U.S. Xpress Enterprises v. J.B. Hunt Transport, 02-2587.

• Decision Date: 21 February 2003
• Docket Number: No. 02-2587.,02-2587.
• Citation: 320 F.3d 809
• Parties: U.S. XPRESS ENTERPRISES, INC., a Tennessee Corporation; Jarrett Bush, Plaintiffs-Appellees, v. J.B. HUNT TRANSPORT, INC., an Arkansas Corporation, Defendant-Appellee XTL Transport, Inc., a Canadian Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

320 F.3d 809

U.S. XPRESS ENTERPRISES, INC., a Tennessee Corporation; Jarrett Bush, Plaintiffs-Appellees, v. J.B. HUNT TRANSPORT, INC., an Arkansas Corporation, Defendant-Appellee XTL Transport, Inc., a Canadian Corporation, Defendant-Appellant.

No. 02-2587.

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2003.

Filed: February 21, 2003.

Rehearing Denied: March 18, 2003.

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W. James Foland, argued, Kansas City, MO (Wm. Clayton Crawford and Jack W. Green, Jr., on the brief), for appellant.

Patrick McMonigle, argued, Kansas City, MO for U.S. Xpress.

Eric T. Swanson, argued, Kansas City, MO (Theresa Shean Hall, on the brief), for J.B. Hunt Transport.

Before WOLLMAN and MURPHY, Circuit Judges, and GRITZNER,¹ District Judge.

GRITZNER, District Judge.

On this appeal, appellant XTL Transport, Inc., asserts the district court² erred (1) in failing to undertake an appropriate Batson analysis of XTL's use of a peremptory strike on a prospective juror and by upholding Jarrett Bush's challenge to XTL's peremptory strike of such prospective juror; (2) in failing to grant XTL's Motion for New Trial after U.S. Express failed to timely produce satellite information about the location of its truck prior to the accident in question; (3) by admitting evidence of two absolved Canadian criminal convictions of XTL driver Jacques Trudel for impeachment of Mr. Trudel's trial testimony; and (4) when it reinstated verdicts in favor of Jarrett Bush and U.S. Express after the court, upon its own motion, set aside such verdicts and ordered a new trial. XTL also asserts that it did not abandon or waive appellate review of the trial court's dismissal of J.B. Hunt by not asserting any specific error on appeal with regard to the trial court's entry of judgment in favor of J.B. Hunt.

This case arose out of an accident that occurred on October 29, 1999, in Missouri. Bruce Smith was operating a tractor-trailer for U.S. Express (USX). He was traveling east on I-70 when he approached slower moving traffic, including an unknown tractor-trailer. As Smith began to overtake the unknown tractor-trailer, which was in the right-hand lane, the unknown vehicle allegedly began to encroach upon the lane occupied by Smith.

Once the unknown vehicle came into Smith's lane, Smith steered off I-70, over a guardrail, and collided with an overpass. Smith did not collide with the unknown vehicle. After colliding with the overpass, Smith's vehicle fell from the overpass, landing on a pickup truck below being driven by Jesse Templeton. Both Smith and Templeton died instantly.

USX filed suit seeking compensation for property damage, alleging that either J.B. Hunt or XTL owned and operated the unknown tractor-trailer involved in the accident. Jarrett Bush, the son of Smith, intervened in the case in order to assert a claim for the wrongful death of his father. In addition, Myra Templeton intervened and asserted a claim for the wrongful death of her husband.

The case was tried to a jury beginning on August 13, 2001. A key issue at trial was the identification of the unknown vehicle. The trial concluded on August 22, 2001, with the jury apportioning fault for the accident at 97 percent for XTL and 3 percent for USX. The jury awarded damages in the amount of $1.5-million to the Templeton plaintiffs, $630,000.00 to Jarrett Bush, and $172,000.00 to USX.

The trial court entered judgment in accordance with the jury's findings. The court then dismissed J.B. Hunt from the case and ordered a new trial of the remaining claims in this matter.³ The court's order for a new trial arose out of the court's refusal to disclose to the jury the existence of a "high-low" agreement between Templeton and XTL.

Before a new trial, the Templetons settled their claims against both XTL and USX. Subsequently, both USX and Jarrett Bush filed a joint motion to reinstate the previous judgment set aside by the court. On February 19, 2002, the trial court reinstated its original judgment. XTL appeals from the judgment entered by the trial court on several grounds.

Batson Objection

Counsel for XTL attempted to exercise one of its peremptory strikes to exclude a prospective juror, Lester McRae, from the jury panel. McRae disclosed during voir dire that he was employed as a pharmacy purchasing coordinator at the pharmacy at KU Medical Center. At the time XTL attempted to exercise its peremptory strike, McRae was the only remaining African-American on the jury panel. Counsel for Jarrett Bush, who is an African-American, challenged XTL's attempted strike of McRae, asserting that the strike was improper pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After conducting a brief conference with counsel for XTL and Bush, the court denied XTL's use of the strike on McRae.

Whether the trial court was in error in disallowing the peremptory strike is an issue this court reviews for clear error. See United States v. Campbell, 270 F.3d 702, 706 (8th Cir.2001). In Batson v. Kentucky, the Supreme Court adopted a three-part test to be used to determine whether a peremptory strike violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). First, the opponent of a peremptory challenge must make a prima facie showing that the proponent has exercised the peremptory challenge on the basis of race. Id. at 97, 106 S.Ct. 1712. If the requisite showing has been made, the burden then shifts to the proponent to articulate a race-neutral explanation for striking the juror in question. Id. Finally, the trial court must determine whether the opponent has carried the burden of proving purposeful discrimination by the proponent. Id. at 98, 106 S.Ct. 1712. The holding in Batson was extended to civil cases in Edmonson. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 628, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Under Edmonson, Bush can assert the excluded person's rights on his behalf. Id. at 628-29, 111 S.Ct. 2077.

XTL first claims that Bush failed to make out a prima facie case of discrimination, but we disagree. "A [party] can establish a prima facie Batson case by demonstrating 1) he is a member of a cognizable racial group, 2) the juror is of the same racial group, and 3) the relevant circumstances of the voir dire support an inference of discriminatory purpose." United States v. Moreno, 217 F.3d 592, 594 (8th Cir.2000). Bush is African-American, as is McRae, thereby satisfying parts one and two.

We also find that the relevant circumstances of the voir dire support an inference of discriminatory purpose, thereby satisfying part three. In Davidson v. Harris, 30 F.3d 963 (8th Cir.1994), we noted that where the alleged reason for the strike was because the juror had young children, the strike of a juror appeared suspect given the fact that counsel asked no questions of the juror to verify whether her mere status as a mother of young children engendered sympathy for prisoners. Davidson, 30 F.3d at 966. Similarly, in the present case, although XTL claims they wanted to strike McRae because of his medical background, XTL asked McRae no questions during voir dire related to his medical experience or whether his occupation would lead him to speculate about any medical conclusions presented in the case. In addition, three other jurors had connections to the medical field, yet XTL did not seek to strike any of them.

Upon finding Bush made out a prima facie showing, we next examine step two of the Batson analysis. The second step "does not demand an explanation that is persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834, remanded to 64 F.3d 1195 (1995). Here we seek the facial validity of the explanation that is given. Id.

XTL asserted to the trial court that the reason for the peremptory strike of McRae was because he was the only remaining juror who had any kind of medical background, stating they did not want any juror who might speculate about whether either decedent had temporarily survived the accident. We find that XTL satisfied the second prong of the Batson analysis. While the asserted reason for the strike may seem unconvincing, especially where XTL admitted that no evidence regarding survival would be presented, implausible reasons may be legitimate, and, therefore, as long as the reason is facially neutral, "it must be deemed sufficient at this second stage, even if it bears no relation whatsoever to the case to be tried or the person's ability to serve as a juror." Elem v. Purkett, 64 F.3d 1195, 1198 (8th Cir.1995).

The reviewing court is left to decide whether XTL's explanation for the strike is pretextual. Davidson, 30 F.3d at 965 (citing United States v. Brooks, 2 F.3d 838, 840 (8th Cir.1993)).

XTL argued medical background could impact the juror's assessment of whether there were any survivors, then admitted during the bench conference that there would be no such evidence presented at trial due to the trial court's ruling on the relevant motion in limine. Pretext can be based "on a finding that the factors used to explain the strike are irrelevant to a person's ability to perform as a juror in the particular case." United States v. Jenkins, 52 F.3d 743, 747 (8th Cir.1995); United States v. Jones, 245 F.3d 990, 993 (8th Cir.2001). Whether McRae would speculate about survival was irrelevant to his ability to perform as a juror, as both parties acknowledged there was not going to be any evidence presented regarding whether Smith or Templeton temporarily survived the crash.

A party can also establish an otherwise neutral explanation is pretextual by "showing that the characteristics of a stricken black panel member are shared by white panel members who were not stricken." Davidson, 30 F.3d at 965. The record shows that XTL did not strike three other white jurors who similarly had indirect connections to the...