Michael Scott v. Watsontown Trucking Co. Inc.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cv-00176-DJN Copies to all parties and the district court/agency. [999153323].. [13-1228]
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
Pg: 1 of 15
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1228
MICHAEL LEWIS SCOTT,
Plaintiff - Appellant,
v.
WATSONTOWN TRUCKING CO. INC.; WILLIAM A. MILLER, III,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
David Novak, Magistrate
Judge. (3:12-cv-00176-DJN)
Submitted:
June 17, 2013
Decided:
July 18, 2013
Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
John R. Garza, Bradley N. Kehr, GARZA, REGAN & ASSOCIATES, P.C.,
Rockville, Maryland, for Appellant.
John K. Messersmith, IV,
James H. Revere, III, KALBAUGH, PFUND & MESSERSMITH, P.C.,
Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
Pg: 2 of 15
PER CURIAM:
Michael
Lewis
Scott
brought
negligence
claims
in
the
district court against Watsontown Trucking Company (“Watsontown
Trucking”) and William A. Miller (collectively, “Defendants”).
In
his
complaint,
operation
of
collision
with
trial,
Scott
district
a
instruction,
alleged
Watsontown
Scott
failed
court
Scott
in
to
Trucking
Miller’s
vehicle
Scott
suffered
testify
on
own
Scott’s
the
jury
his
with
objection. 1
a
The
negligent
resulted
which
provided
over
that
in
a
injuries.
behalf,
“missing
jury
and
At
the
witness”
returned
a
verdict of no liability, and after denying Scott’s motion for a
new
trial,
Defendants.
the
district
court
entered
judgment
Scott now appeals that judgment.
in
favor
of
For the following
reasons, we affirm.
I.
Although the parties dispute many of the material facts in
this case, it is undisputed that on July 20, 2010, Miller, a
Watsontown Trucking employee, was operating a tractor trailer
1
By the parties’ consent, a magistrate judge presided over
all aspects of this matter.
See 28 U.S.C. § 636(c)(1).
All
references to “the district court” in this opinion refer to the
magistrate judge.
2
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
owned by Watsontown Trucking. 2
Pg: 3 of 15
As Miller was making a left turn
from Broad Street onto Parham Road in Richmond, Virginia, he
collided with a motorcycle driven by Scott, who was proceeding
southbound on Broad Street.
Scott suffered personal injuries as
a result of the accident.
As the district court succinctly
explained, the dispute at trial “boil[ed] down to whether . . .
Miller had a green light when he turned left from Broad Street
onto
Parham
Road
and
contributory negligence.”
if
not,
whether
[Scott]
acted
with
(J.A. 606.)
Scott filed a complaint against Defendants in the United
States District Court for the Eastern District of Virginia. 3
In
his complaint, Scott brought various negligence claims arising
out of the vehicle accident and sought damages.
Miller and
Watsontown Trucking answered, and the case proceeded to trial by
jury.
Prior
to
trial,
Scott,
believing
that
Miller
would
not
testify, requested that the court provide the jury with Virginia
Model Jury Instruction Civil No. 2.080, which would permit the
2
Based on the jury’s verdict, we view the facts in the
light most favorable to the prevailing party, Defendants.
See
United States v. Cone, 714 F.3d 197, 201 n.1 (4th Cir. 2013).
3
Because the parties to the action were diverse and the
amount in controversy exceeded $75,000, the district court
properly exercised diversity jurisdiction over Scott’s personal
injury claim. See 28 U.S.C. § 1332.
3
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
Pg: 4 of 15
jury to infer from the unexplained failure to call an important
witness that the witness’ testimony was not favorable to the
party who failed to call the witness (referred to hereinafter as
the “missing witness” instruction).
Although the court denied
the request, Miller ultimately testified at trial.
Also prior to trial, Scott’s counsel tendered witness lists
to the court that indicated Scott would be called as a witness,
and
the
district
court
itself
Scott would testify at trial.
labored
under
the
belief
that
Only near the end of trial did
counsel for Scott finally inform the court that Scott would not
be taking the witness stand.
Indeed, Scott never even appeared
in the courtroom during the proceedings.
During
from
trial,
one
of
Scott
(through
Scott’s
counsel)
physicians,
elicited
Dr.
testimony
Steven
Macedo
(“Dr. Macedo”), who averred that he advised Scott not to attend
the trial because protracted sitting would cause his chronic
pain (as a result of injuries incurred during the collision in
question)
to
“spike.”
Dr.
Macedo
did
not,
however,
explain
whether he advised Scott not to testify, or otherwise opine on
the advisability of Scott testifying at trial. 4
4
Indeed, Scott was deposed prior to trial, and there is no
indication in the record that he was unable to sit for the
length of his deposition.
Scott did not introduce any portion
of the deposition into evidence, and the contents are only in
the record pursuant to a post-trial order of the district court.
4
Appeal: 13-1228
On
Doc: 23
Filed: 07/18/2013
learning
that
Scott
Pg: 5 of 15
would
not
testify,
the
district
court asked counsel for Scott whether counsel would be able to
accept a subpoena on Scott’s behalf, compelling him to testify
the
next
day.
Counsel
indicated
that
he
could
not
accept
service of a subpoena, and that in any event, a subpoena would
be untimely pursuant to the local rules of the Eastern District
of Virginia.
When Scott failed to testify or make himself amenable to a
subpoena, Defendants requested that the jury be given the same
missing witness instruction which Scott had proposed earlier.
The district court initially declined to give the instruction,
but sua sponte reconsidered its decision that evening.
Prior to
the district court’s charge conference, the court provided the
parties
with
draft
witness instruction.
jury
instructions,
including
the
missing
Scott objected to the instruction, which
was overruled on the basis that Scott offered evidence about his
recollection of the accident and, by calling Dr. Macedo, Scott
placed his ability to attend the trial in controversy.
The
court therefore gave the following instruction in charging the
jury:
Let’s talk . . . about the unexplained failure to
produce an important witness.
If you believe that a
party,
without
explanation,
failed
to
call
an
available witness who has knowledge of necessary and
material
facts,
you
may
presume
that
witness’
5
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
Pg: 6 of 15
testimony would have been unfavorable to the party who
failed to call the witness. 5
(J.A. 382.)
The jury returned a special verdict, specifically finding
that Scott failed to prove by a preponderance of the evidence
that Miller was negligent.
The jury never reached the question,
therefore, of whether Scott was contributorily negligent, and
never considered damages.
Scott then moved for a new trial pursuant to Federal Rule
of Civil Procedure 59.
motion
before
concluded
that
The district court held a hearing on the
denying
Scott,
it
by
written
opinion.
who
had
initially
requested
The
a
court
missing
witness instruction as to Miller, could not later object when
the court gave an identical instruction after Scott failed to
testify.
Moreover,
the
court
expressed
considerable
concern
that it had been misled by “gamesmanship” on the part of Scott’s
counsel, and again observed that Scott had placed the matter of
his absence in controversy by introducing testimony from Dr.
Macedo.
(J.A. 614.)
The court then entered judgment in favor of Defendants.
Scott noted a timely appeal, and we have jurisdiction pursuant
to 28 U.S.C. § 1291.
5
The district court’s missing witness instruction
identical to Virginia Model Jury Instruction Civil No. 2.080.
6
is
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
Pg: 7 of 15
II.
Scott raises myriad issues on appeal, but at bottom, he
simply assigns error to the district court’s decision to give a
missing witness instruction, and its subsequent decision denying
Scott’s motion for a new trial.
Finding no error in either
respect, we affirm.
We
review
discretion.
the
court’s
jury
instructions
for
abuse
of
See A Helping Hand, LLC v. Baltimore Cnty., Md.,
515 F.3d 356, 370 (4th Cir. 2008).
Of course, “[a]n error of
law constitutes an abuse of discretion.”
Id.
The “judgment
will be reversed for error in jury instructions,” however, “only
if the error is determined to have been prejudicial, based on a
review
of
the
record
as
a
whole.”
Abraham
v.
Cnty.
of
Greenville, S.C., 237 F.3d 386, 393 (4th Cir. 2001) (quotation
marks omitted).
Similarly, we review the denial of a motion for
a new trial under Rule 59 for abuse of discretion.
Robinson v.
Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009).
III.
In this diversity action, we apply the substantive law of
the forum state, Virginia.
U.S.
64,
elements
78
for
(1938).
a
missing
See Erie R.R. Co. v. Tompkins, 304
Before
considering
witness
7
whether
instruction
were
the
legal
met
under
Appeal: 13-1228
Doc: 23
Virginia
law,
Filed: 07/18/2013
we
observe
at
Pg: 8 of 15
the
outset
that
“[b]ecause
we
recognize that an aura of gamesmanship frequently accompanies
requests for missing witness charges, we afford district judges
considerable discretion in deciding when they should and should
not be given.”
Cir.
2004)
United States v. Gaskin, 364 F.3d 438, 463 (2d
(internal
citation
and
quotation
marks
omitted);
accord VRCompliance LLC v. HomeAway, Inc., 715 F.3d 570, 575
(4th Cir. 2013) (“[A]ppellants’ procedural gamesmanship renders
us
unable
to
say
that
the
district
court
abused
its
discretion.”).
In this case, we find significant that the district court
was
confronted
with
considerable
course of the litigation below.
gamesmanship
throughout
As the court observed,
the gamesmanship here was not limited only to [Scott]
seeking the instruction, then objecting to the same
instruction when Defendants sought it. . . . [Scott’s]
counsel led the Court to believe that [Scott] was
going to testify and, importantly, gained a litigation
advantage from that misdirection. And after [Scott’s]
counsel finally made clear that [Scott] would not
testify and defense counsel requested the missing
witness instruction, the Court sought to cure the
situation by inquiring whether [Scott’s] counsel would
accept service of a defense subpoena for [Scott’s]
testimony the next day, which [Scott’s] counsel
rejected.
[Scott’s] counsel also indicated that a
request for a subpoena at that time was untimely,
which was accurate. Consequently, [Scott’s] challenge
to the missing witness instruction must be viewed
within the context of his counsel’s gamesmanship.
(J.A. 614 (internal citations omitted).)
8
the
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
Pg: 9 of 15
In this case, the able magistrate judge who presided over
the trial was able to evaluate, first hand, Scott’s counsel’s
actions, and fashion an appropriate remedy.
that
Scott’s
missing
counsel
witness
asked
for,
instruction,
and
later
The court noted
objected
“misdirect[ed]”
the
to,
court
as
the
to
whether Scott himself would testify, and thwarted the court’s
initial attempts to amicably resolve the missing witness dispute
by
subpoenaing
Scott
to
testify.
(Id.)
Under
these
circumstances, we cannot say that the district court abused its
considerable
discretion
in
giving
the
missing
witness
instruction.
Out of an abundance of caution, however, we will briefly
analyze whether, as a matter of Virginia law, the elements were
met for the giving of a missing witness instruction.
As the
Supreme Court of Virginia has explained, the missing witness
instruction
is
a
“statement
of
the
settled
rule
that
the
unexplained failure of a party to call an available material
witness
gives
rise
to
an
inference,
sometimes
called
a
presumption, that the testimony of such absent witness would be
adverse to such party.”
(Va. 1975).
Neeley v. Johnson, 211 S.E.2d 100, 107
The missing witness instruction has two elements:
availability and materiality.
See id.
Availability may be translated as the power of the
party to produce.
Probable availability rather than
actual availability may be sufficient depending upon
9
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
Pg: 10 of 15
the state of the evidence in each case.
The lack of
power or nonavailability may be due to the person's
absence from the jurisdiction, his illness, the
party’s ignorance of the whereabouts of the witness,
the person's testimony being inadmissible, or other
like
circumstances.
“Available”
is
equated
to
“control” in some cases, that is, the witness is
available if he “is in such relationship with the
party that it is likely that his presence could be
procured.”
Nonavailability may be explained and the
inference, or presumption, rebutted when the litigant
explains the absence.
Id. (internal citations omitted).
Scott
first
argues
that
the
district
court
improperly
placed the burden on him to show that he was unavailable and his
testimony immaterial. 6
Rather, he argues, the burden should have
been placed on Defendants.
Our
review
assertion.
of
the
record,
however,
belies
Scott’s
We are unable to identify where in the record the
court improperly assigned the burden to show availability and
materiality.
mention
of
The discussion cited in Scott’s brief contains no
burdens,
and
alleged error occurred.
we
are
unable
to
discern
where
any
More to the point, however, to the
6
Scott argues, as a threshold matter, that this Court
should abrogate or abandon the missing witness instruction as no
longer appropriate.
As this argument was not raised in the
district court, it is deemed waived and we will not consider it
for the first time in this appeal. See Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993) (issues raised for first time on
appeal are considered waived absent exceptional circumstances).
10
Appeal: 13-1228
Doc: 23
extent
that
Filed: 07/18/2013
the
district
Pg: 11 of 15
court
did
misallocate
the
burdens,
Scott cannot demonstrate prejudice.
The
allocation
review.
of
burdens
is
subject
to
harmless
error
See Belk v. Charlotte-Mecklenburg Bd. of Educ., 269
F.3d 305, 328 (4th Cir. 2001) (en banc) (“[B]ecause the district
court’s findings, which were based on the court’s weighing of
all
of
the
relevant
evidence
presented
at
trial,
would
have
yielded the same conclusion under a proper assignment of the
burden of proof, any error with regard to the burden of proof is
harmless.”).
For
the
reasons
explained
below,
the
district
court had ample evidence that Scott was available as a witness
only to his own cause, and his testimony was material.
It is clear that, as the plaintiff, Scott was available to
testify
on
his
own
behalf.
See
Neeley,
211
S.E.2d
at
107
(“[T]he witness is available if he ‘is in such relationship with
the
party
that
procured.’”).
it
is
likely
his
presence
could
be
As plaintiff, it was “likely” that Scott could
have procured his own presence.
regarding
that
Scott’s
The only evidence in the record
availability
came
from
Dr.
Macedo,
who
testified on the advisability of Scott’s continued attendance at
trial.
Dr. Macedo never discussed whether Scott could testify.
Indeed, the record suggests that Scott was deposed for several
hours
leading
up
to
trial
with
no
apparent
concerns.
Importantly, Scott himself concedes that he was available to
11
Appeal: 13-1228
testify
Doc: 23
when
Filed: 07/18/2013
he
states
on
Pg: 12 of 15
appeal
that
“[h]ad
Plaintiff
been
aware that the missing witness instruction would be given, he
would certainly have testified.”
(Opening Br. of Appellant at
30.)
Scott argues, however, that he was similarly available to
Defendants.
list,
and
subpoenaed.
the
court
He observes that he appeared on Defendants’ witness
would
have
been
available
had
he
been
properly
But this contention ignores the fact that Scott led
and
Defendants
to
believe
that
he
would
in
fact
testify until well after the deadline for obtaining a timely
subpoena.
The district court even went so far as to exclaim
that “never in my life did I think that the Plaintiff was not
going to be testifying in this case.”
(J.A. 332.)
Under these
circumstances, it strains credulity to suggest that Scott was
equally available to Defendants.
Similarly, it is clear that Scott’s testimony would have
been material.
Scott suggests in his brief that his testimony
was not material for two reasons: that he suffered from amnesia
and
would
be
unable
to
recall
the
accident;
and
that
his
testimony would have been merely cumulative because the court
heard from other eyewitnesses to the accident.
We find neither
reason persuasive.
Scott’s claim that he suffered from amnesia is belied by
even a cursory review of the record.
12
In his deposition (which
Appeal: 13-1228
was
Doc: 23
only
made
Filed: 07/18/2013
part
of
the
Pg: 13 of 15
record
by
order
of
the
district
court), Scott testified at length as to the events leading up
to,
and
Scott’s
including
treating
the
accident.
physicians
And
opined
during
that
Scott
trial,
had
one
at
of
least
“partial recollection” of the accident, and that “[i]f he had
amnesia for any period of time, it was extremely short.”
314.)
(J.A.
In other words, there was ample evidence from which the
district court could conclude that Scott had sufficient memory
that
he
could
testify
to
at
least
some
of
the
events
that
transpired when the accident occurred.
We are similarly not persuaded that Scott’s testimony would
have
been
merely
cumulative,
especially
in
the
context
trial about whether Scott was contributorily negligent.
of
a
The
district court observed at length the myriad subjects over which
Scott, and Scott alone, could testify.
These include Scott’s
training and experience with a motorcycle, Scott’s admission (in
his deposition) that he stalled the motorcycle a few blocks from
the
accident,
and
his
familiarity
with
the
intersection.
Moreover, only Scott could provide evidence as to the ongoing
significance of the injuries to him, thus laying a foundation
for damages.
Critical, moreover, to our discussion of materiality is the
district court’s analysis of the inconsistencies between Scott’s
13
Appeal: 13-1228
Doc: 23
deposition
Filed: 07/18/2013
testimony
and
Pg: 14 of 15
other
evidence
adduced
by
Scott
throughout the trial.
For example, [Scott] testified that he did not stop at
the intersection and intended to keep moving through
the intersection when the accident occurred. Yet, two
of [Scott’s] eyewitnesses . . . testified that
Plaintiff stopped at the intersection before he
entered it.
Indeed, contrary to [Scott’s] testimony
during the deposition, the parties stipulated that
“prior to the incident, Mr. Scott was stopped at the
white cross line, slash, stop bar in the middle lane
of West Broad Street.”
Perhaps this significant
inconsistency explains [Scott’s] decision not to
testify.
(J.A. 624 (internal citations omitted).)
In
short,
there
to
testify,
available
testimony.
can
Accordingly,
be
and
the
little
would
doubt
have
district
that
Scott
provided
court
did
not
was
material
err
in
giving the missing witness instruction, and similarly did not
err in denying Scott’s motion for a new trial. 7
7
Scott raises two additional claims of error that we will
briefly dispense with. He asserts first that the district court
erred by reversing its decision not to give a missing witness
instruction. But Scott has not identified how he was prejudiced
in any way by the court’s change of heart.
In the absence of
any prejudice, we decline to say that the court committed
reversible error.
Scott also claims that the court erred by excluding certain
medical evidence.
Again, however, Scott cannot demonstrate
prejudice.
The jury concluded specifically that the Defendants
were not negligent.
It thus never considered damages—the only
issue to which the medical evidence would have been germane.
14
Appeal: 13-1228
Doc: 23
Filed: 07/18/2013
Pg: 15 of 15
IV.
For the foregoing reasons, the judgment of the district
court is affirmed.
facts
and
materials
legal
before
We dispense with oral argument because the
contentions
are
adequately
this
and
argument
court
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?