Unpublished Disposition, 879 F.2d 865 (9th Cir. 1989)

MEMORANDUM^* 

Norman Ovitt appeals a jury verdict against him in his suit to collect on an insurance policy issued by the Hudson Insurance Company ("Hudson"). Ovitt contends that the district court improperly admitted polygraphic evidence. We affirm.

* Ovitt owned an aircraft hanger in Quinhagak, Alaska. The hanger was insured by Hudson against fire for $800,000. On February 26, 1985, the hanger burned to the ground under suspicious circumstances. Hudson's investigation determined that arson, by or at the direction of Ovitt, caused the fire.

Ovitt filed suit in the district of Nevada to collect on the policy. Ovitt alleged breach of Hudson's duty of good faith and fair dealing. On January 16, 1986, venue was changed to the district of Alaska, and the case consolidated with a declaratory judgment action filed by Hudson. The case was tried to a jury between November 30 and December 7, 1987. The jury found in favor of Hudson. Ovitt timely appealed. Fed. R. App. P. 4(a) (1).

The district court had diversity jurisdiction. 28 U.S.C. § 1332(a) (1). This court has jurisdiction over this appeal of a final judgment. 28 U.S.C. § 1291. The admissibility of evidence is a procedural matter guided by federal law. See Benny v. Pipes, 799 F.2d 489, 493 (9th Cir. 1986), amended, 807 F.2d 1514, cert. denied, 108 S. Ct. 198 (1987). We review a district court's decision to admit polygraph evidence for abuse of discretion. United States v. Miller, No. 86-5200, slip op. 4225, 4231 (9th Cir. Apr. 25, 1989).

II

As part of its investigation into the fire, Hudson administered a polygraph examination to James Hanson, a key witness. Hanson had informed Hudson about two conversations he had had with Ovitt regarding burning down the hanger. Richard Slisz gave the examination. Slisz concluded that Hanson was telling the truth. Although Hanson did not testify at the trial, his deposition testimony was introduced, and played a role in establishing Hudson's claim that Ovitt had burned down the hanger himself.

In pretrial proceedings, Hudson indicated that it intended to offer Slisz's testimony in opposition to Ovitt's claim that Hudson did not act in good faith. Ovitt filed a motion in limine strenuously objecting to the polygrapher's testimony. The judge denied the motion. Ovitt preserved his objection for appeal.

At trial, Hudson presented Slisz's testimony following the introduction of Hanson's deposition testimony. Before Slisz was heard, the judge instructed the jury as to the limited purpose of his testimony. He told the jury that the Ninth Circuit had held that polygraph evidence could not be admitted to establish the truth of any statements, but that it was admissible to establish whether Hudson had acted in good faith in denying the claim.

Hudson's counsel then proceeded to a short direct examination that reviewed Slisz's qualifications, the questions asked of Hanson, and the results. Slisz stated his opinion that Hanson was telling the truth. On cross-examination, Ovitt's attorney asked a question regarding the nature of a polygraph. Hudson objected, and the court told Ovitt's counsel that if he was going to get into the area of the polygraph's reliability, it would allow Hudson to put on rebuttal evidence. Ovitt's lawyer ended the cross-examination at that point. Slisz's notes were also admitted as an exhibit.

In his closing argument, Hudson's counsel mentioned that the polygraph had shown Hanson to be reliable, but limited that comment to the good faith issue. The judge repeated his limiting instruction in the final jury instructions.

III

Ovitt contends that the polygraph evidence, rather than comprising relevant evidentiary facts, was merely a way for Hudson improperly to bolster the credibility of its important, but absent witness Hanson. The basic rules regarding polygraph evidence were set forth by this circuit in Brown v. Darcy, 783 F.2d 1389 (9th Cir. 1986). Brown sharply criticized polygraph evidence as inherently unreliable and prejudicial, and held that the admission of unstipulated polygraph evidence is per se error. Id. at 1394-97. The Brown panel allowed one narrow exception to this per se rule: "When a polygraph examination is an operative fact evidence of the examination is admissible." Id. at 1397.

We assume, but need not hold, that admission of the polygraph evidence was error. Brown, 783 F.2d at 1397 n. 14; see deVries v. St. Paul Fire and Marine Ins. Co., 716 F.2d 939, 945 (1st Cir. 1983). The question at issue is whether the error requires reversal. Reversal is not required if "the jury's verdict is more probably than not untainted by the error." Brown, 783 F.2d at 1397 (quoting Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir. 1983)). In terms of time and emphasis, this evidence was a minor part of the trial, and was specifically limited to the good faith issue by the judge's instructions. Cf. Brown, 783 F.2d at 1397 (error not harmless when polygraph evidence comprised one-fourth of trial time and included expert testimony as to alleged accuracy of technique).

Substantial evidence supported the jury's conclusion that Ovitt had failed to show by the preponderance of the evidence that Hudson improperly denied his claim. Fire investigators determined that carefully placed accelerants had fueled the fire, which started in two separate corners of the hanger. Ovitt had serious financial difficulties. Hudson's counsel poked numerous holes in Ovitt's version of the facts. Other witnesses testified about their suspicious conversations with Ovitt. Even if the polygraph evidence improperly bolstered Hanson's credibility to some degree, there was no reasonable possibility that excluding it would have changed the verdict.

Ovitt argues that the court erred by refusing to allow rebuttal evidence on the accuracy of polygraphs. The judge acted correctly in not allowing more polygraph evidence. A battle of polygraph experts would only have further compounded the error of admitting the evidence by drawing more attention to it.

AFFIRMED.