Bellmore v. U.S. Steel Corp., 91-2242
| Decision Date | 18 December 1992 |
| Docket Number | No. 91-2242,91-2242 |
| Citation | 983 F.2d 1065 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Ridrique K. BELLMORE, Plaintiff-Appellee, v. UNITED STATES STEEL CORPORATION, Defendant, USS Great Lakes Fleet, Inc., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before BOGGS and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.
Plaintiff Rodrique K. Bellmore, an employee of defendant USS Great Lakes Fleet, Inc., (GLF), was injured on June 13, 1987, during a "make dock" maneuver when his fellow employees dropped him while lowering him onto the dock. Plaintiff brought suit, asserting state and federal claims. GLF admitted liability, leaving plaintiff's damages as the exclusive issue for trial. The jury returned a verdict in Bellmore's favor in the amount of $125,000. GLF appeals the district court's denial of its motions for new trial, and remittitur. After careful review of the record, we AFFIRM.
Defendant's first issue concerns a statement made by Bellmore's attorney during closing argument suggesting that defendant's failure to call certain fellow employees of plaintiff was because their testimony would have been unfavorable to defendant. At trial, defendant immediately objected to the statement and requested a curative instruction. The district court sustained the objection but denied the instruction. On appeal, GLF contends that a court's failure to give a curative instruction warrants a new trial.
In general, the grant or denial of a new trial is exclusively within the trial court's discretion. Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989). Abuse of discretion occurs when the trial court commits a clear error of judgment and a substantial right of a party is affected. Id. See also Tyler v. White, 811 F.2d 1204, 1207 (8th Cir.1987) (). In civil trials, improper comments during closing argument rarely rise to the level of reversible error. Ramsey v. American Air Filter Co., 772 F.2d 1303, 1311 (7th Cir.1985).
Under the missing witness rule, the factfinder may draw an inference of unfavorable testimony from an uncalled witness, but only when "a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction." Chicago College of Osteopathic Medicine v. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir.1983) (citations omitted). To permit the drawing of an unfavorable inference, a party must show either that the missing witness is physically available only to his adversary or that the relationship between the witness and the opponent effectively renders the testimony unavailable. Id. See also Littlefield v. McGuffey, 954 F.2d 1337, 1346, 1347 (7th Cir.1992). If the uncalled witnesses are equally available to both parties, no inference should be drawn. Harkins v. Perini, 419 F.2d 468, 471 (6th Cir.1969); Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1048 (5th Cir.1990).
Here, not only did Bellmore's attorney not offer proof that the uncalled witnesses were peculiarly within GLF's control, but the record reveals that the absent witnesses were equally available to plaintiff and defendant. Bellmore deposed several of the missing witnesses, and listed several as prospective witnesses in the final pretrial order. Thus, plaintiff was not entitled to a "missing witness" inference, and the district court erred in not giving a specific curative instruction.
Notwithstanding, we find the error harmless since the district court sustained the objection, and shortly thereafter instructed the jurors that Further, the improper comment was relatively brief and was not repeated. See Ramsey, 772 F.2d at 1311; see also, Tyler, 811 F.2d at 1207 (). At the same time, we caution Bellmore's attorney not to repeat such an error in the future.
Defendant also takes issue with the district court's refusal to allow GLF to present expert testimony concerning the distance Bellmore fell. The district court ruled that because there was no testimony relating the distance to damages, Captain Wilson's testimony was immaterial. Defendant maintains that "whatever distance Bellmore fell would bear directly to the nature and extent of any injury Bellmore might have sustained." We review for an abuse of discretion. Logan, 865 F.2d at 790.
We have combed the entire trial transcript, and like the district court, are unable to find any evidence that relates the distance fallen with the nature and extent of Bellmore's injuries. Absent that, we agree with the district court that the distance of the fall was not a "fact that is of consequence to the determination of the action," Fed.R.Evid. 401; and is therefore inadmissible. Fed.R.Evid. 402. See also United States v. Dunn, 805 F.2d 1275, 1281 (6th Cir.1986) (discussing rules 401, 402, 403); see generally, 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence § 401 (1992) (). Bellmore's statement on direct that he dropped a foot or so does not change the result, since it provides merely a description of the incident and is not linked to the degree of plaintiff's injuries.
Lastly, defendant argues that the district court erred in failing to grant its motion for remittitur. We cannot say that the award was so disproportionately large as to "shock the judicial conscience," as there is evidence in the record to support plaintiff's injuries. Matulin v. Village of Lodi, 862 F.2d 609, 614-15 (6th Cir.1988) (citation omitted). We therefore find no abuse of discretion by the lower court. Agristor Leasing v. A.O. Smith Harvestore Prods., Inc., 869 F.2d 264, 268 (6th Cir.1989).
AFFIRMED.
My colleague, Judge Suhrheinrich, has adequately set out the facts in this case. I agree with Judge Suhrheinrich's conclusion that the district court erred by failing to give a curative instruction. Plaintiff's counsel noted the defendant's failure to call certain fellow employees as witnesses, and defendant immediately objected and requested a curative instruction. Absent such an instruction, that remark was unacceptably prejudicial. While this error, standing alone, may not warrant a new trial, I am persuaded that, combined with other factors, this circumstance warrants a new trial. It is significant that counsel made the objectionable comment during his final summation to the jury.
I am persuaded that a second error occurred which was prejudicial to the defendant. While the ship on which plaintiff worked was docking, plaintiff fell from the ship onto the pier. He claims to have sustained serious, continuous injuries from the fall. Apparently, neither party gave particular direct evidence concerning the distance involved, but defendant contended that it was a short distance. Defendant offered expert proof on this subject which was rejected by the district court as immaterial. In my view, this ruling was erroneous because all of the factors involved in the fall are pertinent in assessing the seriousness of the claimed injury. There was a material issue in this case as to whether Bellmore suffered any substantial permanent injury at all. Plaintiff addressed this issue briefly, concluding with the citation of two cases,...
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..."[i]f the uncalled witnesses are equally available to both parties, no inference should be drawn." Bellmore v. U.S. Steel Corp., 983 F.2d 1065, at *1 (6th Cir. 1992) (unpublished) (citing Harkins v. Perini, 419 F.2d 468, 471 (6th Cir. 1969); Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, ......