Valdespino v. Alamo Heights I S D ( 1999 )


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  •                       REVISED APRIL 1, 1999
    
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT
    
                         _______________________
    
                               No. 98-50227
                         _______________________
    
    
                    ROBERT VALDESPINO; BRENDA ROLON,
    
                                                  Plaintiffs-Appellants,
    
                                     v.
    
      ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT; ETHYL WAYNE, In her
       official capacity as a member of the Board of Trustees of the
      Alamo Heights Independent School District, San Antonio, Texas;
     HARRY OREM, In his official capacity as a member of the Board of
      Trustees of the Alamo Heights Independent School District, San
    Antonio, Texas; STEPHEN P. ALLISON, In his official capacity as a
     member of the Board of Trustees of the Alamo Heights Independent
        School District, San Antonio, Texas; ANNE BALLANTYNE, In her
       official capacity as a member of the Board of Trustees of the
      Alamo Heights Independent School District, San Antonio, Texas;
      THOMAS A. KINGMAN, In his official capacity as a member of the
         Board of Trustees of the Alamo Heights Independent School
      District, San Antonio, Texas; TERRI MUSSELMAN, In her official
         capacity as a member of the Board of Trustees of the Alamo
      Heights Independent School District, San Antonio, Texas; VICKI
       SUMMERS, In her official capacity as a member of the Board of
      Trustees of the Alamo Heights Independent School District, San
                               Antonio, Texas,
    
                                                   Defendants-Appellees.
    
    
    
    
              Appeal from the United States District Court
                    for the Western District of Texas
    
    
                              March 11, 1999
    Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
    
    EDITH H. JONES, Circuit Judge:
                The panel hereby withdraws its previous opinion and
    
    substitutes the following:
    
                Plaintiffs-Appellants claim that the at-large, by-place,
    
    majority-vote     elections    for   positions     on   the    AHISD    board    of
    
    trustees dilute their votes as Hispanics in violation of Section 2
    
    of the Voting Rights Act of 1965.           See 42 U.S.C. § 1973 (1994) (as
    
    amended).     The district court found that the Plaintiffs failed to
    
    make out a vote dilution claim because they could not prove, under
    
    the   first    Gingles     threshold    factor,    that      Hispanics     are     a
    
    “sufficiently     large     and   geographically        compact       [group]     to
    
    constitute a majority in a single-member district.”               Thornburg v.
    
    Gingles, 
    478 U.S. 30
    , 50, 
    106 S. Ct. 2752
    , 2766 (1986).                   All the
    
    issues on appeal involve proof of the first Gingles factor.                       In
    
    particular, we reject the appellants’ contention that a “majority”
    
    may be less than 50% of the citizen voting-age population.                        As
    
    appellants’ other contentions fare no better, the judgment is
    
    affirmed.
    
                                           I.
    
                The   School     District       conceded    at    trial     that     the
    
    Plaintiffs’ demonstration district1 did comprise a majority of
    
    Hispanic voting-age citizens according to 1990 census data.                      The
    
    
          1
           The “demonstration district” is the hypothetical single-
    member district used by voting rights plaintiffs to demonstrate
    that they can satisfy the first Gingles factor (i.e., that their
    group could constitute a majority in a single-member district).
    Because the AHISD Board of Trustees has seven members, the
    Plaintiffs must propose a demonstration district that would be
    appropriate if the at-large district were divided into seven
    single-member districts.
    
                                            2
    School District,        however,    presented     evidence     that   demographic
    
    changes between the 1990 census and the 1997 trial had eliminated
    
    that majority.    AHISD is a small district in which a few strategic
    
    land-use changes could and did significantly alter the district’s
    
    population and neighborhood ethnic mix.
    
                 The School District’s evidence was presented in expert
    
    testimony by Dr. Bill Rives, a demographer.               Using the 1990 census
    
    data as a baseline, Rives investigated post-1990 changes in the
    
    school district’s housing stock to determine how the population had
    
    changed in the Plaintiffs’ demonstration district and in the school
    
    district at large.       He testified that this methodology is “by far
    
    the   most    popular     demographic        estimation    technique”      and   is
    
    especially appropriate for small areas.
    
                 Rives testified that two main trends combined to leave
    
    the    Plaintiffs’         demonstration           single-member           district
    
    “underpopulated” in 1997.          Since 1990, the demonstration district
    
    had lost     population    (and    the   proportion       of   Hispanics    in   the
    
    demonstration district declined) because a large apartment complex
    
    had closed, been renovated, and reopened with a smaller number of
    
    residents.    Simultaneously, the population of the school district
    
    at large had increased because of substantial new residential
    
    development in the Lincoln Heights area (formerly a quarry and
    
    cement plant), outside the demonstration district.                As a result of
    
    these changes, the Plaintiffs’ demonstration district no longer
    
    approached one-seventh of the school district’s population, and
    
    thus could not be a proper single-member district.
    
                                             3
                To correct for the underpopulation, Rives added territory
    
    to the demonstration district.    He added a contiguous area to the
    
    north that had been included in some of the appellants’ prior
    
    proposed demonstration districts.     That northern area ran clear to
    
    the edge of the school district and had just about the right number
    
    of people to make a proper district.     Furthermore, if it were not
    
    added to the Plaintiffs’ district, the northern area would have to
    
    be attached to a different district via a mile-long, narrow strip
    
    of unpopulated land.     After the northern area was added to the
    
    demonstration district population, Hispanics made up only 47.9% of
    
    the voting-age citizen population of the revised demonstration
    
    district.    Even if the demonstration district were then partially
    
    depopulated (by 8.1% of the ideal population), this number would be
    
    48.3%.
    
                The general thrust of Rives’s testimony had been clear
    
    for some time before trial.       For example, in a November 1996
    
    affidavit attached to the Defendants’ Response to Plaintiffs’
    
    Motion for Partial Summary Judgment, Rives had explained that no
    
    additions to the Plaintiffs’ proposed demonstration district could
    
    sufficiently increase the Hispanic population because “[t]here are
    
    no Hispanic-majority blocks that are adjacent to the proposed
    
    district.”    As the trial grew nearer, Rives updated his analysis,
    
    redoing calculations based on more recent data from the apartment
    
    complexes about the ethnicity of their residents.    Ultimately, the
    
    district court relied on Rives’s April 1997 Report.
    
    
    
                                      4
                  Much of the controversy in the case comes from Rives’s
    
    August 1997 Report.        In July 1997, updated rental rolls became
    
    available from The Reserve, the large apartment complex within the
    
    Plaintiffs’ demonstration district that had been renovated and
    
    reopened since the 1990 census.              Rives then recalculated the
    
    results in his April 1997 report after learning that The Reserve
    
    had a slightly higher proportion of Hispanic residents than he had
    
    earlier believed. But he also corrected a calculation error in his
    
    April Report that had understated population growth in the school
    
    district at large.        Nevertheless, he concluded that the revised
    
    data still did not yield a majority of Hispanics among voting-age
    
    citizens within the Plaintiffs’ demonstration district. The August
    
    Report was given to the Plaintiffs in early August 1997, not long
    
    before the original trial setting.             On August 22, however, the
    
    district court reset the trial for Monday, September 15.
    
                  The Plaintiffs’ proffered expert witness, George Korbel,
    
    claims that he was surprised by the conclusions in Rives’s August
    
    Report.       In   response,   Korbel    scrambled     the   week   before   the
    
    September trial date to conduct a door-to-door survey of the
    
    residents in a small area to the south of the demonstration
    
    district.      He thought he could find there a high proportion of
    
    Hispanic      residents   that   could      increase    their   demonstration
    
    district’s population without diluting its Hispanic majority.                 At
    
    4:21   P.M.   on Friday, September 12, the Plaintiffs faxed to the
    
    School District’s counsel a letter disclosing the existence of this
    
    
    
                                            5
    new survey.      At 4:13 P.M. on Saturday, September 13, the Plaintiffs
    
    faxed the data from the survey.
    
                   On the Monday morning set for trial, September 15, the
    
    School District filed a motion to strike the survey on grounds of
    
    unfair surprise.           The Plaintiffs’ lawyer told the district court
    
    that their case in chief would rest entirely on 1990 census data,
    
    but that if Rives testified for the School District that more
    
    current data changed the Hispanic majority, then the Plaintiffs
    
    might use the recent survey as rebuttal testimony.                   The district
    
    court postponed until rebuttal any ruling on the motion to strike
    
    and granted a motion in limine to prevent mention of the survey
    
    during    the    case      in   chief   or   cross-examination.          During   the
    
    Plaintiffs’ rebuttal, the School District renewed its objections to
    
    the survey evidence, and the district court granted the motion to
    
    strike.    The Plaintiffs filed an offer of proof as to what their
    
    expert witness would have testified about the survey.
    
                   In its findings of fact and conclusions of law, the
    
    district court reiterated that Korbel’s survey constituted unfair
    
    surprise       and   was    excluded      under     Local   Rule   CV-16(e).       To
    
    accommodate the Plaintiffs’ objections to the lateness of Rives’s
    
    August Report, the district court decided to rely solely upon the
    
    April Report, which it found to be “thoroughly documented, [with]
    
    a high degree of accuracy,” and “clear, cogent, and convincing
    
    enough    to    override        the   presumptive    correctness    of    the   prior
    
    decennial census.”          Relying on Rives’s report, the district court
    
    found that the Plaintiffs had not proved a demonstration district
    
                                                 6
    with less than 10% population deviation that included more than 50%
    
    Hispanics among its voting-age citizens.
    
               On appeal, the Plaintiffs present three arguments: that
    
    they were not required to meet a “bright line” test of 50% Hispanic
    
    voting-age citizens in their demonstration district; that the
    
    School District’s evidence did not adequately overcome the presumed
    
    accuracy of the 1990 census data; and that the district court
    
    abused its discretion in excluding Korbel’s proposed rebuttal
    
    testimony about the last-minute, door-to-door survey.
    
                                         II.
    
               This    court   reviews   district     court   “findings   on   the
    
    Gingles threshold requirements for clear error.”           League of United
    
    Latin Am. Citizens v. Roscoe Indep. Sch. Dist., 
    123 F.3d 843
    , 847
    
    (5th Cir. 1997).     See also Gingles, 478 U.S. at 77-79, 106 S. Ct.
    
    at 2780-81.       A district court’s refusal to allow an expert to
    
    testify as a rebuttal witness may be overturned only for abuse of
    
    discretion.   See Tramonte v. Fibreboard Corp., 
    947 F.2d 762
    , 764
    
    (5th Cir. 1991); Bradley v. United States, 
    866 F.2d 120
    , 124 (5th
    
    Cir. 1989).
    
                                         III.
    
               The Supreme Court has established a three-part threshold
    
    inquiry when a racial or ethnic minority group asserts that its
    
    distinctive votes have been submerged by the racial majority in a
    
    multimember legislative district.           The minority group must be able
    
    to   (1)   “demonstrate      that    it     is   sufficiently   large      and
    
    geographically compact to constitute a majority in a single-member
    
                                          7
    district,” (2) “show that it is politically cohesive,” and (3)
    
    “demonstrate that the white majority votes sufficiently as a bloc
    
    to enable it -- in the absence of special circumstances ... --
    
    usually to defeat the minority’s preferred candidate.”           Gingles,
    
    478 U.S. at 50-51, 106 S.Ct. at 2766-67.
    
                The Plaintiffs here argue that the district court erred
    
    in   applying   the   first   Gingles   factor   as   a    “bright   line”
    
    requirement.    The Plaintiffs advert to the general purpose of the
    
    Gingles factors, which is to provide a framework for showing that
    
    there could be “a single-member district in which they could elect
    
    candidates of their choice.”       This is intended to support the
    
    proposition that the Plaintiffs need only show generally their
    
    electoral potential. The Plaintiffs further argue that the Supreme
    
    Court has disavowed “mechanical[]” application of the Gingles
    
    factors.2    And they complain that the district court did not
    
    evaluate evidence of vote dilution under the totality of the
    
    circumstances test.
    
                All of these complaints are baseless.         In reality, this
    
    court has interpreted the Gingles factors as a bright line test.
    
    Each factor must be proved before it is necessary to proceed to the
    
    
         2
           In Voinovich v. Quilter, the Supreme Court did say, “the
    Gingles factors cannot be applied mechanically and without regard
    to the nature of the claim.” 
    507 U.S. 146
    , 158, 
    113 S. Ct. 1149
    ,
    1157 (1993). The Court did so, however, because it was adapting
    the Gingles test, which was designed for challenges to multimember
    districts, so that it could be used for challenges to the packing
    of minority voters into existing single-member districts. Because
    that changed context is not relevant to this case, which challenges
    a multimember district, plaintiffs have no need to invoke non-
    mechanical application of the Gingles factors.
    
                                       8
    totality of the circumstances test. We have repeatedly disposed of
    
    vote dilution cases on the principle that “[f]ailure to establish
    
    any one of these threshold requirements is fatal.”   Campos v. City
    
    of Houston, 
    113 F.3d 544
    , 547 (5th Cir. 1997); accord Rangel v.
    
    Morales, 
    8 F.3d 242
    , 249 (5th Cir. 1993); Overton v. City of
    
    Austin, 
    871 F.2d 529
    , 538 (5th Cir. 1989).       See also Growe v.
    
    Emison, 
    507 U.S. 25
    , 40-41, 
    113 S. Ct. 1075
    , 1084 (1993) (“Unless
    
    [the three Gingles factors] are established, there neither has been
    
    a wrong nor can be a remedy.”).
    
               Furthermore, contrary to the Plaintiffs’ suggestion, this
    
    court has required vote dilution claimants to prove that their
    
    minority group exceeds 50% of the relevant population in the
    
    demonstration district.    In Gingles, the Supreme Court required
    
    plaintiffs to demonstrate “a majority.”   478 U.S. at 50, 106 S. Ct.
    
    at 2766.   Both of the Fifth Circuit cases cited by the Plaintiffs
    
    assumed that 50% was the threshold for “majority” and simply
    
    addressed what evidence could be used to prove that the 50%
    
    threshold was met.   In Brewer v. Ham, the court acknowledged that
    
    a super-majority of black residents could be used to prove that
    
    blacks constituted a majority of voting-age residents.      See 
    876 F.2d 448
    , 452 (5th Cir. 1989) (citing cases with raw super-
    
    majorities of 65.9%, 71.5%, and higher).      In Westwego II, this
    
    court repeated Brewer’s holding and expanded on it in a footnote.
    
    The footnote, much cited by the Plaintiffs, explained that those
    
    plaintiffs “unable to produce hard data” on voting-age population
    
    because of the way census data are collected and reported would be
    
                                      9
    able to submit “other probative evidence” to prove voting-age
    
    population.    See Westwego Citizens for Better Gov’t v. City of
    
    Westwego, 
    906 F.2d 1042
    , 1045 n.3 (5th Cir. 1990).      In context,
    
    Westwego II’s statements did not alter what must be proved, only
    
    what can be used to prove it.   The Plaintiffs still must meet their
    
    burden of proving that Hispanics constitute more than 50% of the
    
    relevant population in their demonstration district.
    
              Finally, this court has already determined what factors
    
    limit the relevant population in the district: voting-age and
    
    citizenship.   This was made clear in Campos v. City of Houston, 
    113 F.3d 544
    , 548 (5th Cir. 1997) (courts “must consider the citizen
    
    voting-age population” in evaluating the first Gingles factor).
    
    See also Perez v. Pasadena Indep. Sch. Dist., 
    165 F.3d 368
    , 372
    
    (5th Cir. 1999).    Given that the Supreme Court has avoided the
    
    issue of what population to use for the first Gingles factor,3 and
    
    that other circuits have used the same approach as Campos,4 the
    
    district court used the correct legal test here.
    
    
    
    
         3
           See Johnson v. De Grandy, 
    512 U.S. 997
    , 1008-09, 
    114 S. Ct. 2647
    , 2656-57 (1994); Growe v. Emison, 
    507 U.S. 25
    , 38 n.4, 113 S.
    Ct. 1075, 1083 n.4 (1993).
         4
           See Negron v. City of Miami Beach, 
    113 F.3d 1563
     (11th Cir.
    1997) (using citizen voting-age population for first Gingles
    factor); Romero v. City of Pomona, 
    883 F.2d 1418
     (9th Cir. 1989)
    (same), overruled in part on other grounds by Townshend v. Holman
    Consulting Corp., 
    914 F.2d 1136
    , 1141 (9th Cir. 1990). Cf. Barnett
    v. City of Chicago, 
    141 F.3d 699
    , 704 (7th Cir. 1998) (Posner,
    C.J.)   (using   citizen   voting-age   population   to  determine
    proportionality for Section 2 challenge to gerrymandering of
    single-member districts), cert. denied sub nom. Bialczak v.
    Barnett, 
    118 S. Ct. 2372
     (1998).
    
                                     10
                                         IV.
    
              In this case, evaluating the district court’s application
    
    of that test involves two questions: whether the School Board’s
    
    evidence was adequate to counter the Plaintiffs’ census data, and
    
    whether the district court abused its discretion in excluding the
    
    Plaintiffs’ proposed rebuttal evidence.
    
    
    
    
                                         A.
    
              Except for a cavil, the parties and the district court
    
    essentially   agree   about   what   standard   should   be   required   to
    
    overcome census data.5    As the district court summarized it:
    
         [C]ensus figures are presumed accurate until proven
         otherwise. Proof of changed figures must be thoroughly
         documented, have a high degree of accuracy, and be clear,
    
         5
           The cavil is that Plaintiffs attempt to articulate a two-
    step test: “The decennial census is controlling unless there exists
    ‘clear, cogent and convincing evidence’ that the decennial figures
    are no longer valid and that other figures are valid.” For this
    proposition, however, they cite only Garza v. County of Los
    Angeles, 
    756 F. Supp. 1298
    , 1345 (C.D. Cal. 1990). In fact, the
    Garza court specifically rejected the notion of a two-step test:
              17. In order to overcome the presumption in favor of
         the 1980 census data, plaintiffs need not demonstrate
         that the census was inaccurate.
              18. It is sufficient to conclude that there has been
         significant demographic changes [sic] since the decennial
         census and that there exist[] post-decennial population
         data that more accurately reflect[] evidence of the
         current demographic conditions.
    Id.
    
                                         11
         cogent and convincing to override the                presumptive
         correctness of the prior decennial census.
    
    This standard appears to be an elaboration on one used by the
    
    Seventh Circuit.       See McNeil v. Springfield Park Dist., 
    851 F.2d 937
    , 946 (7th Cir. 1988).        Two Fifth Circuit cases are relevant.6
    
    The first is Westwego II, which, as mentioned above, opened the
    
    door to the use of non-census data when census data are not
    
    sufficiently     probative    of    the    voting-age    proportion      of   a
    
    population.    See Westwego, 906 F.2d at 1045 n. 3.           The second is
    
    Perez, in which this court affirmed a district court’s decision
    
    that the plaintiffs’ population projections were too unreliable to
    
    overcome 1990 census data.         See Perez, 165 F.3d at 373.     Based on
    
    Westwego and Perez, the district court properly acknowledged the
    
    persuasiveness    of    census   data     while   admitting   evidence    that
    
    demonstrated its inaccuracy in this case.             Because the district
    
    court found that the School Board’s 1997 population data overcame
    
    the 1990 census figures, the question is whether that finding was
    
    clearly erroneous.
    
    
    
    
         6
           The only Supreme Court authority on this matter is indirect.
    See Karcher v. Daggett, 
    462 U.S. 725
    , 732 n.4, 
    103 S. Ct. 2653
    ,
    2659 n.4 (1983) (in reapportionment, a state cannot “correct”
    census figures “in a haphazard, inconsistent, or conjectural
    manner”); Kirkpatrick v. Preisler, 
    394 U.S. 526
    , 535, 
    89 S. Ct. 1225
    , 1231 (1969) (a state can consider post-census population
    shifts in redistricting if its findings are “thoroughly documented
    and applied throughout the state in a systematic, not an ad hoc,
    manner”). The Ninth Circuit refused to apply the Seventh Circuit’s
    “high standard” of “clear and convincing” evidence “in a case where
    intentional discrimination has been proved, and the data is merely
    to be used in fashioning a remedy.”       Garza v. County of Los
    Angeles, 
    918 F.2d 763
    , 773 n. 3 (9th Cir. 1990).
    
                                          12
               The    Plaintiffs   present      a   laundry   list   of   purported
    
    problems concerning the methodology of Rives, the School Board’s
    
    demographics expert.      The School Board’s responses as well as
    
    Rives’s   cross-examination     at    trial     suffice   to   show   that   the
    
    Plaintiffs’ challenges are generally misdirected, exaggerations of
    
    hypothetical problems, based upon criticisms of assumptions that
    
    played no role in Rives’s methodology, or based on the analysis in
    
    Rives’s superseded 1995 reports.            The Plaintiffs’ most emphatic
    
    argument -- that Rives himself admitted his April Report was
    
    “wrong” -- is overstated, because Rives did so only in the context
    
    of explaining how the August Report was based on more current data
    
    and corrected a calculation error.              Rives’s admissions did not
    
    affect the underlying finding of both the April and August Reports:
    
    the Plaintiffs’ demonstration district did not contain a majority
    
    of Hispanic voting-age citizens.
    
               The general description of Rives’s methodology given
    
    above reveals that the Gingles I issues in this case do not involve
    
    any complicated statistical formulae or tests of significance that
    
    might bedazzle or bamboozle an unwary district court.             Cf. Overton
    
    v. City of Austin, 
    871 F.2d 529
    , 544-45 (5th Cir. 1989) (Jones, J.,
    
    concurring)      (discussing   some        district   courts’     ill-founded
    
    assumptions about the levels at which correlation coefficients
    
    become statistically significant).           The data here were relatively
    
    simple; their manipulation involved only rudimentary arithmetic.
    
               Under these circumstances, the district court did not
    
    clearly err in deciding that Rives’s report demonstrated sufficient
    
                                          13
    post-census demographic changes to erode the Hispanic majority in
    
    the Plaintiffs’ demonstration district.                    In doing so, we take
    
    special note of the School Board’s responses to the Plaintiffs’
    
    three weightiest methodological criticisms, each of which the
    
    district court could have credited without committing clear error:
    
    (1)    the    housing     stock    methodology      can     be   appropriate     for
    
    calculating      population       changes    in    small    areas,   (2)    it    was
    
    appropriate to account for some apartment complexes by projecting
    
    their imminent populations at the end of ongoing lease-up periods,
    
    and (3) despite some lapses, the municipal power company’s records
    
    of    new    electrical   hook-ups     were   an    accurate     gauge     of   newly
    
    developed housing in the entire school district.                     Further, the
    
    School Board’s methodology was much more sophisticated than the
    
    crude straight-line population projection that was rejected in
    
    Perez.      See Perez v. Pasadena Indep. Sch. Dist., 
    958 F. Supp. 1196
    ,
    
    1212-13 (S.D. Tex. 1997), aff’d, 165 F.3d at 373 (5th Cir. 1999).
    
                                            B.
    
                  Even if the district court properly credited the School
    
    Board’s post-census demographic evidence, the Plaintiffs argue that
    
    it abused its discretion by excluding their proposed rebuttal
    
    evidence about post-census populations.
    
                  The district court excluded any evidence from Korbel’s
    
    last-minute survey “because it unfairly surprised the Defendants,”
    
    citing W.D. TEX. R. CV-16(e), under which the district court may,
    
    
    
    
                                            14
    “upon the showing of good cause,” permit a party to supplement the
    
    written summary of an expert’s proposed testimony.7
    
                On appeal, the Plaintiffs offer two reasons why their
    
    evidence was not an unfair surprise: (1) Korbel had testified in
    
    his deposition that Hispanic population was available south of the
    
    demonstration district; and (2) the survey was done in response to
    
    “new methodologies and numbers” in Rives’s August Report and was
    
    made available as soon as it was completed.
    
                The Plaintiffs’ first reason fails to account for how
    
    modern discovery handles expert witnesses. The Local Rule required
    
    a “written summary of [Korbel’s] proposed testimony.”                It further
    
    required that summary to include “the basis of the opinions which
    
    purport    to   be   the   testimony    of   the   witness”    and   “specific
    
    references to any exhibits that will be used by the witness in
    
    support of any opinions.”        W.D. TEX. R. CV-16(e) & note.            It can
    
    scarcely   be   maintained    that     Korbel’s    cursory    reference    in   a
    
    deposition could serve as adequate notice of his intent to rely on
    
    a door-to-door survey of a specific neighborhood.              Nor could that
    
    deposition response have provided sufficient information for the
    
    School Board to prepare to cross-examine Korbel about the survey.
    
    Cf. Sierra Club v. Cedar Point Oil Co., 
    73 F.3d 546
    , 571 (5th Cir.
    
    
    
         7
           Alternatively, in a footnote, the district court noted that
    the methodology and execution of Korbel’s survey were too flawed
    for the results to overcome the presumptive correctness of the 1990
    census. Although it appears quite compelling, the School Board
    does not press this line of argument, and we need not pursue it
    since we hold that the evidence was properly excluded due to unfair
    surprise.
    
                                           15
    1996) (initial expert disclosures not sufficiently “complete and
    
    detailed” to meet discovery order).
    
                   The Plaintiffs’ second reason takes no account of the
    
    fact that the district court relied only upon Rives’s April Report,
    
    the admissibility of which the Plaintiffs never contested.                     If the
    
    survey was made necessary only by the novelty of the August Report,
    
    then       apparently      it   could   not    have      been    detrimental   to    the
    
    Plaintiffs to exclude both.
    
                   In   sum,    the   court   did      not   abuse    its   discretion    by
    
    excluding this evidence for unfair surprise when the proffering
    
    party failed to meet its duty to supplement its expert disclosures.
    
    See Alldread v City of Grenada, 
    988 F.2d 1425
    , 1436 (5th Cir. 1993)
    
    (no error in excluding expert witness’ testimony when information
    
    crucial to understanding it was not provided until two weeks prior
    
    to trial); Mills v. Beech Aircraft Corp., 
    886 F.2d 758
    , 764 (5th
    
    Cir. 1989) (proper use of discretion to exclude results from tests
    
    conducted by plaintiffs’ expert the week before trial).8
    
    
           8
           The survey evidence was also unnecessary once the district
    court excluded the District’s August Report. This satisfies the
    first factor of a four-factor test that has sometimes been applied
    in evaluating a district court’s exercise of discretion: “(1) the
    importance of the witness’s testimony; (2) the prejudice to the
    opposing party of allowing the witness to testify; (3) the
    possibility of curing such prejudice by granting a continuance; and
    (4) the explanation, if any, for the party’s failure to identify
    the witness.” Bradley v. United States, 
    866 F.2d 120
    , 125 (5th
    Cir. 1989). See also Sierra Club, 73 F.3d at 572 (using same four
    factors in evaluating exclusion of evidence as sanction for
    violating discovery order). The Plaintiffs would also appear to
    fare quite poorly on the fourth factor, since it was obvious from
    the beginning that the School District would present evidence of
    1997 population. Neither party addresses the four-factor test on
    appeal, though the School District discussed it in its original
    
                                                  16
                Because it was not an abuse of discretion to exclude the
    
    survey results on the grounds of unfair surprise, we need not
    
    address whether Korbel’s survey would have constituted proper
    
    rebuttal testimony.
    
                                           V.
    
                For the foregoing reasons, the district court properly
    
    placed   the    burden   on   the   Plaintiffs   to   prove   a    majority   of
    
    Hispanics      among   voting-age     citizens   in   their       demonstration
    
    district; the district court did not clearly err in finding the
    
    School Board presented sufficient evidence to prove demographic
    
    changes since the census; and the district court did not abuse its
    
    discretion in excluding the Plaintiffs’ proposed rebuttal testimony
    
    for unfair surprise.
    
                The judgment of the district court is AFFIRMED.
    
    
    
    
    motion to strike.
    
                                           17
    

Document Info

DocketNumber: 98-50227

Filed Date: 4/1/1999

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (23)

Campos v. City of Houston , 113 F.3d 544 ( 1997 )

Kirkpatrick v. Preisler , 394 U.S. 526 ( 1969 )

Karcher v. Daggett , 462 U.S. 725 ( 1983 )

Thornburg v. Gingles , 478 U.S. 30 ( 1986 )

Growe v. Emison , 507 U.S. 25 ( 1993 )

Voinovich v. Quilter , 507 U.S. 146 ( 1993 )

Johnson v. De Grandy , 512 U.S. 997 ( 1994 )

Frank McNeil Individually and as Representatives of a ... , 851 F.2d 937 ( 1988 )

Dirk and Cynthia Bradley, Individually and as Next Friends ... , 866 F.2d 120 ( 1989 )

Volma Overton, and Ernesto Calderon, Plaintiffs-Intervenors-... , 871 F.2d 529 ( 1989 )

mrs-cloerine-brewer-tae-chin-gilmore-and-humberto-flores-cross-appellees , 876 F.2d 448 ( 1989 )

dr-gloria-j-romero-willie-e-white-joseph-lee-duncan-tomas-ursua-and , 883 F.2d 1418 ( 1989 )

helen-nichols-mills-alice-mills-nolley-mary-mills-corkern-robyn-mills , 886 F.2d 758 ( 1989 )

Westwego Citizens for Better Government v. City of Westwego,... , 906 F.2d 1042 ( 1990 )

patrick-townsend-karen-townsend-v-holman-consulting-corporation-and , 914 F.2d 1136 ( 1990 )

Bernita Tramonte, Surviving Widow of Angelo Tramonte v. ... , 947 F.2d 762 ( 1991 )

Timothy Alldread v. City of Grenada , 988 F.2d 1425 ( 1993 )

Rita Rangel v. Dan Morales, the Attorney General and the ... , 8 F.3d 242 ( 1993 )

sierra-club-lone-star-chapter-plaintiff-counter-v-cedar-point-oil , 73 F.3d 546 ( 1996 )

wanda-negrn-antonio-dominguez-victor-alfred-varela-william-calderin , 113 F.3d 1563 ( 1997 )

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