Polythane Systems, Inc. v. Marina Ventures Intern., Ltd. ( 1993 )

  •                                     United States Court of Appeals,
                                                  Fifth Circuit.
                                             Nos. 92-7058, 92-7310.
                   POLYTHANE SYSTEMS, INC., Plaintiff-Counter Defendant-Appellee,
      MARINA VENTURES INTERNATIONAL, LTD., and Marina Ventures, Ltd., Defendants-
    Counter Plaintiffs-Appellants,
       Constellation Place Corporation, and LF Marina Corporation, Counter Plaintiffs-Appellants.
                                                 June 28, 1993.
    Appeals from the United States District Court for the Southern District of Texas.
    Before POLITZ, Chief Judge, DUHÉ, Circuit Judge, and MAHON1, District Judge.
              DUHÉ, Circuit Judge:
              Two marina floating dock systems began to lose buoyancy. The manufacturer of the
    polyurethane flotation foam used in the docks' construction was notified that its product may be
    defective. In a preemptive move, the foam manufacturer sued for declaratory judgment, requesting
    that the court determine what liability, if any, it may have for the docks' problems. The designer,
    builder, and owners of the docks filed counter-claims. A jury found that the flotation foam was not
    defective, and that the manufacturer was not liable. Finding no reversible error, we affirm.
                                      Background and Procedural History
              Two marinas in Baltimore, Maryland, the Anchorage Marina and the Licorice Factory Marina
    (the "Baltimore Marinas"),2 were developed by Marina Ventures International, Ltd. ("MVI"). Marina
    Ventures, Ltd. ("MV")3 built these facilities using a floating dock system comprised of laminated
           District Judge of the Northern District of Texas, sitting by designation.
        The marinas are owned by cooperatives made up of the owners of the boat-slips in the
    respective marinas. Constellation Place Corporation owns the Anchorage Marina, and LF Marina
    Corporation owns the Licorice Factory facility.
         These entities will be referred to collectively as "Marina Ventures," unless it is necessary to
    distinguish between them.
    wood decking attached to pontoons filled with polyurethane flotation foam. The docks are anchored
    to a series of pilings driven into the seabed. This construction allows the docks to rise and fall with
    the tide.
            Polythane Systems, Inc. ("PSI") manufactured some of the flotation foam used in the
    Baltimore Marinas. PSI shipped the foam as two liquids which were later blended together at the
    jobsites to produce solid foam material.
            The marinas began to experience a loss of "freeboard," the distance between the docks and
    the water. Marina Ventures requested that PSI send a representative to inspect this problem. PSI
    declined to do so, stating that there was no indication that the loss of freeboard was attributable to
    their foam; moreover, there was a question as to whether PSI foam was used in the problem areas.
            In reaction to Marina Ventures' allegations that it had sold defective flotation foam, PSI filed
    a declaratory judgment action in district court in Texas. Marina Ventures responded with motions
    to dismiss for lack of personal jurisdiction, and to transfer the action to the District of Maryland,
    where they were involved in litigation against another flotation foam manufacturer. A magistrate
    judge recommended against transfer, and that personal jurisdiction over the Appellants was properly
    exercised. The district court adopted these conclusions. Trial proceeded, and the jury returned a
    verdict against the Appellants. The court then assessed costs against Marina Ventures. We are urged
    to find error in a host of actions taken by the district court, including its assessment of costs against
    1. Personal Jurisdiction
            Appellants first contend that the district court improperly exercised personal jurisdiction over
    them. Marina Ventures International, Ltd. ("MVI"), and Marina Ventures, Ltd. ("MV"), are both
    organized under the laws of Maryland; neither maintains an office or an agent for service of process
    in Texas. The owners of the respective marinas have no contacts with Texas. PSI is a Texas
    corporation, whose principal place of business is Spring, Texas. Diversity of the parties provided
    jurisdiction for PSI's declaratory judgment petition. 28 U.S.C. § 1332(a).
              MVI was responsible for paying suppliers, including PSI, and for providing financing for these
    projects. See R. vol. III, at 440 (Deposition of Gary Sheide); Id. at 427 (Deposition of Gale J.
    Brimhall). Floatec International Corp., a Texas corporation, was engaged by MVI to apply the
    polyurethane foam supplied by PSI.
              MV actually built the marinas. The orders for PSI flotation foam were placed on MV
    purchase-order forms, and were often signed by Gary Sheide, MV's president. PSI would mix the
    components for the foam at their Texas facility, and ship the drums "F.O.B. Plant." Payments were
    made via mail to PSI in Texas.
              "A nonresident defendant is amenable to personal jurisdiction in a federal diversity suit to the
    extent permitted by a state court in the state in which the federal court resides." Bullion v. Gillespie,
    895 F.2d 213
    , 215 (5th Cir.1990) (citing Cycles, Ltd. v. W.J. Digby, Inc., 
    889 F.2d 612
    , 616 (5th
    Cir.1989); DeMelo v. Toche Marine, Inc., 
    711 F.2d 1260
    , 1264 (5th Cir.1983)). Our inquiry thus
    starts with a review of the Texas Long-Arm Statute.4 Next, we address whether the statutory
    exercise of jurisdiction comports with the due process concerns of the fourteenth amendment. See
    Jones v. Petty-Ray Geophysical Geosource, Inc., 
    954 F.2d 1061
    , 1067 (5th Cir.), cert. denied, ---
    U.S. ----, 
    113 S. Ct. 193
    121 L. Ed. 2d 136
              The Texas Long-Arm Statute reaches as far as constitutionally permitted, and the personal
    jurisdiction inquiry collapses into one of due process only. Bullion, 895 F.2d at 216; Bearry v.
    Beech Aircraft Corp., 
    818 F.2d 370
    , 372-73 (5th Cir.1987). This results in the familiar two-pronged
    analysis: (1) minimum contacts with the forum state; and (2) the exercise of personal jurisdiction,
    under the circumstances, must not offend "traditional notions of fair play and substantial justice."
    Command-Aire Corp. v. Ontario Mechanical Sales & Service, Inc., 
    963 F.2d 90
    , 94 (5th Cir.1992)
    (internal citations omitted).
              Personal jurisdiction over a nonresident defendant can be general or specific. Bullion, 895
    F.2d at 216. General jurisdiction arises when the nonresident defendant maintains systematic and
    continuous contacts with the forum state. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466
           Tex.Civ.Prac. & Rem.Code Ann. §§ 17.041-.045 (Vernon 1986).
    U.S. 408, 415-16, 
    104 S. Ct. 1868
    , 1872-73, 
    80 L. Ed. 2d 404
            In the instant dispute, the Appellants' contacts with Texas cannot support general jurisdiction.
    Therefore, we review whether the court properly exercised specific jurisdiction. Physical presence
    in the forum state is not determinative; rather "[t]he appropriate inquiry is whether the defendant
    purposefully availed [it self] of the privilege of conducting activities in-state, thereby invoking the
    benefits and protections of the forum state's laws.... Jurisdiction is improper if grounded in the
    unilateral activity of the plaintiff." Bullion, 895 F.2d at 216 (internal citations omitted).5
            Appellants MV and MVI purposefully availed themselves of the privilege of conducting
    business in Texas. At the outset, we note that the contract, as evinced by the purchase orders and
    corresponding invoices, shows that the mixing and packaging of the flotation foam was performed
    in Texas. The place where the contract is performed is a "weighty consideration" in ascertaining
    whether or not specific jurisdiction is properly exercised. Command-Aire Corp., 963 F.2d at 94.
    Once mixed, the foam was delivered to a common carrier in Texas, where title passed to PSI.6 See
    Bearry v. Beech Aircraft Corp., 
    818 F.2d 370
    , 372-73 (5th Cir.1987) (location where title passes is
    factor in analyzing jurisdictional question). Payments were made to PSI, by mail, at its Texas offices.
    This buyer-seller relationship continued for over three years. MVI also engaged Floatec, another
    Texas corporation, to apply the flotation foam supplied by PSI. Furthermore, both the Appellee's
    declaratory judgment action and the Appellants' counter-claims stem from the sales of flotation foam.
            Aggregating the Appellants' contacts with Texas, it is clear that their connections " "were
    deliberate, rather than fortuitous, so that the possible need to invoke the benefits and protections of
        See also Standard Fittings Co. v. Sapag, S.A., 
    625 F.2d 630
    , 643 (5th Cir.1980) (" "[T]he
    operative consideration is that the defendant's contacts with the forum state were deliberate,
    rather than fortuitous, so that the possible need to invoke the benefits and protections of the
    forum's laws was reasonably foreseeable, if not foreseen, rather than a surprise.' ") (quoting
    Product Promotions, Inc. v. Cousteau, 
    495 F.2d 483
    , 496 (5th Cir.1974)), cert. denied, 
    451 U.S. 910
    101 S. Ct. 1981
    68 L. Ed. 2d 299
        See Tex.Bus. & Com.Code § 2.401 (Vernon 1968) (Title passes at "the time and place at
    which the seller completes performance with reference to the physical delivery of the goods[.]").
    PSI's invoice stated that the place of delivery was "F.O.B. Plant." Consequently, PSI's obligations
    as a seller were complete when it placed the foam in possession of the common carrier at its
    Texas plant. See Tex.Bus. & Com.Code § 2.319(a)(1) (Vernon 1968).
    the forum's laws was reasonably foreseeable....' " Standard Fittings Co. v. Sapag, S.A., 
    625 F.2d 630
    643 (5th Cir.1980) (quoting Product Promotions, Inc. v. Cousteau, 
    495 F.2d 483
    , 496 (5th
    Cir.1974)), cert. denied, 
    451 U.S. 910
    101 S. Ct. 1981
    68 L. Ed. 2d 299
            Turning to the second prong of the due process inquiry, we evaluate whether the exercise
    of jurisdiction over the Appellants offends "traditional notions of fair play and substantial justice."
    Asahi Metal Indus. Co. v. Superior Court, 
    480 U.S. 102
    , 105, 
    107 S. Ct. 1026
    , 1028, 
    94 L. Ed. 2d 92
    (1987); see Command-Aire Corp., 963 F.2d at 94; Bullion, 895 F.2d at 216. The Command-Aire
    Corp. court noted that "[t]his assessment requires examination of the burden on the defendant, the
    interest of the forum state, the plaintiff's interest in obtaining relief, and the shared interest of the
    several states in furthering fundamental social policies." Command-Aire Corp., 963 F.2d at 95.
            Although Texas may be less convenient for Appellants than a Maryland forum, we cannot say
    that prosecut ion of the action in Texas was unreasonable or unfair. Marina Ventures was able to
    lodge its counter-claims in responding to PSI's petition for declaratory judgment. No witnesses or
    documents were shown to be unavailable to Appellants in Texas, despite the distance from Marina
    Ventures' offices in Maryland. The forum state's interest stems from the involvement of two of its
    corporate citizens in this action—PSI and Floatec. PSI, as the declaratory judgment plaintiff,
    assuredly had an interest in ascertaining what liability it may have for the marinas' problems. PSI
    likewise would have a legitimate interest in defending its product's reputation against Appellants'
    claims that the flotation foam was defective.
            Determinations regarding the exercise of personal jurisdiction over non-resident defendants
    must be made on a case-by-case basis. See D.J. Investments, Inc., v. Metzeler Motorcycle Tire Agent
    Gregg, Inc., 
    754 F.2d 542
    , 544 (5th Cir.1985). On balance, the Appellants have failed to persuade
    us that the proceedings in Texas were offensive to the notions of fair play or substantial justice. The
    parties had an ongoing business relationship, and the Appellants' contacts with the forum state were
    not fortuitous. Personal jurisdiction was appropriately exercised. See Command-Aire Corp., 963
    F.2d at 95; D.J. Investments, Inc., 754 F.2d at 547-48. Compare Holt Oil & Gas Corp. v. Harvey,
    801 F.2d 773
     (5th Cir.1986) (single contract executed in forum state insufficient to support specific
    jurisdiction), cert. denied, 
    481 U.S. 1015
    107 S. Ct. 1892
    95 L. Ed. 2d 499
     (1987); Hydrokinetics,
    Inc. v. Alaska Mechanical, Inc., 
    700 F.2d 1026
     (5th Cir.1983) (goods manufactured in Texas,
    payment made there, and buyer's representative visited state, held not dispositive on jurisdictional
    issue; contract repeatedly stated that all disputes governed by Alaskan law), cert. denied, 
    466 U.S. 962
    104 S. Ct. 2180
    80 L. Ed. 2d 561
    2. Forum Non Conveniens
            "We review the district court's forum non conveniens determination for abuse of discretion."
    Command-Aire Corp., 963 F.2d at 95. In response to a motion for dismissal on the basis of forum
    non conveniens, the court must first ascertain that there is a suitable alternative forum, and then
    balance the private and public interest factors. Id. (citing Gulf Oil Corp. v. Gilbert, 
    330 U.S. 501
    67 S. Ct. 839
    91 L. Ed. 1055
     (1947)). Additionally, while district courts should normally respect a
    plaintiff's forum choice, "[c]onvenience is at the heart of the inquiry." Id. (citing Empresa Lineas
    Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G., 
    955 F.2d 368
     (5th Cir.1992)). The
    district court found that: (1) the majority of PSI's witnesses and all of its documents were located
    in Texas; (2) Marina Ventures' expert, counsel, and the majority of their documents were located in
    Louisiana; and (3) Marina Ventures made no showing of necessary witnesses residing in Maryland
    who would be unable to attend the trial in Texas. R.vol. III, at 636. The record bears out the
    correctness of these findings. The district court did not abuse its discretion in denying transfer on the
    basis of forum non conveniens.
         PSI's invoices contained a provision stating, "It is mutually agreed by and between the parties
    hereto that this contract shall be construed under the laws of the State of Texas." This language
    is located on the back of the invoices. A purchaser's attention is directed to the invoice's flip-side
    by a disclaimer at the bottom of the invoice:
                    Between merchants, additional terms in the acceptance of an offer become part of
            the contract, unless (1) the offer limits acceptance to its terms; (2) the terms materially
            alter the offer; (3) the offeror gives seasonable notice that he objects to the new terms.
            Tex.Bus. & Com.Code § 2.207(b) (Vernon 1968).
    3. Admission of Expert's Report
            During the cross-examination of Eric Walle, Marina Ventures' expert witness, counsel for
    PSI engaged him in the following exchange:
           PSI COUNSEL: Now, you mentioned—you referred to Dr. Kaye's report. You have
           reviewed Dr. Kaye's report, have you not?
           WALLE: That's correct.
           COUNSEL: And you've used Dr. Kaye's reports in coming to your opinions?
           WALLE: Some of it, yes.
           COUNSEL: And you relied upon that report when you gave your deposition, when you gave
           your opinions; is that correct?
           WALLE: That's correct.
    R.vol. VIII, at 413-14. Dr. Howard Kaye was listed in the pretrial order as a testifying expert witness
    for PSI. However, he did not testify. On the basis of Walle's reliance on Kaye's report, PSI offered
    it into evidence. Appellants' counsel promptly objected, but the court admitted the document.8
            The fact that Marina Ventures' expert relied on portions of Kaye's report does not make the
    report admissible. Federal Rule of Evidence 705 provides that an expert may give an opinion on a
    matter without prior disclosure of the facts or data underlying his opinion, unless the court requires
    otherwise. "The expert may in any event be required to disclose the underlying facts or data on
    cross-examination." Fed.R.Evid. 705. While revealing the basis for an expert's opinion is allowed,
    such disclosure does not facilitate the admission of otherwise inadmissible evidence. See United
    States v. Mest, 
    789 F.2d 1069
    , 1073-74 (4th Cir.1986); United States v. Dyer, 
    752 F.2d 591
    , 593
    (11th Cir.1985); Bobb v. Modern Products, Inc., 
    648 F.2d 1051
    , 1055 (5th Cir.1981); Bryan v.
    John Bean Division of FMC Corp., 
    566 F.2d 541
    , 546-47 (5th Cir.1978).
           In Box v. Swindle, 
    306 F.2d 882
     (5th Cir.1962), a pre-Federal Rules of Evidence case, we
    held that the contents of a report prepared by a non-testifying expert could be admitted if a testifying
        Kaye's report contradicted testing done by Marina Ventures' experts regarding the closed-cell
    content of the flotation foam. A higher percentage of closed cells is desirable, as this molecular
    structure is less likely to be permeated by water. Kaye's tests indicated that the PSI foam met
    Marina Ventures' specifications.
    expert bases his present opinion on, or testifi es directly from, such a report. Id. at 887. Certain
    limitations apply, however, and the evidence should be admitted only for the limited purpose of
    discrediting or impeaching the testifying expert and the jury should be carefully instructed about its
    restricted use. Id. This reasoning was carried over into cases decided after the Federal Rules of
    Evidence were adopted. See Bryan v. John Bean Div. of FMC Corp., 
    566 F.2d 541
    , 546 (5th
    Cir.1978). Bryan is especially instructive on this point.
            In Bryan, the Defendant's testifying metallurgical expert (Walters) based his opinion partially
    on the reports of two nontestifying experts—one expert for the Plaintiff, and one expert for the
    Defendant. Both of these experts had compiled written reports of their findings, and each report
    contained opinions on the ultimate issue in dispute. On the cross-examination of Walters, Plaintiff's
    counsel referred extensively to these reports, quoting from them verbatim. Later, counsel referred
    to them in his jury arguments. The Bryan court noted that, "He made much greater use of the
    opinions than of the data underlying them." Id. at 544. The Defendant objected to the use of these
    non-testifying expert reports on the ground that, although the facts recited in the reports might be
    admissible, the opinions of the non-testifying experts were not. The district court overruled this
    objection, stating that the opinions were admissible because they were supporting data for Walters's
    opinion. The court gave a limiting instruction that the reports were only to be considered as the basis
    for the testifying expert's opinion.
            On appeal, the admission of information contained in these reports was held to be reversible
    error. The excerpts quoted by Plaintiff's counsel lacked any independent guarantee of trustworthiness
    that would have justified dispensing with cross-examination of the expert who prepared the report.
    Id. at 546. Additionally, the Bryan court stated that "to admit the hearsay opinion of an expert not
    subject to cross-examination goes against the natural reticence of courts to permit expert opinion
    unless the expert has been qualified before the jury to render an opinion." Id. at 546.
             We are faced with such a dilemma in the present case. There was no opportunity to
    cross-examine Kaye regarding the methodology he employed, statistical discrepancies in his report,
    or any other matters which might illuminate shortcomings in his work. Moreover, PSI used Kaye's
    report in a substantive manner—counsel was able to introduce Kaye's conclusions into evidence.9
    This is well beyond the limits discussed in Box v. Swindle or Bryan. Consequently, the admission of
    Kaye's report was error. This does not end our inquiry. We must address whether the error was
    harmless under Federal Rule of Civil Procedure 61.10 See United States v. Scott, 
    678 F.2d 606
    , 612
    (5th Cir.), cert. denied, 
    459 U.S. 972
    103 S. Ct. 304
    74 L. Ed. 2d 285
     (1982). We will not disturb
    an evidentiary ruling, albeit an erroneous one, unless it affects a substantial right of the complaining
    party. See Fed.R.Evid. 103(a); Foster v. Ford Motor Co., 
    621 F.2d 715
    , 721 (5th Cir.1980).
               The introduction of Kaye's report occurred on the third day of a four day jury trial, which
    produced a trial transcript in excess of nine hundred pages. Including the predicate testimony quoted
    above, seven pages contain discussions regarding the report's results. See R.vol. VIII, at 413-19.
    The thrust of this discussion was aimed at rebutting Marina Ventures' expert's contention that PSI
    sold Marina Ventures defective foam.
              That experts differ on whether or not a product is defective is not unusual; the flaw in this
    case was that the contradicting opinion was offered in the form of hearsay evidence. If this was the
    only evidentiary peg on which the jury could hang its verdict, the report's admission would be
    reversible error. Such is not the case; the Appellee offered several explanations for the loss of
           See Bryan, 566 F.2d at 546-47:
                     The fact that other experts reached a different conclusion goes to the weight of
                     Walters's conclusions. Since Walters's testimony could only be undercut by
                     arguing the substantive correctness of the other expert's conclusions, this evidence
                     should have been brought out, if at all, on direct examination of the reporting
                     experts. As it occurred in trial, however, the nonimpeaching evidence was argued
                     substantively, violating the hearsay rule, without permitting cross-examination to
                     the defendants.
            Rule 61 provides:
                             No error in either the admission or the exclusion of evidence and no error
                     or defect in any ruling or order or in anything done or omitted by the court or by
                     any of the parties is ground for granting a new trial or for setting aside a verdict ...
                     unless refusal to take such action appears to the court inconsistent with substantial
                     justice. The court at every stage of the proceeding must disregard any error or
                     defect in the proceeding which does not affect the substantial rights of the parties.
              Fed.R.Civ.P. 61; see also Fed.R.Evid. 103(a) ("Error may not be predicated upon a ruling
              which admits or excludes evidence unless a substantial right of the party is affected[.]").
    freeboard at the Baltimore Marinas.11 Considering the record as a whole, we conclude that the
    erroneous admission of Kaye's report was harmless and did not effect any substantial rights of
    Appellants. See Koonce v. Quaker Safety Products & Mfg. Co., 
    798 F.2d 700
    , 720 (5th Cir.1986);
    Pregeant v. Pan American World Airways, Inc., 
    762 F.2d 1245
    , 1249 (5th Cir.1985); see also
    United States v. Underwood, 
    588 F.2d 1073
    , 1076 (5th Cir.1979), ("An error is harmless if the court
    is sure, after reviewing the entire record, that the error did not influence the jury or had but a very
    slight effect on its verdict.").
    4. Witness Sequestration
              The district court imposed the witness sequestration rule, and excluded all witnesses from the
    courtroom proceedings. Fed.R.Evid. 615.12 Appellants argue the district court erred in excluding
    Elige Grant, Marine Venture's in-house engineer, after Grant completed his testimony. In Grant's
    absence, the Appellants maintain they were unable to effectively cross-examine Guerry Taylor, PSI's
    expert witness. Alternatively, it is urged that the court erred in not permitting Grant to retake the
    stand for rebuttal purposes.
               Appellants contend that Grant should have been exempt from the sequestration order as a
    person whose presence during the proceedings is "essential to the presentation of [its] cause."
          For example, PSI offered testimony that it was improper to copy a marina design in a "cookie
    cutter fashion," as Appellants had done with the Licorice Factory Marina. See R.vol. IX, at 719.
    Also, there was evidence presented that the laminated wood decking contained too much oil, and
    that this caused caulking between the pontoons and the decking to crack and fall off. Water
    entered the pontoon shells and could not escape, thus increasing their weight and decreasing their
    buoyancy. Id. at 680. Finally, much was made of the fact that Marina Ventures did not have a
    professional engineer on its staff at the time the Licorice Factory Marina was built. See R.vol.
    VII, at 133-39.
            Federal Rule of Evidence 615 provides:
                            At the request of a party the court shall order witnesses excluded so that
                     they cannot hear the testimony of other witnesses, and it may make the order of its
                     own motion. This rule does not authorize exclusion of (1) a party who is a natural
                     person, or (2) an officer or employee of a party which is not a natural person
                     designated as its representative by its attorney, or (3) a person whose presence is
                     shown by a party to be essential to the presentation of the party's cause.
    Fed.R.Evid. 615(3).13 Whether or not a witness is essential, and hence should be exempt from Rule
    615 exclusion, is a matter soundly within the discretion of the trial court. We will not upset this
    determination absent an abuse of that discretion. See United States v. Agnes, 
    753 F.2d 293
    , 306 (3rd
    Cir.1985); Government of Virgin Islands v. Edinborough, 
    625 F.2d 472
    , 475 (3rd Cir.1980);
    Windsor Shirt Co. v. New Jersey Nat'l Bank, 
    793 F. Supp. 589
    , 617 (E.D.Pa.1992).
            Expert witnesses clearly fall within Rule 615(3)'s exception. The Advisory Committee's notes
    state that 615(3) "contemplates such persons as an agent who handled the transaction ... or an expert
    needed to advise counsel in the management of the litigation." Fed.R.Evid. 615 advisory committee's
    note. We have previously acknowledged as much. See T.J. Stevenson & Co. v. 81,193 Bags of
    629 F.2d 338
    , 384 (5t h Cir.1980) (court "probably required" to allow expert to remain in
    courtroom). The T.J. Stevenson & Co. court cited Morvant v. Construction Aggregates Corp., 
    570 F.2d 626
     (6th Cir.1978), cert. denied, 
    439 U.S. 801
    99 S. Ct. 44
    58 L. Ed. 2d 94
     (1978), as support
    for this proposition. Morvant, is particularly instructive on this point:
                    We perceive little, if any, reason for sequestering a witness who is to testify in an
            expert capacity only and not to the facts of the case.... Theoretically at least, the presence in
            the courtroom of an expert witness who does not testify to the facts of the case but rather
            gives his opinion based upon the testimony of others hardly seems suspect and in most cases
            will be beneficial, for he will be more likely to base his expert opinion on a mo accurat e
            understanding of the testimony as it evolves before the jury.
    Morvant, 570 F.2d at 629-30.
            The reasoning of Morvant does not apply to this case for several reasons. First, Grant was
    not designated as a Rule 702 expert witness. Appellants' tendered Grant only as a Rule 701 lay
    witness whose opinions were based on his personal perceptions. See R.vol. VIII, at 358. Rule
    615(3) does not indicate that a Rule 702 expert witness designation is a prerequisite for exemption;
    615(3) requires a showing that a person is "essential" to the presentation of a case. However, Grant
    was going to testify as a fact witness and not as an expert giving opinion testimony based on the
          While Appellants do not cite to this subsection, 615(3) is the only exception that Grant could
    fall under. The first exception is not relevant (party who is a natural person). The second
    proviso, representative of a party which is not a natural person, is also inapplicable. Appellants'
    counsel designated Gary Sheide, President of Marina Ventures, Ltd., and Scott Stevenson,
    President of Marina Ventures International, Ltd., as the representatives for the corporate
    Appellants. See R.vol. VI, at 24.
    testimony of others. Grant's exception from the sequestration order may well have violated the policy
    reasons behind Rule 615, i.e. preventing witnesses from "tailoring" their testimony. See Miller v.
    Universal City Studios, Inc., 
    650 F.2d 1365
    , 1373-74 (5th Cir.1981); Morvant, 570 F.2d at 629-30;
    Skidmore v. Northwest Engineering Co., 
    90 F.R.D. 75
    , 76 (S.D.Fla.1981).
            Discussion over Grant's ability to assist counsel in the cross-examination of PSI's expert
    witness is also relevant:
            COUNSEL: I don't have an expert on this. This was the man that was to annotate this thing
            for me.
            THE COURT: I can't help that. I admonished both counsel at the pretrial conference that
            it would be the responsibility of counsel to bring to the Court's attention who fell within or
            out of the rule, and those were clear and unambiguous instructions.
            COUNSEL: You're basically correct.
    Id. at 434-35. Both parties were given the opportunity to exempt necessary participants from the
    reach of the court's Rule 615 order. Appellants did not avail themselves of this opportunity. After
    a careful review of the record, we are unpersuaded that the district court's actions, in respect to the
    exclusion of Grant, was an abuse of discretion.
    5. Evidentiary Errors
    A. Problems with Boston and Hong Kong Marinas
             Appellants complain that the court erred in permitting testimony concerning problems
    experienced at marinas in Hong Kong and Boston. These marinas were also built by Appellants using
    the floating dock design employed in the Baltimore Marinas. We fail to see how Appellants can claim
    error regarding the introduction of testimony on the Boston marina. During the direct examination
    of its first witness, Marina Ventures' itself placed into evidence a video tape of that facility. See
    R.vol. VII, at 63.
            Marina Ventures opened the door on the subject of the Hong Kong project when Gary Sheide
    testified that Marina Ventures was working on a project in Hong Kong, see R. vol. VII, at 83; and
    that no other Marina Ventures project experienced loss of freeboard. Id. at 72. Appellee was entitled
    to rebut that testimony. See Jones v. Southern Pac. R.R., 
    962 F.2d 447
    , 450 (5th Cir.1992).
            PSI then cross-examined Marina Ventures' expert witness on the subject. See R.vol. VII, at
    373. Later, PSI's expert testified on the similarity of the problems being experienced by the Baltimore
    and Hong Kong marinas. Id. at 535. On cross, Marina Ventures questioned him on the basis for his
    opinion. Id. at 561. As its last rebuttal witness, Marina Ventures recalled Dwayne Stevenson to
    testify extensively on the problems being experienced with the Hong Kong marina. See R.vol. IX,
    at 831-33.
            We conclude that it was not error to admit evidence regarding the Hong Kong project, and
    if it was error, it was harmless. See United States v. Underwood, 
    588 F.2d 1073
    , 1076 (5th
    B. Subsequent Remedial Measures
            Appellants invite us to find error in the district court's ruling which allowed testimony
    concerning Marina Ventures' decision to put tops or seals on their pontoons. We decline to accept
    this invitation.
            Evidence of subsequent remedial measures is inadmissible as evidence of a party's negligence.
    Fed.R.Evid. 407. Such evidence is permitted for other purposes, e.g. impeachment or to show
    feasibility of such measures. See id. advisory committee's note; Mills v. Beech Aircraft Corp., 
    886 F.2d 758
    , 763 (5th Cir.1989). Here, Marina Ventures offered evidence that tops were not necessary
    to keep water out of the pontoons, and that their floating dock system is "one of the strongest in the
    world." R.vol. VIII, at 361 (testimony of Elige Grant); see also R.vol. VII, at 305 (testimony of
    Wayne Werner).
            PSI offered the remedial evidence as an alternative explanation for the loss of freeboard at the
    Baltimore Marinas. Evidence of the remedial measures was not offered as proof of Marina Ventures'
    negligence, and the district court did not err in permitting it. See Muzyka v. Remington Arms Co.,
    774 F.2d 1309
    , 1313 (5th Cir.1985) (Testimony that rifle was "best, strongest, safest rifle" opened
    the door for evidence that rifle had been redesigned subsequent to accident; necessary for
    "impeachment of the experts who spoke in these superlatives.").
    6. Costs
            The district court assessed costs against Appellants as permitted by 28 U.S.C. § 1920 (1988).
    We review this award for abuse of discretion. Fogleman v. Aramco, 
    920 F.2d 278
    , 285 (5th
    Cir.1991). A bill-of-costs hearing was held and extensive testimony was presented. See R.vol XI
    (transcript of cost hearing). After carefully considering this evidence and reducing Appellee's
    requested fees for copies and exemplifications, the court assessed costs against Appellants. We are
    unpersuaded that the district court abused its discretion in this matter.
           After a thorough review of the record, we conclude that the other errors urged by the
    Appellants are without merit.
           For the foregoing reasons, the judgment of the district court is, in all respects, AFFIRMED.

Document Info

DocketNumber: 92-7058

Filed Date: 6/24/1993

Precedential Status: Precedential

Modified Date: 12/21/2014

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