that “Defendant’s District Court considered or failure to dry condition sum, area in panel rulings. could on spilling substances prevent correctly reversed and remanded case condition” causing an unsafe surface and the record before it. based on legal or was negligence, constituted injuries.” This TV. Plaintiffs cause of Nonethe- unfair inference. absurd does not announce panel’s opinion actually Rosenfeld’s ar- supports less openly but so neces- its own error does not al- Because Rosenfeld was gument. impera- I it to be sary implication. believe any expert put lowed to tive, however, against possible warn subject of the the condition regarding implicit in holding misappropriation surface, simply no there flooring panel’s opinion. to have found evidence for con- an unsafe subject [in] floor was A. wet. dition when such that a The form the Appellee’s Br. at 4-5 Reply Br. at § 2111’s judge lawyer familiar with “ex- or 30).21 record” mandate amination Remarkably, the found reversible likely functional error in the to realize the characterization of on such error based method. the manner panel’s Given thereupon trial —and transpired at crafted, judge opinion is which the opinion granting Ro- published authored a deceived; reading lawyer it could thus panel essentially a new trial. senfeld the reader would conclude *17 they as if were party’s briefs accepted one appeal always do did what courts of so, doing the of the trial. a record claims, here, that the Dis- appellant requirement that an the panel neglected exclusion of evi- trict erroneous prejudice— show affirmatively appellant rights,” her “substantial dence affected deliberately here appellant the justice because re- warranting a new trial tri- doing by replacing transcribed avoided quires one. lawyer’s appellate testimony with her al Nevertheless, the done happened of what say-so representations observation. apparent upon closer becomes erred respect, trial. In this the opinion would start where reader gravely. facts, starts, recitation statutory Notwithstanding Congress’s had been assume that facts established trial a new cannot or- command—that by testimony at trial. adduced eviden- on the basis of an erroneous dered Náu- aboard the passenger While a M/V pro- unless the record of tiary ruling tica, Lydia slipped fell on jury reveals that the ceedings before the near buffet bar of a ceramic tile floor appellant’s substantial error affected She suffered the vessel’s Terrace Café. necessarily panel’s opinion is rights —the and incurred medical a shoulder fracture characteriza- appellate on the briefs’ based course, of her fall. Rosen- expenses as result problem, of tions of the trial. The Rather, ings jury. simply he re- attorney, before point that Oceania’s I should out brief, attorney appellee’s plied did men- what Rosenfeld's answer in kind to appellant failed include tion opening brief. said in his proceed- of record on brought thusly: diversity against argues feld action first element “Rosenfeld Náutico, operator of Ocea- district court abused discretion M/V Cruises, (“Oceania”), by nia Inc. to recover prohibiting from introducing expert her claimed, injuries. damages for her She flooring Oceania’s choice of alia, negligently inter Oceania higher danger slip-and-fall of posed acci- by failing caused the to provide accident types.” dents than other surface Id. at adequate flooring surface for buf- Then, informing 1192-93. after the reader fet area Terrace Café. passing that the District Court had “en- tered a pre-trial precluding order Vourne- Cruises, Inc., v. Oceania testimony,” chis’s id. at Cir.2011). the reader Next, 1191-92 appro- would see returns opinion’s the reader would follow the track trial, priately indicating to the scene proffer and find Vourne- once more that the court is reaching its testimony, opin- chis’s deposition which the decision on an based examination plaintiffs ion credits as crucial to the case. “At record. Rosenfeld raised case, prove To her Rosenfeld offered the deposition] again, [Vournechis issue Vournechis, testimony of Peter asking the district court to allow her to floor-safety specialist an Australian who deposition read jury. various performed coefficient-of-friction The court denied oral motion.”22 Id. tests to determine the slip resistance Immediately statement, following this flooring Nauticals surfaces. M/V opinion moves perfunctorily to the end of that, Vournechis found under wet condi- evidence, the case: tions, “[a]t close of the the ceramic-tile surface surround- the court jury.” instructed the Id.23 ing inadequate- the Terrace had an Café ly low he coefficient friction. concludes, The opinion then in the two proposed to that the floor- testify passages appearing below, that the Dis- ing reasonably for a surface was not safe trict Court abused its pre- discretion area, it self-serve bistro cluding from hearing what Vour- posed high passing risk for those nechis say had to and that the error was through slip the Café to and fall. harmless, meaning affected Ro- rights: senfeld’s substantial opinion’s Id. 1192. The statement *18 facts and of the expert’s proffered testimo- Because jury the was not allowed to ny would inform the reader that the court consider evidence about whether the slip appeals of doing precisely § was resistance of flooring posed the danger a required; the court examining was the to passengers Nautica, aboard the M/V record to determine whether the Dis- could have found Rosenfeld’s trict Court’s exclusion of the proffered tes- favor regard to her negli- main timony constituted an of gence abuse discretion theory; slip matters of resistance and, so, whether it affected Rosen- and surface “beyond friction are un- the rights. feld’s substantial derstanding experience reader and of the aver- opinion would find that the age addresses the lay citizen.” Accordingly, we con- the appeal Because record on opinion does not 23. The quotes portion a of the Dis- transcript proceedings contain a of the at (which trict Court's instruction is not relevant trial, panel the did not have a of here). quotation is not derived from a colloquy place that took between court instead, transcript; it is derived from the and parties counsel for the when Rosenfeld's jury charge court’s written which was filed attorney pretrial asked the court to revisit its appears with the clerk and in a volume of ruling permit and deposition Vournechis's Record, pleadings. See Vol. doc. 72. jury. be read to the § rights.” 28 U.S.C. 2111.26 court erred stantial the district elude that not realize is that What reader would preclude Oceania’s motion granting opinion in the the facts recited testimony. proposed not-harmless-error-holding for the basis Rouco, (citing United States Id. presented came not from Cir.1985)).24 but, instead, jury, parties’ from the that the district court’s say cannot [W]e reader would appellate briefs. The have Rosenfeld harmless. Because error was expected the reader been misled because prov- to admit evidence was not allowed panel would base its decision to that of choice ing inadequacy Oceania’s grounds trial on the grant Rosenfeld new surface, have jury could not flooring jury erroneously deprived was that the Terrace the floor near found evidence, important piece ex- necessarily unsafe buffet was Café’s opinion; ruling affected her pert’s jury was Consequently, when wet. rights; justice and that re- substantial whether Oceania’s not able consider trial. quired new flooring caused of ceramic-tile choice injuries. particular- This is Rosenfeld’s B. ly problematic light negligence of the effectively the pan- convinced “the given instruction enough el that she suffered error harmful injury plaintiff alleges jury’s to overturn verdict —without by Defendant’s failure choose caused panel a record of what the presenting flooring surface for the area adequate Instead, heard. takes the occurred.” where the accident presented parties case as the have it on Id.25 only consisting record —with so, And would reader parties’ representations deposition readily accepted conclude that the court was not into admitted evi- was, argument which Rosenfeld’s lumps pretrial dence. The then §of that the District Court language exclusion of Vournechis’s to- abused its discretion Vourne- prof- gether with the denial of Rosenfeld’s deposition testimony chis’s should fer the denial Rosenfeld’s a new trial be- granted equally motion for a new trial as undiffer- re- cause “an examination the record” entiated “error” —each which carries a review.27 ruling sub- different standard of What “affect[ed] [her] vealed that expert's opinion dispositive evi- addressed was floor 24. Since the court made its slippery dentiary when it entertained when wet—not that Rosenfeld Hence, slipped dry proffer deposition of Vournechis's would have floor. *19 relevant, presum- testimony, opinion we that would and assume Oceania’s "motion his was, instead, objection only preclude” ably jury, to the an would have assisted if the proffer. jury found that the floor was wet. Rosenfeld's plaintiff opinion’s 25. statement that the The treat ”[w]e 26. The reader would the court’s “injury by that her was caused De- claimed say cannot that the district court’s error was adequate harmless,” Rosenfeld, to choose an floor- fendant's failure 654 F.3d at the ing the for the area where accident equivalent surface of "affect the substantial functional Inc., occurred,” Cruises, v. § Oceania rights,” 28 U.S.C. 2111. Cir.2011), implies 654 1194 F.3d Assuming plaintiff inadequate the Court committed er- that claimed that District ror, grounds there are in fact two distinct that flooring caused her fall and that justify in this The I ex- would reversal case. first is buttressed such a claim. As II.D, evidentiary ruling part supra, exclud- plained in the claim the District 1340 Additionally, effect of
panel saying is in the substance Vourne- testimony testimony plainly chis’s was so obvious to any stage of Vournechis’s —at an ordinary person that Rosenfeld could inherently prejudicial, the case—was no by prejudiced have been its exclusion. at trial no happened matter what and mat- Instead, holding panel’s elevates appellate ap- what of review ter standard expression plain of common sense—that plies. and, slippery wet tile floor could be there- panel simply could not have decided fore, dangerous paramount level —to prejudice issue on record before it. importance to Rosenfeld’s case. The gravity Consider the ought Indeed, not to have done so. says regarding prejudice error District Court’s discretion is broader as it in this case: excluding expert relates to Because Rosenfeld was not allowed to experience falls within the common admit proving inadequacy knowledge jurors. surface, flooring of Oceania’s choice jurors This so because when no need jury could not that the found issue, assistance to understand the fact at near the Terrace was floor Cafe’s buffet expert’s testimony lend undue necessarily when wet. Conse- unsafe credence to party’s one view of the facts quently, jury was not able consid- that testimony bears the imprima- er Oceania’s whether choice of ceramic- tur expert. of an v. Ray, Pelster 987 flooring injuries. tile caused Rosenfeld’s (8th Cir.1993), F.2d 514 for example, a particularly problematic This is in light panel of the Eighth explained Circuit in an negligence given instruction case, odometer-fraud jury “the plaintiff alleges case, any In this lay person injury was caused Defendant’s failure ability compare the odometer read- an adequate flooring choose surface titles, statements, ings on two odometer for the area where accident oc- or check-in sheets decide whether curred.” the vehicle’s odometer had Rosenfeld, been rolled (emphasis 654 F.3d at back. expertj’s [an add- ed). panel’s holding means that odometers on 204 even wet, if the U.S. cars found that the floor Wholesales other vehi- was not cles had been rolled back before those prejudicial Vournechis’s exclusion er- passed through cars ror. South Even if the found Central that Oceania necessary jury. aid wet, had no notice that the floor was Vour- prejudicial nechis’s exclusion was error. ing testimony. planation why We review evi- evidentiary ruling at issue dentiary rulings discretion, abuse discretion. in this case Proc- was not abuse of Inc., Enters., supra part tor Fluor see II. (11th Cir.2007). gain n. "To a reversal ground The second is the District Court’s evidentiary
based on a district ruling, court’s denial of Rosenfeld’s motion for a new trial. party must establish its claim was We review the denial of a motion for a new adequately preserved; similarly district court for abuse of Lan- discretion. *20 interpreting (11th abused its discretion apply- Whitfield, in or ham v. 805 F.2d 972 rule; ing (3) Cir.1986). evidentiary an and judge this error The trial abuses his discre- ” right.’ affected a ‘substantial grants Id. at he jury’s 1349 tion if newa trial when the Stephens, v. United States 365 “contrary great F.3d verdict is not weight to the of (11th Cir.2004); 103(a)) Valdosta, City Fed.R.Evid. the evidence.” Williams v. of (internal omitted). (11th quotation Cir.1982). marks For ex- expert’s po- V. of [the added factor investigator” for as a “criminal sition Writing dissenting opinion has this been in- danger further increased state I very undertaking. a distasteful testimony. testimony his His in herent it because I am concerned about written testify- analogous police a detective is of the court as an integrity institution. said that several witnesses ing Appellate Rule 35 of the Rules of Proce- wearing jacket a blue was drug dealer that an “en banc ... rehear- dure declares drugs prove time he sold not ing ordinarily favored and will not been so attired and the dealer had unless: en banc consider- be ordered defendant, arrested with who was necessary secure or maintain ation distributing of jacket, guilty blue decisions; uniformity the court’s of drugs. illegal question of ex- proceeding involves omitted); (citation see also Id. at 526-27 RApp. Fed. ceptional importance.” P. Home, Inc., 996 v. Mathis Funeral Evans 35(a)(1) (2).— (“In Cir.1993) barring F.2d probable as to expert’s “slip ordinarily A routine and fall” case causing in these factors effect of each of present question exceptional does fall, found the district court first Evans But en importance. banc consideration of of the first three factors that the effects “slip fall” necessary case became (the treads, the brick uneven risers grant the panel rehearing. refused to steps, height) the handrail patio and Surely, maintaining integrity knowledge of were all within the common making process court’s decision is matter value of jurors, probative and thus importance. exceptional outweighed by such (citing respectfully Fed.R.Evid. I danger prejudice.” dissent.
403)). like these illustrate an obvi- Cases more testi-
ous principle:
mony knowledge, common relates to preju-
less exclusion can be said to have Indeed, such proponent’s
diced its case.
was the case here. sum, we do know heard, know we cannot whether independent basis
Oceania established Moreover, why negligent. it was not observation Vournechis’s common-sense REHBERG, Charles A. un- virtually nothing jury’s added Plaintiff-Appellee, derstanding. proper holding, as Corp., v. Cabot 385-86 Flores (5th Cir.1979) curiam), is that Rosen- (per PAULK, P. his individual ca James showing feld has not carried burden III, Hodges, pacity, Kenneth B. his holding If the prejudicial panel’s error. capacity his official individual we contrary cannot know —for Attorney capacity District of evidence that certain absence Burke, Kelly Dougherty County R. recognized implications court capacity, Defendants- his individual panel’s opinion was it—the record before Appellants, in error.