*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-50834

Summary Calendar

 

WILSON SOPER & ESTATE OF RONALD SOPER,

Plaintiffs-Appellees,

and

RELIANCE INSURANCE COMPANY,

Intervenor-Plaintiff- 

 Appellee,

versus

SIDNEY MANUFACTURING COMPANY,

Defendant-Appellant.

 

Appeal from the United States District Court

For the Western District of Texas

(W-94-CV-221)

 

July 25, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Decedent Ronald Soper and his father sued Sidney Manufacturing

Company on theories of product defect and failure to warn. Soper,

a construction worker, was installing and constructing a manlift
2

manufactured by Sidney when he fell some 170 feet to his death.

Plaintiffs’ theory of the case was that defendant negligently

manufactured one of the brake “shoes” or “dogs” in the manlift such

that it did not properly align with the lift’s guide rail. This

misalignment rendered the shoe’s teeth unable to bite with force

sufficient to keep the manlift from falling. Plaintiffs also

alleged that the defendant negligently failed to warn potential

users that they should not rely solely on the emergency braking

system during installation. Sidney defended on three grounds:

first, that no misalignment in fact existed; second, that Soper

caused the accident by fiddling with the brake shoe; and third,

that Soper’s own failure to wear a safety rope contributed to his

death. A jury found the decedent 40% responsible for his own death

and Sidney 60% responsible. The jury further found that the

decedent’s estate suffered $250,000 in losses, and that Soper’s

father lost an equal amount. After adjusting for certain

stipulated expenses and for the findings of comparative fault, the

district court ordered Sidney to pay plaintiffs $311,415.52, plus

interest.

Sidney’s appeal rests on three primary arguments. First,

Sidney contends that the evidence was insufficient to support a

jury finding of liability on any of the plaintiffs’ theories.

Second, Sidney disputes the trial judge’s decision to allow

plaintiffs to present evidence of three prior accidents involving

the failure of the brake shoe system. Third, Sidney complains of
3

the limits the trial judge placed on the cross-examination of

plaintiffs’ expert witness, Bill Stanfield.

We have little difficulty disposing of Sidney’s first two

arguments. The testimony of Stanfield, along with the plaintiffs’

other evidence, was sufficient to allow a rational jury to find

that Sidney’s negligent manufacture and failure to warn in part

caused Soper’s death. In addition, the trial court correctly

concluded that the three prior accidents were relevant to the issue

of whether Sidney had notice of the frailty of its brake shoe

system, a question important to plaintiffs’ failure to warn theory.

We find the matter concerning the cross-examination of

Stanfield close. Immediately after the accident, intervenor

Reliance Insurance Company, the workers compensation carrier for

Soper’s employer, hired engineer Stanfield’s firm to investigate

the accident. Accordingly, from the beginning, Stanfield had a

financial incentive to find that the negligence of someone other

than Soper’s employer caused the accident. Stanfield ultimately

became the plaintiffs’ primary witness on defect and failure to

warn. At opening statement and closing argument, plaintiffs’

counsel sought to bolster Stanfield’s credibility by implying that

he was a neutral investigator at the time he reached his

conclusions. During opening, counsel stated that Stanfield “was

called, not by the Plaintiffs and not by Sidney, to come down there

and figure out what the heck happened.” Counsel later added, “We

will pay for him to come and testify and tell you what he did.” At
4

closing, counsel made the same sort of factually true statements

designed to imply that Stanfield reached his conclusions before any

financial incentive to fabricate arose. Counsel argued,

We didn’t hire Mr. Stanfield to make his

investigation. He reached these conclusions before we

ever met Mr. Soper. We brought him here. We wanted you

to -- to hear him -- what he had found. We paid for him

to be here. I’m not going to -- I’m not going to tell

you that’s not the case. But he reached these

conclusions and took these pictures before I ever met

Wilson Soper. This isn’t something we cooked up for you.

This is something that was found out immediately after

the accident.

Before cross-examination began, defense counsel asked the

court to rule that he could question Stanfield regarding

subrogation and the potential for bias inherent in the fact the

workers compensation carrier originally sent Stanfield to the

scene. Defense counsel in particular referred to the plaintiffs’

opening statement implying Stanfield’s neutrality at the time he

made the investigation. The court responded, “I don’t believe that

there’s any indication that he would have a bias simply because he

was first employed by the insurance company, so I’m going to deny

that request.”

On cross-examination, the defense elicited from Stanfield

testimony that the plaintiffs were paying his firm for his

testimony, and that he worked full time for an engineering firm

specializing in providing expert testimony. In particular, the

following colloquy occurred:

Q And now you’ve gone to work for this company called

AID, right?
5

A Yes.

Q And they specialize in litigation engineering, that

is, doing what you’re doing here today, isn’t that right?

A Yeah. . . .

Defense counsel then asked a further series of questions

emphasizing Stanfield’s extensive experience as an expert trial

witness as well as his financial ties to the plaintiffs. Defense

counsel made an offer of proof, but did not object to the quoted

portion of plaintiffs’ closing argument.

The trial judge’s decision that no potential for bias stemmed

from the fact that Stanfield investigated at the behest of the

workers’ compensation carrier was erroneous. The parties agree

that Texas’s collateral source doctrine made the fact that

plaintiffs received workers compensation benefits irrelevant to the

issues of damages and right to recover. Nevertheless, the

collateral source rule removes only one theory of relevance for

this evidence. Evidence irrelevant on one issue may well be

relevant on another. In this context, we find the defendant’s

analogy to Fed. R. Evid. 411 well-taken. The first sentence of

this rule renders evidence of liability insurance inadmissible if

offered to prove one issue, namely, whether a “person acted

negligently or otherwise wrongfully.” The rule’s second sentence,

however, clarifies that evidence of liability insurance may well be

admissible to show bias.

The fact that an expert investigates on behalf of an insurance

company with an incentive to find someone else negligent is
6

relevant to show bias. An investigator working for a workers

compensation carrier has a financial motive to find, as Stanfield

did, that someone other than the employer negligently caused an

accident. The potential for bias arises as soon as relationship

between the expert (or his firm) and the carrier arises.

In this case, Stanfield was the plaintiffs’ expert on

causation, defect, and failure to warn. His financial incentive to

lie or to construe the evidence in a manner favorable to the

carrier, and favorable to the plaintiff, was relevant. As

plaintiffs point out, Fed. R. Evid. 403 gives the trial court broad

latitude regarding the admission of evidence, and proof of the

receipt of workers compensation benefits carries the danger that

the jury will draw a prohibited inference regarding the damages a

deserving plaintiff will receive. Had the trial court exercised

its discretion under Rule 403 and found the evidence more

prejudicial than probative, our decision would be rather

straightforward. But the record includes no indication that the

trial court exercised its discretion. On the contrary, the court’s

comments make clear that it thought the evidence irrelevant and

therefore inadmissible under Fed. Rs. Evid. 401-02. We cannot

agree.

We do agree with the plaintiffs, however, that this error did

not affect Sidney’s substantial rights. See Fed. R. Civ. P. 61;

Fed. R. Evid. 103(a). The defendant elicited testimony from

Stanfield that he was being paid several thousand dollars by the
7

plaintiffs at the time of trial, and that he worked as a litigation

expert full-time. Defense counsel used this evidence at closing,

arguing that Stanfield was not an independent witness. Moreover,

Reliance’s recovery was only for $19,025.88, its subrogation

interest. In light of this evidence and argument, we do not

believe that the disclosure of still another financial incentive

for Stanfield to stretch the evidence in plaintiffs’ favor would

have affected the jury’s verdict. No reasonable possibility exists

that this error affected Sidney’s substantial rights. See Miles v.

Olin Corp., 922 F.2d 1221, 1229 (5th Cir. 1991); Liner v. J.B.

Talley & Co., 618 F.2d 327, 331 (5th Cir. 1980). Accordingly, we

find the trial court’s error harmless.

AFFIRMED.