Unpublished Disposition, 940 F.2d 670 (9th Cir. 1984)

MEMORANDUM^** 

Plaintiff Gunnar Weiland appeals pro se from a jury verdict in the defendants' favor. He asserts bias on the part of the trial judge and various errors in juror selection, the admission and exclusion of evidence, and jury instructions. He also asserts that the district court erred in denying his motion to reopen the case to allow him to testify. Defendants Allied Corporation and Bendix Corporation ("Allied-Bendix") request that Weiland's appeal be dismissed for failure to comply with Fed. R. App. P. 28 and that defendants be awarded costs. We decline to dismiss the appeal on procedural grounds or to award costs to defendants. However, we deny Weiland's appeal on the merits and affirm the jury verdict.

BACKGROUND

This case arises from a car accident which occurred on December 16, 1984, in which Weiland was injured. Weiland's 1975 Ford Mustang collided with a 1975 Ford LTD driven by Columbus Lester. Lester apparently entered the highway from the shoulder and performed a U-turn in front of Weiland, who was unable to stop or swerve to avoid collision. Weiland settled claims with both Lester and the Ford Motor Company.

Weiland then brought the present action against Allied-Bendix, the designers and manufacturers of the seatbelt in his car, alleging that due to defects in design or manufacture, the shoulder harness portion of his seatbelt tore in half on impact, exacerbating the injuries he sustained in the accident. Allied-Bendix denied any defects in the design or manufacture of the seatbelt, contested the assertion that it ruptured on impact, and asserted that Weiland was contributorily negligent because his car was travelling in excess of the speed limit at the time of the accident.

Weiland represented himself at trial, which lasted four days, including both jury selection and deliberation. The jury reached a unanimous verdict in favor of Allied-Bendix. Weiland now asserts a whole host of procedural and evidentiary errors on the part of the trial court, almost none of which he properly objected to in the court below.

DISCUSSION

A. Judicial bias.

Weiland alleges that the district court "exercised unreasonable prejudice toward the pro-per appellant in failing to protect the appellant's rights." Weiland raises this claim of judicial bias for the first time on appeal. He has shown neither good cause why he did not file a timely affidavit requesting the trial judge to recuse himself under 28 U.S.C. § 144, nor exceptional circumstances why we should consider the question for the first time on appeal. Weiss v. Sheet Metal Wkrs. Local No. 544 Pension Tr., 719 F.2d 302, 304 (9th Cir. 1983) (per curiam), cert. denied, 466 U.S. 972 (1984).

Even were we to reach the merits, Weiland has not shown that it was plain error for the trial judge not to disqualify himself, which is the the relevant test where a party claims judicial bias for the first time on appeal. Id. Judicial bias must arise from extrajudicial sources. In re Corey, 892 F.2d 829, 839 (9th Cir. 1989), cert. denied, 111 S. Ct. 56, 112 L. Ed. 2d 31 (1990), citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). A judge's rulings while presiding over a case do not constitute extrajudicial conduct. See id. at 838-39. Weiland fails to offer any factual circumstances in support of his allegation of judicial bias, and certainly has not demonstrated an extrajudicial source of bias. Moreover, our reading of the record suggests, contrary to Weiland's assertions, that the district court judge gave considerable leeway to Weiland as a pro se litigant and, within the permissible bounds of his judicial role, attempted to facilitate Weiland's pro se representation. While we sympathize with the frustration Weiland experienced representing himself in a case with relatively complex evidentiary issues, what he claims to be bias is nothing more than the district court's correct application of the Federal Rules of Evidence. Accordingly, we reject Weiland's claim of judicial bias.

We likewise reject Weiland's conclusory claims that the trial judge conducted the trial in conflict with the local rules and with the final pretrial order which was entered by a different judge. Weiland articulates no factual basis for these allegations and our review of the record demonstrates none.

B. Juror selection.

Weiland alleges that the court improperly allowed a seat belt installer to serve on the jury. Weiland failed to object to the inclusion of the juror prior to empanelment or at trial, and raises this objection for the first time on appeal. Where a party has an the opportunity to challenge the selection of a juror, and the basis for the objection is or might have been known or discovered through the exercise of reasonable diligence, failure to object at the time the jury is empaneled operates as a conclusive waiver. Frazier v. United States, 335 U.S. 497, 513 (1948). Weiland's allegation that the court denied him an opportunity to object to the seating of jurors is without basis. He may have misunderstood the judge's explanation of the jury selection process, but that is not a sufficient basis for excusing his waiver. In any event, the fact that a juror worked installing seatbelts does not conclusively demonstrate any bias in favor of the defendants. We reject Weiland's claim that the court erred in allowing a seatbelt installer to act as a juror.

C. Challenges to evidentiary rulings.

Weiland asserts that the trial court erred in allowing Allied-Bendix's expert to testify as to "fictitiously high speed"; allowing the expert to testify as to speed at all because of failure to disclose the contents of his testimony in answers to interrogatories; refusing to allow Weiland to testify as to his future income because he was not a qualified expert; denying Weiland the opportunity to offer rebuttal expert testimony; and excluding some of Weiland's exhibits.

Evidentiary rulings normally are reviewed for an abuse of discretion and will not be reversed absent a showing of some prejudice. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir. 1988) (citing Kisor v. Johns-Manville Corp., 783 F.2d 11337, 1340 (9th Cir. 1986). A trial court has broad discretion in admitting and excluding expert testimony and its decision will be sustained unless it is "manifestly erroneous." Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309, 1315 (9th Cir. 1986).

The trial court did not abuse its discretion in the challenged rulings admitting or excluding evidence. Weiland's objection to Allied-Bendix's expert testimony as to speed is no more than disagreement with the substance of the testimony. The record shows that the expert offered testimony in conformance with Fed.R.Evid. 702 and the four-prong analysis of expert testimony applied in this circuit. See United States v. Christophe, 833 F.2d 1296, 1299 (9th Cir. 1987). Weiland's contentions regarding Allied-Bendix's failure to disclose the content of the testimony are likewise without merit. The trial court noted that a magistrate had heard and ruled on Weiland's motion to compel further answers to interrogatories and found the answers to be sufficient. Nevertheless, the trial court ordered the defendants to make the expert witness available to Weiland for an hour in advance of his testimony.

We need not pass on the correctness of the trial court's ruling that expert testimony was required as to Weiland's future income, and that Weiland did not qualify as an expert on that issue. Since Weiland's proffered testimony related only to the amount of damages, and the jury found no liability, the exclusion of the testimony, even were it erroneous, was harmless.

Weiland cites nothing in the record to indicate that he sought to introduce expert rebuttal testimony and was refused by the court. To the contrary, the record indicates that the court clearly asked him if he had rebuttal evidence, witnesses or documents, and Weiland indicated that he did not.

Finally, Weiland asserts that the district court erred in excluding a number of his exhibits and that, in doing so, the court erroneously deferred to defendants' counsel's view of the law and the facts. What Weiland complains of is nothing more than the routine process of enforcing the rules of evidence by soliciting the objections of the opposing party to exhibits for which no proper foundation has been laid during the course of the case.

Weiland's claims regarding the improper admission and exclusion of evidence are without merit.

D. Jury instructions.

Weiland alleges that the trial court erred in charging the jury on negligence, products liability and punitive damages. At trial, however, he objected to only to the two instructions on comparative negligence. Weiland is precluded from challenging the substance of the three instructions, even if "plain error" were present, because he made no objections to the instructions at trial. Herrington v. Sonoma County, 834 F.2d 1488, 1500 n. 12 (9th Cir. 1987); Moore v. Telfon Communications Corp., 589 F.2d 959, 966 (9th Cir. 1978).

E. Denial of motion to reopen.

A motion to reopen or to supplement the trial record is reviewed for an abuse of discretion. SEC v. Rogers, 790 F.2d 1450, 1455 (9th Cir. 1986). "A district court should take into account ... the character of the additional testimony and the effect of granting the motion. The court should also consider the diligence of the moving party, and any possible prejudice to the other party." Id. at 1460 (citations omitted). After the close of evidence, Mr. Weiland sought to reopen the case to allow for his own testimony on the speed of the car. However, he proffered nothing more specific about the testimony he would offer than that he had "very important information about a 45 mile-an-hour crash [and] ... very important information about the time duration." He failed to indicate what sort of information he possessed or why he had failed to introduce it earlier or to mention it when given the opportunity for rebuttal. Under the circumstances, the trial court did not abuse its discretion in denying the motion to reopen.

F. Court's failure to set aside the verdict.

Finally, Weiland asserts that the court erred by not using its discretion to set aside the jury verdict based upon insufficiency of the evidence. Weiland, however, filed no motion for a judgment notwithstanding the verdict; nor had he filed a motion for a directed verdict at the close of evidence. The court did not err by failing sua sponte to overturn the jury's verdict, which is amply supported by the evidence in the record.

AFFIRMED.