Surles ex rel. Johnson v. Greyhound Lines, Inc.

• Decision Date: 18 January 2007
• Docket Number: No. 05-6743.,No. 05-6713.,05-6713.,05-6743.
• Citation: 474 F.3d 288
• Parties: Sharon SURLES, by next friend Jayneice JOHNSON, Plaintiff-Appellee/Cross-Appellant, v. GREYHOUND LINES, INC., Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

474 F.3d 288

Sharon SURLES, by next friend Jayneice JOHNSON, Plaintiff-Appellee/Cross-Appellant, v. GREYHOUND LINES, INC., Defendant-Appellant/Cross-Appellee.

No. 05-6713.

No. 05-6743.

United States Court of Appeals, Sixth Circuit.

Argued: December 5, 2006.

Decided and Filed: January 18, 2007.

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ARGUED:

Kent L. Jones, Sutherland Asbill & Brennan, Washington, D.C., for Appellant. Andrew L. Berke, Berke, Berke & Berke, Chattanooga, Tennessee, for Appellee.

ON BRIEF:

John W. Bonds, Jr., Sutherland Asbill & Brennan, Atlanta, Georgia, for Appellant. Andrew L. Berke, Berke, Berke & Berke, Chattanooga, Tennessee, Jodi J. Aamodt, Jacobs, Manual & Kain, Baton Rouge, Louisiana, for Appellee.

Before MOORE and CLAY, Circuit Judges; BELL, Chief District Judge.^*

OPINION

CLAY, Circuit Judge.

Defendant, Greyhound Lines, Inc., appeals from the district court's judgment awarding $8 million in compensatory damages to Plaintiff, Sharon Surles, for injuries sustained while a passenger on one of Defendant's buses. Plaintiff cross appeals from the district court's orders limiting discovery and granting in part Defendant's motion in limine to limit the admissibility of prior incident reports. For the reasons that follow, we AFFIRM the district court in all respects.

BACKGROUND

A. Substantive Facts

On October 3, 2001, Plaintiff was traveling aboard one of Defendant's buses from Michigan to Georgia. Also aboard the bus, passenger Damir Igric ("Igric") behaved suspiciously, and the bus driver, Garfield Sands ("Sands"), took notice. The bus made a routine stop in Horse Cave, Kentucky, and from there continued toward Manchester, Tennessee. During this leg of the journey, Igric began walking "back and forth up to the front of the bus," asking the driver when the bus would stop next every fifteen to twenty minutes or so. (J.A. at 984) The bus did not have an entry-resistant barrier next to the driver's seat.

Sands was driving the bus at an approximate speed of 65 to 70 miles per hour when, without warning, Igric attacked him from behind with a box cutter, slitting the driver's throat. Igric then grabbed the steering wheel. Although Sands struggled to maintain control of the bus and fought with Igric to regain the wheel, Igric "jumped down over the steering wheel and put his whole body over the steering wheel, covering it . . . trying to get [the bus] over into the median." (J.A. at 993) Sands finally managed to push Igric away from the wheel, but lost control of the bus in the process. The bus careened off the road into a ditch. Sands survived both the attack and the crash and, exiting the bus, attempted to get help from drivers passing by. Plaintiff sustained permanent injuries to her spinal cord in the crash, which left her a paraplegic. Igric did not survive.

B. Procedural Facts

On November 1, 2001, Plaintiff brought a diversity suit in U.S. District Court to recover for personal injuries sustained in the accident. During discovery, Plaintiff served Defendant with a Request for Production of "any and all documents and/or incident reports generated as a result of any other violent episodes which have occurred on a Greyhound bus since 1975," as well as "all memoranda or other notes of the defendant which concerns [sic] terrorist activity, criminal conduct, unruly passengers or decorum or conduct on buses," among other things. (J.A. at 69-71) Plaintiff later brought a motion to compel production. In an order dated December 20, 2002, the district court narrowed the scope of Plaintiff's requests and, as to the remaining objectionable requests, directed Defendant to specifically set forth the degree of the burden imposed at a later time. Defendant later made this showing and, on May 13, 2004, the district court further limited Plaintiff's requests.

Following the completion of discovery, on July 12, 2005, Defendant filed a motion in limine to exclude evidence of prior incidents on its buses, arguing they "lack the requisite substantial similarity to be admissible." (J.A. at 482) The district court granted in part and denied in part Defendant's motion, providing for the admissibility of incident reports for incidents (1) occurring between October 3, 1997 and October 3, 2001, which (2) "involved a passenger assaulting or attempting to assault the driver or grabbing or attempting to grab the driver, the steering wheel or the brakes," (3) on a moving bus. (J.A. at 714-15) Pursuant to the district court's order, Plaintiff introduced reports of forty-two incidents on Defendant's buses.

Additionally, on July 22, 2005, Defendant filed motions in limine to exclude the opinions and testimony of Plaintiff's proffered expert witnesses under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court granted the motions only insofar as it barred expert testimony on the foreseeability of the attack, but denied the motions in all other respects, on August 1, 2005.

At trial, Defendant elicited testimony on cross-examination from Plaintiff's expert, Lance Watt, that no local, state, or federal regulation required "driver's shields enclosures" in passenger buses, and that no commercial bus lines had installed driver's shields as of October 2001. (J.A. at 1033) On this basis, Defendant requested a jury instruction on state of the art principles. The district court declined to so instruct the jury.

At the close of trial, which lasted seven days, the jury found for Plaintiff, holding Defendant liable in negligence and awarding $8 million in compensatory damages, with no award of punitive damages. Defendant moved for judgment as a matter of law, arguing that Plaintiff failed to present sufficient evidence of causation. Alternatively, Defendant also moved for a new trial on the asserted basis that the district court improperly admitted the prior incident reports, improperly allowed expert testimony, and that Plaintiff's counsel made improper closing remarks on which the court should have instructed the jury. The district court denied both Defendant's motion for judgment as a matter of law, and for a new trial, on September 28, 2005.

Defendant timely appealed to this Court and raises several challenges on appeal. Specifically, Defendant asserts that the district court abused its discretion (1) in admitting Plaintiff's proffered experts as qualified and finding their testimony reliable, (2) in admitting prior incident reports into evidence, (3) in declining to instruct the jury on state of the art principles, and (4) in denying its motion for mistrial. Defendant further alleges the district court erred in denying its motion for judgment as a matter of law. Plaintiff cross-appealed, charging that the district court abused its discretion in limiting the scope of discovery and in granting in part Defendant's motion in limine to limit the admissibility of the prior incident reports. Plaintiff further seeks remand and retrial on the issue of punitive damages, which Plaintiff believes would follow from introduction of the additional prior incident reports to show recklessness.

DISCUSSION

I. PLAINTIFF'S PROFFERED EXPERTS

A. Standard of Review

We review a district court's decision to admit expert testimony, including its "decisions about how to determine reliability" and "its ultimate conclusion," for abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); JGR, Inc. v. Thomasville Furniture Indus., 370 F.3d 519, 524 (6th Cir.2004). In so doing, we reverse only where the district court renders a manifestly erroneous ruling. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); see also Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th Cir.2002) (finding abuse of discretion where the court is "left with a definite and firm conviction that [the district court] committed a clear error of judgment").

B. Expert Testimony: Qualifications and Reliability

Defendant brought motions in limine to prevent Plaintiff's proffered experts from testifying at trial. The district court granted Defendant's motion in limine insofar as it excluded expert testimony on the foreseeability of the October 1, 2001 incident, but otherwise denied the motions, finding that Plaintiff's experts were qualified to proffer testimony and that their testimony was reliable. Defendant argues that the district court "failed to properly apply the Daubert framework to the qualifications of Plaintiff's proffered experts and the reliability of their testimony" and thereby "abandoned its Daubert gatekeeping role." (Def.'s Br. at 18) We disagree.

1. Qualification of Experts

The Federal Rules of Evidence provide that expert witnesses may only testify where that testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. As a threshold matter, expert witnesses must be qualified to testify to a matter relevant to the case, and a proffering party can qualify their expert with reference to his "knowledge, skill, experience, training or education." Id.

The district court did not abuse its discretion in finding Plaintiff's expert witnesses, Robert Martin ("Martin") and Lance Watt ("Watt"), qualified. Martin boasted a law enforcement background, having worked twenty-eight years with the Los Angeles Police Department. In his later years on the force, Martin founded a threat management unit which, among other things, "dealt with . . . managing violently inclined situations of the mentally ill." (J.A. at 906) Now the Vice-President of a consulting firm, Martin has worked with clients in the transportation industry on threat assessment issues, and has overseen the design of threat assessment systems. In his work in the transportation field, he trained employees on "interpersonal human aggression and managing violently...