Amshey v. Moser , 26 F. App'x 369 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
REBEKAH ARLENE AMSHEY, 
Plaintiff-Appellant,
v.  No. 01-1050
JOSHUA S. MOSER,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-99-829-7)
Submitted: January 29, 2002
Decided: February 13, 2002
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John N. Dalton, Jr., DALTON & MOORE, P.C., Radford, Virginia,
for Appellant. Daniel J. Meador, Jr., MORIN & BARKLEY, Char-
lottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MOSER
OPINION
PER CURIAM:
Rebekah Arlene Amshey appeals the district court judgment in
accordance with a jury special verdict awarding her $380 in this
diversity suit arising from injuries Amshey sustained in a motor vehi-
cle accident. Amshey argues the district court erred in excluding her
expert and prohibiting her from testifying to certain medical expenses.
Finding no reversible error, we affirm.
During pre-trial proceedings, Amshey designated Dr. Alben G.
Goldstein as her expert witness under Fed. R. Civ. P. 26(a)(2). Moser
filed two motions in limine seeking to exclude Dr. Goldstein’s testi-
mony on discovery and evidentiary grounds. On the morning of trial,
the district court found the motions as to Dr. Goldstein moot because
Amshey had declined to arrange for Dr. Goldstein to be present.
A court’s decision regarding the admission of evidence is reviewed
for abuse of discretion. See Benedi v. McNeil-P.P.C., Inc., 66 F.3d
1378, 1383 (4th Cir. 1995); Persinger v. Norfolk & W. Ry., 920 F.2d
1185, 1187 (4th Cir. 1990). We find the district court did not abuse
its discretion as Amshey’s failure to present her witness at trial fore-
closed the issue.*
Amshey additionally argues the district court erred by excluding
her testimony regarding medical treatment during and after April
1997. Because Amshey did not lay a proper foundation for this testi-
mony, the district court did not abuse its discretion in excluding it.
*Amshey contends she chose not to incur the expense of calling the
expert witness at trial because, after a pretrial motions hearing, a differ-
ent district judge indicated his inclination to exclude the expert. The par-
ties agree that there was no formal ruling to this effect. Absent such
ruling, the trial judge acted within his discretion in concluding that
Amshey’s failure to call the witness foreclosed consideration of the
admissibility of his testimony. Moreover, Amshey’s regret of her strate-
gic decision not to call the witness is no basis to disturb the trial court’s
ruling.
UNITED STATES v. MOSER 3
Accordingly, we affirm the district court’s ruling based upon the
jury’s special verdict. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED