IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50834
Summary Calendar
WILSON SOPER & ESTATE OF RONALD SOPER, Plaintiffs-Appellees,
and
RELIANCE INSURANCE COMPANY, Intervenor-Plaintiff- Appellee,
versus
SIDNEY MANUFACTURING COMPANY, Defendant-Appellant.
Appeal from the United States District Court For the Western District of Texas (W-94-CV-221)
July 25, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Decedent Ronald Soper and his father sued Sidney Manufacturing
Company on theories of product defect and failure to warn. Soper,
a construction worker, was installing and constructing a manlift
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. manufactured by Sidney when he fell some 170 feet to his death.
Plaintiffs’ theory of the case was that defendant negligently
manufactured one of the brake “shoes” or “dogs” in the manlift such
that it did not properly align with the lift’s guide rail. This
misalignment rendered the shoe’s teeth unable to bite with force
sufficient to keep the manlift from falling. Plaintiffs also
alleged that the defendant negligently failed to warn potential
users that they should not rely solely on the emergency braking
system during installation. Sidney defended on three grounds:
first, that no misalignment in fact existed; second, that Soper
caused the accident by fiddling with the brake shoe; and third,
that Soper’s own failure to wear a safety rope contributed to his
death. A jury found the decedent 40% responsible for his own death
and Sidney 60% responsible. The jury further found that the
decedent’s estate suffered $250,000 in losses, and that Soper’s
father lost an equal amount. After adjusting for certain
stipulated expenses and for the findings of comparative fault, the
district court ordered Sidney to pay plaintiffs $311,415.52, plus
interest.
Sidney’s appeal rests on three primary arguments. First,
Sidney contends that the evidence was insufficient to support a
jury finding of liability on any of the plaintiffs’ theories.
Second, Sidney disputes the trial judge’s decision to allow
plaintiffs to present evidence of three prior accidents involving
the failure of the brake shoe system. Third, Sidney complains of
2 the limits the trial judge placed on the cross-examination of
plaintiffs’ expert witness, Bill Stanfield.
We have little difficulty disposing of Sidney’s first two
arguments. The testimony of Stanfield, along with the plaintiffs’
other evidence, was sufficient to allow a rational jury to find
that Sidney’s negligent manufacture and failure to warn in part
caused Soper’s death. In addition, the trial court correctly
concluded that the three prior accidents were relevant to the issue
of whether Sidney had notice of the frailty of its brake shoe
system, a question important to plaintiffs’ failure to warn theory.
We find the matter concerning the cross-examination of
Stanfield close. Immediately after the accident, intervenor
Reliance Insurance Company, the workers compensation carrier for
Soper’s employer, hired engineer Stanfield’s firm to investigate
the accident. Accordingly, from the beginning, Stanfield had a
financial incentive to find that the negligence of someone other
than Soper’s employer caused the accident. Stanfield ultimately
became the plaintiffs’ primary witness on defect and failure to
warn. At opening statement and closing argument, plaintiffs’
counsel sought to bolster Stanfield’s credibility by implying that
he was a neutral investigator at the time he reached his
conclusions. During opening, counsel stated that Stanfield “was
called, not by the Plaintiffs and not by Sidney, to come down there
and figure out what the heck happened.” Counsel later added, “We
will pay for him to come and testify and tell you what he did.” At
3 closing, counsel made the same sort of factually true statements
designed to imply that Stanfield reached his conclusions before any
financial incentive to fabricate arose. Counsel argued,
We didn’t hire Mr. Stanfield to make his investigation. He reached these conclusions before we ever met Mr. Soper. We brought him here. We wanted you to -- to hear him -- what he had found. We paid for him to be here. I’m not going to -- I’m not going to tell you that’s not the case. But he reached these conclusions and took these pictures before I ever met Wilson Soper. This isn’t something we cooked up for you. This is something that was found out immediately after the accident.
Before cross-examination began, defense counsel asked the
court to rule that he could question Stanfield regarding
subrogation and the potential for bias inherent in the fact the
workers compensation carrier originally sent Stanfield to the
scene. Defense counsel in particular referred to the plaintiffs’
opening statement implying Stanfield’s neutrality at the time he
made the investigation. The court responded, “I don’t believe that
there’s any indication that he would have a bias simply because he
was first employed by the insurance company, so I’m going to deny
that request.”
On cross-examination, the defense elicited from Stanfield
testimony that the plaintiffs were paying his firm for his
testimony, and that he worked full time for an engineering firm
specializing in providing expert testimony. In particular, the
following colloquy occurred:
Q And now you’ve gone to work for this company called AID, right?
4 A Yes. Q And they specialize in litigation engineering, that is, doing what you’re doing here today, isn’t that right? A Yeah. . . .
Defense counsel then asked a further series of questions
emphasizing Stanfield’s extensive experience as an expert trial
witness as well as his financial ties to the plaintiffs. Defense
counsel made an offer of proof, but did not object to the quoted
portion of plaintiffs’ closing argument.
The trial judge’s decision that no potential for bias stemmed
from the fact that Stanfield investigated at the behest of the
workers’ compensation carrier was erroneous. The parties agree
that Texas’s collateral source doctrine made the fact that
plaintiffs received workers compensation benefits irrelevant to the
issues of damages and right to recover. Nevertheless, the
collateral source rule removes only one theory of relevance for
this evidence. Evidence irrelevant on one issue may well be
relevant on another. In this context, we find the defendant’s
analogy to Fed. R. Evid. 411 well-taken. The first sentence of
this rule renders evidence of liability insurance inadmissible if
offered to prove one issue, namely, whether a “person acted
negligently or otherwise wrongfully.” The rule’s second sentence,
however, clarifies that evidence of liability insurance may well be
admissible to show bias.
The fact that an expert investigates on behalf of an insurance
company with an incentive to find someone else negligent is
5 relevant to show bias. An investigator working for a workers
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50834
Summary Calendar
WILSON SOPER & ESTATE OF RONALD SOPER, Plaintiffs-Appellees,
and
RELIANCE INSURANCE COMPANY, Intervenor-Plaintiff- Appellee,
versus
SIDNEY MANUFACTURING COMPANY, Defendant-Appellant.
Appeal from the United States District Court For the Western District of Texas (W-94-CV-221)
July 25, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Decedent Ronald Soper and his father sued Sidney Manufacturing
Company on theories of product defect and failure to warn. Soper,
a construction worker, was installing and constructing a manlift
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. manufactured by Sidney when he fell some 170 feet to his death.
Plaintiffs’ theory of the case was that defendant negligently
manufactured one of the brake “shoes” or “dogs” in the manlift such
that it did not properly align with the lift’s guide rail. This
misalignment rendered the shoe’s teeth unable to bite with force
sufficient to keep the manlift from falling. Plaintiffs also
alleged that the defendant negligently failed to warn potential
users that they should not rely solely on the emergency braking
system during installation. Sidney defended on three grounds:
first, that no misalignment in fact existed; second, that Soper
caused the accident by fiddling with the brake shoe; and third,
that Soper’s own failure to wear a safety rope contributed to his
death. A jury found the decedent 40% responsible for his own death
and Sidney 60% responsible. The jury further found that the
decedent’s estate suffered $250,000 in losses, and that Soper’s
father lost an equal amount. After adjusting for certain
stipulated expenses and for the findings of comparative fault, the
district court ordered Sidney to pay plaintiffs $311,415.52, plus
interest.
Sidney’s appeal rests on three primary arguments. First,
Sidney contends that the evidence was insufficient to support a
jury finding of liability on any of the plaintiffs’ theories.
Second, Sidney disputes the trial judge’s decision to allow
plaintiffs to present evidence of three prior accidents involving
the failure of the brake shoe system. Third, Sidney complains of
2 the limits the trial judge placed on the cross-examination of
plaintiffs’ expert witness, Bill Stanfield.
We have little difficulty disposing of Sidney’s first two
arguments. The testimony of Stanfield, along with the plaintiffs’
other evidence, was sufficient to allow a rational jury to find
that Sidney’s negligent manufacture and failure to warn in part
caused Soper’s death. In addition, the trial court correctly
concluded that the three prior accidents were relevant to the issue
of whether Sidney had notice of the frailty of its brake shoe
system, a question important to plaintiffs’ failure to warn theory.
We find the matter concerning the cross-examination of
Stanfield close. Immediately after the accident, intervenor
Reliance Insurance Company, the workers compensation carrier for
Soper’s employer, hired engineer Stanfield’s firm to investigate
the accident. Accordingly, from the beginning, Stanfield had a
financial incentive to find that the negligence of someone other
than Soper’s employer caused the accident. Stanfield ultimately
became the plaintiffs’ primary witness on defect and failure to
warn. At opening statement and closing argument, plaintiffs’
counsel sought to bolster Stanfield’s credibility by implying that
he was a neutral investigator at the time he reached his
conclusions. During opening, counsel stated that Stanfield “was
called, not by the Plaintiffs and not by Sidney, to come down there
and figure out what the heck happened.” Counsel later added, “We
will pay for him to come and testify and tell you what he did.” At
3 closing, counsel made the same sort of factually true statements
designed to imply that Stanfield reached his conclusions before any
financial incentive to fabricate arose. Counsel argued,
We didn’t hire Mr. Stanfield to make his investigation. He reached these conclusions before we ever met Mr. Soper. We brought him here. We wanted you to -- to hear him -- what he had found. We paid for him to be here. I’m not going to -- I’m not going to tell you that’s not the case. But he reached these conclusions and took these pictures before I ever met Wilson Soper. This isn’t something we cooked up for you. This is something that was found out immediately after the accident.
Before cross-examination began, defense counsel asked the
court to rule that he could question Stanfield regarding
subrogation and the potential for bias inherent in the fact the
workers compensation carrier originally sent Stanfield to the
scene. Defense counsel in particular referred to the plaintiffs’
opening statement implying Stanfield’s neutrality at the time he
made the investigation. The court responded, “I don’t believe that
there’s any indication that he would have a bias simply because he
was first employed by the insurance company, so I’m going to deny
that request.”
On cross-examination, the defense elicited from Stanfield
testimony that the plaintiffs were paying his firm for his
testimony, and that he worked full time for an engineering firm
specializing in providing expert testimony. In particular, the
following colloquy occurred:
Q And now you’ve gone to work for this company called AID, right?
4 A Yes. Q And they specialize in litigation engineering, that is, doing what you’re doing here today, isn’t that right? A Yeah. . . .
Defense counsel then asked a further series of questions
emphasizing Stanfield’s extensive experience as an expert trial
witness as well as his financial ties to the plaintiffs. Defense
counsel made an offer of proof, but did not object to the quoted
portion of plaintiffs’ closing argument.
The trial judge’s decision that no potential for bias stemmed
from the fact that Stanfield investigated at the behest of the
workers’ compensation carrier was erroneous. The parties agree
that Texas’s collateral source doctrine made the fact that
plaintiffs received workers compensation benefits irrelevant to the
issues of damages and right to recover. Nevertheless, the
collateral source rule removes only one theory of relevance for
this evidence. Evidence irrelevant on one issue may well be
relevant on another. In this context, we find the defendant’s
analogy to Fed. R. Evid. 411 well-taken. The first sentence of
this rule renders evidence of liability insurance inadmissible if
offered to prove one issue, namely, whether a “person acted
negligently or otherwise wrongfully.” The rule’s second sentence,
however, clarifies that evidence of liability insurance may well be
admissible to show bias.
The fact that an expert investigates on behalf of an insurance
company with an incentive to find someone else negligent is
5 relevant to show bias. An investigator working for a workers
compensation carrier has a financial motive to find, as Stanfield
did, that someone other than the employer negligently caused an
accident. The potential for bias arises as soon as relationship
between the expert (or his firm) and the carrier arises.
In this case, Stanfield was the plaintiffs’ expert on
causation, defect, and failure to warn. His financial incentive to
lie or to construe the evidence in a manner favorable to the
carrier, and favorable to the plaintiff, was relevant. As
plaintiffs point out, Fed. R. Evid. 403 gives the trial court broad
latitude regarding the admission of evidence, and proof of the
receipt of workers compensation benefits carries the danger that
the jury will draw a prohibited inference regarding the damages a
deserving plaintiff will receive. Had the trial court exercised
its discretion under Rule 403 and found the evidence more
prejudicial than probative, our decision would be rather
straightforward. But the record includes no indication that the
trial court exercised its discretion. On the contrary, the court’s
comments make clear that it thought the evidence irrelevant and
therefore inadmissible under Fed. Rs. Evid. 401-02. We cannot
agree.
We do agree with the plaintiffs, however, that this error did
not affect Sidney’s substantial rights. See Fed. R. Civ. P. 61;
Fed. R. Evid. 103(a). The defendant elicited testimony from
Stanfield that he was being paid several thousand dollars by the
6 plaintiffs at the time of trial, and that he worked as a litigation
expert full-time. Defense counsel used this evidence at closing,
arguing that Stanfield was not an independent witness. Moreover,
Reliance’s recovery was only for $19,025.88, its subrogation
interest. In light of this evidence and argument, we do not
believe that the disclosure of still another financial incentive
for Stanfield to stretch the evidence in plaintiffs’ favor would
have affected the jury’s verdict. No reasonable possibility exists
that this error affected Sidney’s substantial rights. See Miles v.
Olin Corp., 922 F.2d 1221, 1229 (5th Cir. 1991); Liner v. J.B.
Talley & Co., 618 F.2d 327, 331 (5th Cir. 1980). Accordingly, we
find the trial court’s error harmless.
AFFIRMED.