Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1990)

Janet K. BOURNE; Daniel C. Bourne, Plaintiffs-Appellants,v.Victor ZAK, Defendant-Appellee.

No. 88-4084.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 1989.Decided Feb. 6, 1990.



After suffering injury in an automobile accident in Montana, Janet and Daniel Bourne brought a negligence action for personal injury and damages against the driver of the other car, Victor Zak, and his insurer, Safeco Insurance Company.1  Janet Bourne ("Janet") claimed damages for personal injury and emotional distress while her husband, Daniel Bourne ("Daniel"), claimed emotional distress and loss of consortium. The Bournes also sought punitive damages.

Liability was directed and injury was admitted. The only issues at trial pertained to the extent of damages. After deliberation, the jury filed a special verdict awarding $2,218.78 to Janet for her incurred medical expenses, but nothing to Daniel for his loss of consortium, and nothing to Janet for her past and future emotional distress, for her loss of future earning capacity, for the loss of value of her services, or for the loss of ability to pursue a normal course of life. The Bournes appeal, claiming (1) that the verdict is insufficient as a matter of law, (2) that the district court erroneously admitted certain expert testimony, (3) that one of the jury instructions was improper, and (4) that defense counsel committed reversible error in asking Zak when he first heard of the lawsuit. We affirm.

Our standard for reviewing a jury verdict is whether it is supported by "substantial evidence." Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1013-1014 (9th Cir. 1985), cert. denied, 474 U.S. 1059 (1986). A jury verdict may be reversed if it is "clearly erroneous," Marquis v. Chrysler Corp., 577 F.2d 624, 630 (9th Cir. 1978), although credibility of witnesses and weight of evidence are issues not subject to appellate review. Nicholson v. Rushen, 767 F.2d 1426 (9th Cir. 1985).

The Bournes claim that Janet incurred medical expenses of $20,232.00 and that the jury award of $2,218.78 has no basis in fact and is insufficient as a matter of law. However, there exists a clear factual dispute between the parties concerning the nature and severity of Janet's injuries resulting from the accident. It is apparent that the jury did not credit nor place much weight on the Bournes' evidence. We cannot say that the jury verdict is clearly erroneous.

The admissibility of expert testimony in a diversity case is a matter of federal law, governed by the Federal Rules of Evidence.2  C. Wright, Law of Federal Courts Sec. 93 (4th ed. 1976). "The trial court is vested with broad discretion concerning the admissibility or exclusion of expert testimony and the court's action is to be sustained unless shown to be manifestly erroneous," Reno-West Coast Distribution Co. v. Mead Corp., 613 F.2d 722, 726 (9th Cir.), cert. denied, 444 U.S. 927 (1979), and " [e]xpert testimony is admissible if the jury may receive 'appreciable help' from it." United States v. Solomon, 753 F.2d 1522, 1525 (9th Cir. 1985) (quoting United States v. Awkard, 597 F.2d 667, 669 (9th Cir.), cert. denied, 444 U.S. 885 & 969 (1979)). Furthermore, we review decisions regarding the relevancy of evidence for an abuse of discretion, United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 454 U.S. 830, 847 (1981), and likewise review the trial court's balancing of the probative value of evidence against its prejudicial harm under Fed.R.Evid. 403. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989).

On the basis of an experiment he conducted, Dr. Mark Jakobsen, a physicist, testified at trial that the forces involved in the car accident were so low enough that most people would not have been injured in this accident. The Bournes contend that admission of this testimony was improper. It is true that the experiment was only a simulation and some valid criticisms can be made concerning the substance of the expert testimony. Nevertheless, we do not think that the district court abused its discretion by not excluding the evidence as irrelevant under Fed.R.Evid. 401 and 402,3  or by not excluding the evidence as prejudicial or confusing for the jury under Fed.R.Evid. 403.4  Alternatively, as Zak points out, and as the Bournes do not dispute, the Bournes apparently did not make a timely objection to the testimony as required by Fed.R.Evid. 103(a) (1),5  and therefore this issue is not properly on appeal.

Although the content of jury instructions in diversity cases is a matter of state law, "the question whether an incorrect instruction is prejudically erroneous is a procedural one requiring application of federal law." Pollock v. Koehring Co., 540 F.2d 425, 426 (9th Cir. 1976). Jury instructions need not be perfect, but our task is determine "whether the jury was misled in any way and whether it had [an] understanding of the issues and its duty to determine those issues." VanCleef v. Aeroflex Corp., 657 F.2d 1094, 1099 (9th Cir. 1981) (quoting Houston v. Herring, 562 F.2d 347, 349 (5th Cir. 1977) (quoting Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1100 (5th Cir.), cert. denied, 419 U.S. 869 (1974))). We review a trial court's jury instructions as a whole, in the context of the entire case, to determine whether they are misleading or inadequate. Lewy v. Southern Pac. Transp. Co., 799 F.2d 1281, 1287 (9th Cir. 1986).

The Bournes contend that the district court erred in formulating its "future earning capacity" instruction. While this instruction may have been somewhat ambiguous in terms of how the award is to have been calculated, when we consider that the jury found no loss of future earning capacity, there was no reversible error.

Finally, the Bournes claim that Zak's attorney committed reversible error by asking Zak, " [w]hat was the first indication that you had that the accident ... had given rise to a lawsuit?" Zak replied that he did not find out until two years later. The Bournes argue that the purpose of this line of questioning was to suggest falsely that they "did nothing about her claim and that suit was filed as an afterthought some two years later."

This argument fails since there was no objection to the testimony nor a motion to strike, so the issue was not properly preserved for appeal. See Fed.R.Evid. 103(a) (1).



This deposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Safeco was granted a separate trial. The action against Safeco is stayed pending resolution of the instant appeal


According to Fed.R.Evid. 702, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise."


" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Fed.R.Evid. 401. "Evidence which is not relevant is not admissible." Fed.R.Evid. 402


Relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues...." Fed.R.Evid. 403


"Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... " [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context." Fed.R.Evid. 103(a) (1)