Polys v. Trans-Colorado Airlines, Inc.

• Decision Date: 12 August 1991
• Docket Number: No. 88-1298,TRANS-COLORADO,88-1298
• Citation: 941 F.2d 1404
• Parties: 33 Fed. R. Evid. Serv. 1496 David POLYS and Marcia Polys, Plaintiffs-Appellants, v.AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1404

941 F.2d 1404

33 Fed. R. Evid. Serv. 1496

David POLYS and Marcia Polys, Plaintiffs-Appellants, v. TRANS-COLORADO AIRLINES, INC., Defendant-Appellee.

No. 88-1298.

United States Court of Appeals Tenth Circuit.

Aug. 12, 1991.

Edward A. Gleason of Sherman & Howard, Colorado Springs, Colo., for plaintiffs-appellants.

William White (Joseph T. Batuello with him on the brief) of Byrne, Kiely & White, Denver, Colo., for defendant-appellee.

Before SEYMOUR, BARRETT and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiffs, David L. Polys and Marcia Polys, appeal a judgment in favor of the defendant, Trans-Colorado Airlines, Inc., in the Polyses' personal injury suit against Trans-Colorado. We affirm.

On January 14, 1984, Trans-Colorado Flight 216, which originated in Albuquerque, New Mexico, landed at the Durango, Colorado airport, skidded to the left, and stopped abruptly upon impact with a snowbank. R.Vol. I, tab 5 at 1. David Polys was one of four passengers aboard that plane. Approximately two years later, the Polyses filed a personal injury action against Trans-Colorado Airlines, Inc. David Polys claimed that the "aircraft landing incident caused a closed head injury [to him] which produced disabling psychological and psychiatric effects." Mrs. Polys joined the action claiming a loss of consortium. Trans-Colorado admitted negligence in the operation of the aircraft, but denied causation and damages. After a bench trial, the United States District Court for the District of Colorado held for the defendants, finding that the Polyses had "failed to prove that the conduct of the defendant's agents on January 14, 1984, caused any injury to David Polys."

On appeal, the Polyses raise two issues. First, they contend that the district court erred in excluding the deposition testimony of two of the Polyses' expert witnesses. Second, they contend that the district court erred in finding that they failed to prove that Trans-Colorado's admitted negligence caused any injury to Mr. Polys and, thus, erroneously denied recovery for the alleged injuries and damages.

I.

The Polyses argue that the district court erred in excluding the deposition testimonies of two expert witnesses, Dr. Schultz and Dr. Daven. We disagree because the Polyses failed to preserve the issue for appeal by making an offer of proof and the court's ruling did not amount to plain error.

Federal Rule of Evidence 103(a) states in pertinent part:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

....

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

The first purpose of the offer of proof requirement is to allow the trial judge to make an informed evidentiary ruling. The plain language of Federal Rule of Evidence 103(a)(2) requires that the judge be informed contemporaneously with the proponent's attempt to admit the evidence. This will be accomplished if the substance and purpose of the evidence are apparent to the judge from the context in which it is offered, or an offer of proof either precedes or immediately follows the ruling so that the trial judge can reconsider. ¹

To satisfy the rule, we have previously stated that "merely telling the court the content of ... proposed testimony" is not an offer of proof. Gates v. United States, 707 F.2d 1141, 1145 (10th Cir.1983) (citing United States v. Brown, 540 F.2d 1048, 1053 (10th Cir.1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977)). Rather, as the Fifth Circuit stated in McQuaig v. McCoy, 806 F.2d 1298, 1301 (5th Cir.1987), the proponent must explain what it expects to show and "the grounds for which the party believes the evidence to be admissible.... [so that the trial] court [is] on notice of the purpose for which the evidence is offered while there is still time to remedy the situation." ²

The second purpose for the offer of proof is to create a clear record that an appellate court can review to "determine whether there was reversible error in excluding the [testimony]." New Mexico Sav. & Loan Assoc. v. United States Fidelity and Guar. Co., 454 F.2d 328, 334 (10th Cir.1972) (citing Downie v. Powers, 193 F.2d 760, 768 (10th Cir.1951) and 5 Moore's Fed.Prac. (2d ed.), p 43.11, pp. 1381-82); see also McQuaig v. McCoy, 806 F.2d at 1302; Thomas v. Wyrick, 687 F.2d 235, 239 (8th Cir.1982), cert. denied, 459 U.S. 1175, 103 S.Ct. 824, 74 L.Ed.2d 1020 (1983).

Once we find that a party, either in fact or substance, made an offer of proof of excluded evidence, then a trial judge's "decisio[n] to admit or exclude evidence 'will not be reversed by this court absent a clear abuse of discretion.' " Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1266 (10th Cir.1988) (quoting Weir v. Federal Insur. Co., 811 F.2d 1387, 1396 (10th Cir.1987)); see also Rainbow Travel Serv., Inc. v. Hilton Hotels Corp., 896 F.2d 1233, 1242 (10th Cir.1990); United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). This is especially true with respect to deposition testimony. Alfonso v. Lund, 783 F.2d 958, 961 (10th Cir.1986); Reeg v. Shaughnessy, 570 F.2d 309, 317 (10th Cir.1978); Sims Consol., Ltd. v. Irrigation and Power Equip., Inc., 518 F.2d 413, 418 (10th Cir.1975), cert. denied, 423 U.S. 913, 96 S.Ct. 218, 46 L.Ed.2d 141 (1975); Campbell v. Barnett, 351 F.2d 342 (10th Cir.1965).

Under this standard of review, we strongly defer to the trial court. The review is generally setting specific, looking at whether the district court correctly weighed appropriate factors. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). Even if the trial judge abused his or her discretion in making a decision to exclude evidence, we will overlook the error as harmless unless a party's substantial right was affected. ³ K-B Trucking Co. v Riss Intern. Corp., 763 F.2d 1148, 1156 (10th Cir.1985); Julander v. Ford Motor Co., 488 F.2d 839, 842 (10th Cir.1973); Fed.R.Civ.P. 61.

On the other hand, if the complaining party failed to meet the offer of proof standard, we can reverse only if there was plain error affecting a party's substantial rights. Fed.R.Evid. 103(d). ⁴ Although the plain error doctrine applies to both criminal and civil cases, with respect to the latter, "[t]he 'plain error' exception ... has been limited to errors which seriously affect 'the fairness, integrity or public reputation of judicial proceedings.' " McEwen v. City of Norman, Okla., 926 F.2d 1539, 1545 (10th Cir.1991) (quoting Karns v. Emerson Elec. Co., 817 F.2d 1452, 1460 (10th Cir.1987)). ⁵ The "miscarriage of justice" must be "patently plainly erroneous and prejudicial." Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1516 (10th Cir.1984), aff'd 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985).

The Polyses' counsel made no formal offer of proof when the district court sustained Trans-Colorado's objection to the admission of both Dr. Daven's and Dr. Schultz's deposition testimonies. Following the exclusion of Dr. Daven's testimony, counsel responded "Thank you, Judge. The next witness we would call...." R. Vol. II at 25. The next witness was to be Dr. Schultz. Polyses' counsel submitted his deposition testimony for admission. Although their counsel briefly explained that the first will-call witness was out of the country and the second was out of the district, both over 100 miles away, he did not explain the substance or purpose of the experts' testimonies. In response to the sustained objection, Polyses counsel merely called the next witness. R. Vol. II at 26.

Furthermore, the context in which the deposition evidence was offered; following the Polyses' first witness, revealed nothing about the substance or purpose of the testimonies. The Polyses argue, nonetheless, that they met the Rule 103(a)(2) requirement because "in the course of proceedings, the district court was made aware of the nature and substance of the excluded testimony." Appellants' Reply Brief at 8. To support this argument, the Polyses cite four times during the trial when Dr. Daven or Dr. Schultz were discussed. When the doctors' names came up one and two days later, however, the plaintiffs' counsel made no effort to argue for admittance of the deposition testimony and they never explained what its contribution would have been.

The plaintiffs appear to believe that if the significance of excluded evidence becomes apparent later, a trial judge sua sponte must reconsider its earlier evidentiary ruling. The plaintiffs misunderstand the offer of proof requirement. First, eliciting through later testimony the substance of previously excluded evidence, without more in the way of explanation or proffer to the court, satisfies neither the plain language of, nor the purpose for, Rule 103(a)(2). As we stated, the Rule contemplates some contemporaneity between the trial judge's knowledge about the proposed evidence and the evidentiary ruling to allow a proper decision at the time the evidence is offered. Even considering, hypothetically, that counsel had requested admission of the excluded deposition testimonies later in the proceedings when other witnesses testified about these doctors, the testimony in question was not sufficient to apprise the district court of the substance and purpose of the excluded testimony and would not have satisfied the second purpose of the rule--to create a clear record for us to review the trial court's decision. ⁶ Therefore, because the Polyses have not preserved the issue for appeal, we can not review the district court's decision to exclude the deposition testimonies for abuse of discretion. Consequently, we do not reach the harmless error question. Instead, we examine the record for plain error.

We...