Getter v. Wal-Mart Stores, Inc., WAL-MART

• Decision Date: 21 September 1995
• Docket Number: WAL-MART,No. 93-3210,93-3210
• Parties: 43 Fed. R. Evid. Serv. 94 Gretchen GETTER, Plaintiff-Appellant, v.STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1119

66 F.3d 1119

43 Fed. R. Evid. Serv. 94

Gretchen GETTER, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.

No. 93-3210.

United States Court of Appeals Tenth Circuit.

Sept. 21, 1995.

John R. Cleary (Karen J. Halbrook, of Husch & Eppenberger, Kansas City, MO, with him on the briefs), of Husch & Eppenberger, Kansas City, MO, for defendant-appellee.

David T. Greis (William H. Pickett, of William H. Pickett, P.C., Kansas City, MO, with him on the briefs), of William H. Pickett, P.C., Kansas City, MO, for plaintiff-appellant.

Before ANDERSON and TACHA, Circuit Judges, and CAMPOS, ^* Senior District Judge.

TACHA, Circuit Judge.

Background

Plaintiff Gretchen Getter brought this diversity action alleging that she sustained personal injuries due to the negligence of defendant Wal-Mart Stores, Inc. Plaintiff alleges that she was injured when she slipped and fell in the vestibule of defendant's store in Atchison, Kansas on December 20, 1989. After a three-day trial, the jury returned a verdict for defendant. Plaintiff then moved for a new trial, and the district court denied the motion. Plaintiff now appeals to this court. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

Plaintiff contends that she is entitled to a new trial because the district court erred by (1) denying plaintiff's for-cause challenge to prospective juror John Agin, (2) excluding plaintiff's expert witness Keith Vidal, (3) admitting the lay opinion testimony of Emma Jean Bramble and Cynthia Gee, (4) allowing defendant to inquire into whether plaintiff had taken measures to prevent pregnancy, and (5) submitting Jury Instruction No. 11. Plaintiff also alleges that the cumulative effect of these errors unfairly prejudiced her and that the jury's verdict was against the weight of the evidence.

Denial of For-Cause Challenge to Prospective Juror

"We review the district court's refusal to strike a juror for cause for an abuse of discretion, keeping in mind that 'the district court is in the best position to observe the juror and to make a first-hand evaluation of his ability to be fair.' " Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1467 (10th Cir.1994) (citation omitted) (quoting Wilson v. Johns[on]-Manville Sales Corp., 810 F.2d 1358, 1361 (5th Cir.), cert. denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987)). The district court must grant a challenge for cause, however, if a prospective juror shows actual prejudice or bias. Id. Actual bias can be shown either by the juror's own admission of bias or "by proof of specific facts which show the juror has such a close connection to the facts at trial that bias is presumed." Id.

In our recent Vasey decision, we noted that "courts have presumed bias in extraordinary situations where a prospective juror has had a direct financial interest in the trial's outcome." Id. at 1468. As examples of such extraordinary situations, we cited a case in which a prospective juror was a stockholder in or an employee of a corporation that was a party to the suit. Id. (citing Gladhill v. General Motors Corp., 743 F.2d 1049 (4th Cir.1984); Francone v. Southern Pac. Co., 145 F.2d 732 (5th Cir.1944)). "In these situations, the relationship between the prospective juror and a party to the lawsuit 'point[s] so sharply to bias in [the] particular juror' that even the juror's own assertions of impartiality must be discounted in ruling on a challenge for cause." Id. (quoting United States v. Nell, 526 F.2d 1223, 1229 n. 8 (5th Cir.1976)).

The challenged prospective juror in this case, John Agin, disclosed during voir dire that he owned stock in defendant corporation and that his wife was then employed by defendant. The district court questioned Mr. Agin regarding his ability to be a fair and impartial juror in light of his connections to defendant. Mr. Agin responded that he had no doubt that he could be fair and impartial. When later questioned by plaintiff's counsel, Mr. Agin assured counsel that he could support a verdict against defendant if the evidence presented at trial warranted such a result. Nevertheless, when the district court refused to dismiss Mr. Agin for cause, plaintiff used a peremptory challenge to remove him from the jury.

Despite Mr. Agin's assurances of his impartiality, the district court abused its discretion by denying plaintiff's challenge for cause. Due to his stock ownership and his wife's employment, Mr. Agin's financial well-being was to some extent dependent upon defendant's. This is precisely the type of relationship that requires the district court to presume bias and dismiss the prospective juror for cause. See Vasey, 29 F.3d at 1460; Gladhill, 743 F.2d at 1050 (" 'That a stockholder in a company which is [a] party to a lawsuit is incompetent to sit as a juror is so well settled as to be black letter law.' ") (quoting Chestnut v. Ford Motor Co., 445 F.2d 967, 971 (4th Cir.1971)).

Having concluded that the district court erred by refusing to grant plaintiff's for-cause challenge to prospective juror Agin, we next must determine whether this error warrants reversal. Plaintiff argues that an erroneous denial of a challenge for cause is reversible error because it forces the litigant to exercise a peremptory challenge. We note that some circuits consider the loss of a peremptory challenge per se reversible error. See, e.g., United States v. Cambara, 902 F.2d 144, 147 (1st Cir.1990) (stating that "restricting a defendant's use of the lawful number of peremptory challenges is reversible error if a challenge for cause is erroneously denied"); United States v. Ruuska, 883 F.2d 262, 268 (3d Cir.1989) ("[T]he denial or impairment of the right to peremptory challenges is reversible error per se.... [It] cannot be dismissed as harmless.") (citations omitted). In our view, however, recent Supreme Court decisions compel the application of harmless error analysis. See Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988); McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. 845, 848, 78 L.Ed.2d 663 (1984). ("[C]ourts should ... ignore errors that do not affect the essential fairness of the trial.").

In Ross, a state court capital punishment case, the trial court erroneously refused to dismiss a juror for cause. As a result, the defendant was forced to use a peremptory challenge to remove the juror. Stating that it had "long recognized that peremptory challenges are not of constitutional dimension," the Court rejected "the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury." Ross, 487 U.S. at 88, 108 S.Ct. at 2278. Thus, "[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Id. ¹

The Ross Court next examined whether the defendant's right to due process was violated by the juror selection process. Under state law, the defendant was required to use a peremptory challenge to cure the trial court's erroneous refusal to excuse a juror for cause in order to preserve the issue for appeal. Id. at 89, 108 S.Ct. at 2278-79. Noting that "peremptory challenges are a creature of statute and are not required by the Constitution," id., the Court held that because the defendant "received all that [state] law allowed him, ... his due process challenge fail[ed]," id. at 91, 108 S.Ct. at 2279-80.

In the instant case, plaintiff received all the peremptory challenges allowed by statute. See 28 U.S.C. Sec. 1870. Thus, applying Ross, plaintiff's right to due process was not violated. Because the district court's erroneous denial of plaintiff's for-cause challenge did not violate the Fifth Amendment or the Seventh Amendment, we must examine whether the district court's erroneous denial of plaintiff's for-cause juror challenge--regardless of its effect on plaintiff's peremptory challenges--was harmless error.

Because the error here is nonconstitutional, we determine whether it was harmless using the standard established in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990). ² "A non-constitutional error is harmless unless it had a 'substantial influence' on the outcome [of the trial] or leaves one in 'grave doubt' as to whether it had such effect." Id. at 1469 (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248.

In this case, the challenged juror did not serve on the jury because plaintiff used a peremptory challenge to remove him. Plaintiff does not allege that the jury as seated was biased. Thus, the district court's refusal to remove Mr. Agin for cause did not have a "substantial influence on the outcome" of the trial, nor does it leave us "in grave doubt as to whether it had such effect." Because plaintiff's right to an impartial jury was not infringed by the district court's erroneous denial of the for-cause challenge, we hold that the error was harmless. ³ See McIntyre, 997 F.2d at 698 n. 7.

District Court's Evidentiary Decisions

Plaintiff's second, third, and fourth allegations of error question the trial court's rulings on the admissibility of certain evidence. In general, a district court's rulings on the admissibility of evidence will not be disturbed on appeal absent an abuse of discretion. Ragland v. Shattuck Nat'l Bank, 36 F.3d 983, 990 (10th Cir.1994).

Plaintiff first challenges the district court's refusal to allow plaintiff's safety expert to testify. A district court may allow expert testimony "[i]f [the expert's] scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. "[A] trial judge's ruling on the admission or exclusion of expert testimony will not be overturned unless it is manifestly erroneous or an abuse of...