Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1986)

MEMORANDUM^** 

The plaintiff brought this diversity action to recover the cost of repairs for an aircraft under the theories of breach of warranty and fraud. The district court entered judgment for the defendant following a jury trial. The plaintiff now appeals contending that the district judge improperly excluded the testimony of a Federal Aviation Administration ("FAA") investigator concerning violations of Federal Aviation Regulations ("FAR") by the defendant's employee.

FACTS

Plaintiff R & L Distributors ("R & L") purchased a used aircraft from defendant Ruel Teague in August 1985. The aircraft was 12 years old at the time of the sale and was sold on an "as is" basis. Teague's mechanic, Robert Seablom, had certified the aircraft as airworthy in an inspection performed on July 16, 1985. Two months after the sale, an R & L employee discovered that the airplane had a substantial fuel leak. R & L had the aircraft inspected by two mechanics who discovered a number of defects in the aircraft's fuel system.

R & L filed a complaint with the FAA in Casper, Wyoming. Scott Hutchinson, an FAA inspector, was assigned to investigate the complaint. Hutchinson observed that the date plate on the aircraft's engine contained alterations and that there were discrepancies between the part numbers on the fuel system and the proper part numbers for the make and model of the aircraft. Hutchinson inspected the aircraft's log book and determined that Seablom had performed an improper conversion on the aircraft's engine. Upon further investigation into FAA records, Hutchinson discovered that the FAA had previously suspended Seablom's inspection authorization for improperly performing inspections on the subject aircraft.

On May 21, 1986, R & L filed a complaint in the United States District Court for the District of Oregon charging Teague with breach of express warranties and fraud arising from the sale of the aircraft. Prior to the commencement of trial, Teague filed a motion in limine seeking to exclude (1) evidence of Seablom's prior FAR violations involving the subject aircraft and (2) evidence of, or reference to, the opinions or conclusions of FAA Inspector Hutchinson. The district court granted Teague's motion on the ground that the evidence was more prejudicial than probative.

At trial, both parties presented evidence concerning the airworthiness of the aircraft at the point of sale. Teague presented expert testimony which contradicted the testimony of the two mechanics who inspected the aircraft for R & L. Teague testified that his mechanic, Seablom, was extremely competent and that he had full faith in the airworthiness of the aircraft based upon Seablom's certification.

After Teague testified to Seablom's competency, R & L requested that the court reconsider its ruling on the motion in limine. R & L claimed that since Teague raised the issue of Seablom's character and reputation, they should be permitted to elicit Hutchinson's testimony concerning Seablom's prior FAR violations. The court denied R & L's request, but did allow R & L to cross-examine Teague on the issue of his knowledge of Seablom's FAR violations.

R & L questioned Teague about his knowledge of Seablom's FAR violations. Teague responded that he was aware that the FAA had filed a complaint against Seablom, but he nevertheless had faith in Seablom's abilities. The jury found for Teague on both the breach of express warranty and fraud claims. R & L now appeals claiming that the district court improperly excluded Hutchinson's testimony.

DISCUSSION

R & L challenges both the district court's exclusion of evidence pertaining to Seablom's FAR violations and its exclusion of Hutchinson's opinion testimony concerning the airworthiness of the subject aircraft. We review evidentiary rulings for an abuse of discretion and will reverse only if prejudice has been demonstrated. Kisor v. Johns-Manville, 783 F.2d 1337 (9th Cir. 1986).

R & L sought to introduce evidence of Seablom's prior FAR violations for the following purposes: (1) to prove that Seablom improperly certified the aircraft as airworthy in July 1985; (2) to impeach Seablom's credibility; and (3) to prove that Teague knew or should have known that Seablom's July 1985 inspection and certification were invalid.

R & L is precluded from introducing evidence of Seablom's prior FAR violations to prove that he improperly inspected and certified the aircraft in July 1985. Federal Rule of Evidence 404(b) prohibits evidence of other crimes, wrongs or acts to prove the character of a person in order to show conformity therewith. R & L's attempt to introduce evidence of earlier FAR violations to show that Seablom failed to properly inspect the aircraft in 1985 falls squarely within the prohibition of Fed.R.Evid. 404(b).¹ 

R & L also sought to introduce evidence of Seablom's prior violations to impeach Seablom. R & L argues that, because Seablom's prior violations involved false certifications, the evidence affects Seablom's character for truthfulness and is properly admissible under Federal Rule of Evidence 608(b) (2). R & L misreads Fed.R.Evid. 608. Fed.R.Evid. 608(b) forbids the use of extrinsic evidence to attack the credibility of a witness. The second sentence of 608(b) is not an exception to the bar against extrinsic evidence. Rather, it only allows inquiry into specific instances of conduct upon cross-examination if they are probative of truthfulness or untruthfulness. Therefore, even if Seablom's prior violations are probative of his character for untruthfulness, R & L is not entitled to prove these violations through extrinsic evidence. The district court did allow R & L to inquire into Seablom's violations during its cross-examination of Teague. Under Fed.R.Evid. 608(b), R & L is entitled to no more.

R & L's final stated purpose for introducing evidence of Seablom's prior violations was to prove that Teague should have known that Seablom's July 1985 certification of airworthiness was invalid. Although Teague's knowledge of any falsehood within Seablom's representations is material to the fraud cause of action, the district court did not allow Hutchinson to testify to Seablom's prior violations. The court pointed out that Hutchinson had no personal knowledge of whether Teague was aware that Seablom had been charged by the FAA. Fearing that Hutchinson's testimony would be highly prejudicial and not very probative, the court did not allow Hutchinson to testify, but instead permitted R & L to cross-examine Teague on the issue of his knowledge of Seablom's FAR violations. Although the court could have allowed Hutchinson to testify and given an appropriate limiting instruction, it did not abuse its discretion in excluding Hutchinson's testimony.

B. Hutchinson's Testimony Concerning Airworthiness

R & L contends that the district court erroneously excluded Inspector Hutchinson's testimony concerning his inspection of the subject aircraft. R & L argues that Hutchinson's testimony would have consisted merely of factual observations made in the course of his inspection. The district court found that Hutchinson's testimony was not purely factual; instead, it determined that his testimony amounted to a conclusion that "this plane could not ... pass an FAA inspection." The court noted that although 49 C.F.R. Sec. 9.11 prohibits Department of Transportation ("DOT") employees from furnishing opinion testimony in a proceeding between private parties, 49 C.F.R. Sec. 9.13 permits a court to order a DOT witness to give opinion testimony. The court refused to allow this testimony, however, due to its great prejudicial impact. In addition, the court concluded that the evidence would be of slight probative value because it was nearly identical to testimony provided by two other expert witnesses.

Based upon Hutchinson's proposed witness statement (ER Tab B, p. 22-23), the district court correctly concluded that Hutchinson's testimony was, in effect, an opinion that the aircraft could not have passed an FAA inspection at the time of sale. While 49 C.F.R. Sec. 9.13 does permit a court to order a DOT employee to provide expert or opinion testimony, 49 C.F.R. Sec. 9.7 sets forth the policy reasons for avoiding such testimony:

(a) To conserve the time of employees for conducting official business.

(b) To minimize the possibility of involving the Department in controversial issues that are not related to its mission.

(c) To prevent the possibility that the public will misconstrue variances between the personal opinions of employees and department policy.

(d) To avoid spending the time and money of the United States for private purposes.

The district court's decision to exclude Hutchinson's testimony must be viewed in light of the policy statements expressed in 49 CFR Sec. 9.7 as well as on the court's determination that the evidence was more prejudicial than probative. The district court determined that Hutchinson's testimony would be prejudicial because it bore the "aura of the FAA." While the testimony is "prejudicial" in the sense that it is damaging to Teague's defense, it does not seem unduly prejudicial. The testimony of an independent government investigator is more reliable than that of a mechanic hired by one of the litigants and, accordingly, should be given more weight.

Although Hutchinson's testimony would not have been overly prejudicial, we do not conclude that its exclusion constituted an abuse of discretion. The district court recognized that the probative value of Hutchinson's testimony was diminished because it largely duplicated the testimony of R & L's other expert witnesses. By excluding Hutchinson's testimony and permitting R & L's other experts to testify, the district court allowed R & L to introduce evidence concerning the condition of the aircraft without offending the DOT's policy against involvement in private litigation as expressed in 49 CFR Sec. 9.7.

AFFIRMED.