1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ATION: 2004 FED App . 0252P (6th C ir.) File Name: 04a02 52p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
G ALEN B ECK , as representative of the estate of Eugene Beck; and S HARON B ECK , Plaintiffs-

Appellant s,

v.

E DWARD A. H AIK , individually and officially for Manistee County; and R OBER T C. H ORNKOHL , individually and officially as Director of Public Safety

for City of Manistee, Defenda nts,

M ANISTEE C OUNTY ; and C ITY
OF M ANISTEE , Defenda nts-Appe llees. X - - - -
> , - - - - - - - - - - - - - - - - - N No. 01-2723

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d Rapids. No. 97-00533—Robert Holmes Bell, Chief District Judge.

Argued: June 18, 2003 2 Beck, e t al. v. Ha ik, et al. No. 01-2723

* The Honorabl e Alge non L. Marbley, Unit ed States Dist ric t Ju dge f

or the Southern Distri ct of Ohio, sit ting by designat ion. Decided and Filed: July 29, 2004 Before: BOGGS, Chief Judge; GI LMAN, Circuit Judge; and MARBLEY, District Judge. *

_________________ COUNSEL

ARGUED: Mark R. Be ndur e, BENDURE & THO MAS, D etroit, Michigan, for Plaintiffs. Joseph Ni mako
, CUMMI NGS, McCL OREY, DAVIS & ACHO, L ivonia, Michigan, Mary

Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, f

or Def endants. ON BRI EF: Mark R. Bendure, BENDURE

& THOMAS, Detroit, Michigan, Grant W. Parsons, P ARSONS, RI NG SM UT H, Tr av er se Ci ty, Michigan, for Plaintiffs. Josep h Ni mako, CUMM ING S, McC LOREY, DAVI S & ACHO, Livon ia, Michigan, Ma

r y Mas sa ronRoss, PL

UNKETT &

COONEY, D etroit, Michiga n, for De fendant s.

_________________ OPINION

_________________ BOGGS, Chief Judge. The plaint iffs in this 42 U.S. C. § 1983 civil rights suit appeal from the judgment entere d againstthem afte

r a jury verdic t for t he defendants. The plaintiffs challenge the correctness of several of the district court’s rulings on the admission of evidence and other trial matters, and arg

ue that th e effe ct of the se rulings substantia

lly prejudiced

their case. T hough w e do not accept all of the plaintiff s’ contentions, we agree that a number of errors occurred, and that t

hese we re suff iciently prejudic ial to require a new trial. We therefore r everse and remand.No. 01-2723 Beck, e t al. v. Ha ik, et al. 3

I
This case arose from the June 28, 1995, drowning death of Eugene Beck, who dropped from a bridg e (apparently af t er jump ing) into the Manistee River in Manistee, Michigan. The plaintiffs contend

that Mr. Beck died

because officials of the City and County of

Ma ni st ee , p ur su an t t o a mu ni ci pa l p ol ic y, prevented qualified civilian rescue divers on the scen e from saving hi m, ev en th ou gh th e c it y and cou nty provided no meaningful alternative rescue service of the ir own. In an earlier, unpublished, opinion, Beck v . Haik , No. 9 9-1 050, 2000 WL 1597 942 (6th Cir . Oct. 17, 2000), we held that these allegat ions, if proven, were jointly sufficient to establish a claim under 42 U.S.C. § 1983 for violation of Beck’s du e process rights u nder the Fourtee nth Ame ndment. 20 00 WL 1597942 at *4. We upheld the dist rict court’s grant of summary judgmen t dismissing

plaintiff s’ other claims. Id. at *9.

Onremand, the district c ourt held a seven-day

trial. Each element of the pla

intiffs’ case wa s signif

icantly contested: (1) whether the d efen dants city and county had a policy that p r evented private rescuers from assisting Mr. Be ck; (2) whether the rescu e servi ces made available by the de fe ndants were sufficiently effective to constitute a “mea ni ngful alternative” to private rescue; and (3) whether the Becks were able to show causa tion, by establishing that Mr. Beck would likely

have lived if private rescuers had bee n allowed t o dive af ter him.

The following

facts e merge d at trial

. In 1993, the Manistee County Sheriff ’s Depa rtment formed a c ounty

dive team. The sheriff’s department conclud edafter consultation with an expert that the c ounty

was too la

rge to p ermit

this dive team to be held ou

t to the public as a “rescue” team; instead, it was deemed a “recovery

” team. There was evidence that this term connoted the simple recovery

of bodies, rather

than the rescue an d re suscitati on of drow ning victims. For

a time, the

only member of the dive team was the n -deputy sheriff Dale 4 Beck, e t al. v. Ha ik, et al. No. 01-2723

1 Sher iff Haik was originall y named in the Bec ks’ comp laint as a defendant in his indiv idual c apa city. The district court granted him (and the othe r in divi dual defen dant, Chief Hornkohl ) su mmary judgmen t on the gr ound of quali fiedimmunity. W e affir med that ruling in the Becks’ prev ious ap pea l. Beck , 2000 WL 1597942 at * 7. Kowalkow ski, w ho was not forma lly t rained or certif

ied in dive rescue. By

the time of Mr. Beck’s plunge, it included several officers who were c ertifie d in diving , but not in dive
rescue.
After a fatal drowning acci de nt in the Ma nistee Riv er in 1993, a group of trained civilian diver s formeda privat e rescue organization called the Manistee Search and Rescue Dive Team (“MSRDT”). The MSRDT ente red intoa contract to provide r

esc ue an d recovery

services to the City of Manistee as needed. The members of the MSRDT carrie d pagers, which the city authorities c ould use to s um mon the MSRDT. A protocol devel oped w hereby the City wou ld page the county dive team first in case of a water emergency

, and
wou ld call out the MSRDT if t

he county team was

l ik el y t o have difficul

ty r esponding

promp tly . Howeve

r, a city memorandum

on this subj ect , produced at trial, included a handwri t t enannotation that “Sheriff Ed” would “decide” when th e M SR DT wo ul d b e c al le d o ut – a pp ar en tl y a reference to then-Sheriff Edward Haik. 1
The plaintiffs presented

evidence that some l ocal off icials
were hostile to the MSRDT’s activities. Art Krause, t h e founder of the MSRDT, testified

that Sher iff Haik persona lly told him that he wou ldbe subject to arrest if he interfered with the county’s oper

ations at a water accident scene. Michael Mosack, a Michigan State Police traine e and also a member of the MSRDT, l ikewise t estified that Haik threatened him with criminal charges if he e ntered the water
a tan accident scene. Fred L aPoint, a City of Manistee firefighter and another MSRDT member, testified that he had
seen a memo fr

om Maniste e County

Sheriff Edward H aik stating that all water accident scenes wer e to b e treated asNo. 01-2723 Beck, e t al. v. Ha ik, et al. 5

“crime scenes,” and that any

one who enter edsuch a scene withouthis permis sion would be subjec t to arrest. While no official copy

of th e alle ge d memo was produce d at trial
, several other witnesses acknowledged t hat th ey had e ither
seen or heard of sucha memo. Sergeant Douglas Cerma k of the Sheriff’s Department dive team testified that he had seen
a “c rime sce

ne” memo , and that

Haik had instructe d him t o take “appropriate ac tion” i f the MSRDT interfered with a county dive operation. On the o ther han d, the def endants pr ese nted testimony from severa

l local township fire chiefs who worked with Sheriff

Haik, and stated that

they had neve

r heard of such an “arrest policy .”

Beck and another man , Mar k Sander, plunged into the Manistee River at approximat ely 10 :07 p.m. on June 28, 1995. A by stander

saw their fall and immediate ly

called 911. The county dispatcher called personnel from the Manistee Police Depa

rtment , the Manistee Fire Department, and the Manistee County

S heriff's Department Dive Tea m (the “county dive tea

m”) to the scene.

The Manistee police arrived in time for one of the officers to see Be ck disapp ear beneath the river’s surfac e at 1 0:1 7 p.m. They notified b oth M anistee Police Chief Robert Hornkohl and the county dive team.
The city did not page

the MSRDT that night. How ever , Michael Mos ack, a m ember of the MSRDT w

ho was a Michigan State Police trainee and a certified diver, overheard the origin al 91 1 call reporting Beck’s plung e. Mosack immediate ly

gather ed his diving equipment, put on the lower half of his wet suit, and drove to the scene. Mosack estimated that he arr ived between 10:19 and 10:22 p.m., no more than five min utes a fter Beck went under the wa ter. Another MSRDT di ver, G ordon Cole, learned of the situation by overhearing

the dispa tcher’ s call tothe fire department. Cole drove to the sce

ne with his

equip m ent and a

rrived shortly before Mosack did. 6 Beck, e t al. v. Ha ik, et al. No. 01-2723

Firefighter

LaPoi nt also re sponded to

th e call. LaPoint drove to the scene in a city rescue ambulancedesignated R5. However, LaPoi

nt testifie d that shor

tly after he arrived, he received another call telling him that R5 had been “release d.” This, h e s aid, implied that the accident was no longer considered

a rescue scene, but wasi nstead a body r ecovery scene. LaPoint left the scene shortly thereaf

ter. Meanwhile, a C oast

Guard boat arrived on the scene at 10:27 p.m. The lo cal Coast Guard of

fic er, Chie f Timothy Monck, would later

testify in a deposition

that the Guard had learned of th e i nc id en t b y a

phone ca ll from a private citizen.

The county dive team a

lso responde d to the call. ThenSergeant D ou glas Cermak, a member of the sheriff ’s department, was driving a pa trol car with his pa

rtner Jim Doerningwhen a call from the dispatcher alerted him that B eck was in the river. Cermak proceeded to the sher iff’s office, where he and Doe rning g athere d th ei r diving equipmen t. Cermak also put on part of his wet suit. The men left the sheriff’ s office

at 10:33 p. m. Cermak estimated that it took him only a couple of minutes t o drive from the sheriff’s office to the river and the sce ne of the accident.

At the scene, a

partially suited-up member of the MSRDT

– apparent ly Mosack – approached Cermak and aske d if the county team nee ded help. Cermak to ld him t hat the c ounty “had everything

under control.” Moreover, Mosack testified tha the appro ached Ch

ief Horn kohl and to ld him that t h e MSRDT was ready

to attempt a rescue. He tes tif ied that Hornkohl consulted with Sheriff Hai k b y r adio, and then instruc ted the divers not to enter the water. However, Hornkohl contradicted this vers io n of events, testifying that he was n eve r aware that MSRDT divers were on the scene

. Sheriff Haik like

wise den ied havin g any such con versa t ion with Hornkoh l. Cole testified that he did not see Chief Hornkohl at the scene.No. 01-2723 Beck, e t al. v. Ha ik, et al. 7

Eugene Beck’s mother, Sharon Beck, eventually ar rived at the scene. Firefighter L

aPoint physically

restrained her t o prevent her from attempting to rescue Eugene herself.

Alth ough the accident scene wasquite close to the sheriff’s office (about a

two-minut

e driv e) , the county divers did not enter th e w at er un ti l 1 1: 05 p. m. , n ea rl y o n e hour after Mr. Beck’s plunge. Cermak and Doering he ld on to a tow bar at tached to the sheriff’s boat. The boat experienced mechan ical difficul

ties with its lights a

nd radio, but it proceeded

into the water. The b oat slow ly canvasse d the river, which was slightly le ss than 3 0 feet deep. The water temperature in the river, as mea sured by the divers’ equipmen t, was 68 degrees. Cermak te stified that this reading
was an average, and that the tempe rature at the river bottom was likely somewhat c older.

Cermak and Doering located

Beck on the floor of the river, closeto the “last seen” point where he had s ubmerged. Cermak graspe d him by

the body

and surf aced wi t h him approxima

tely 14 minutes after the county divers had entered the water. T

he county divers we

re unabl e to hoist Bec

k into the sheriff

’s boat, a nd instea d transf erred h im onto the C oast Guard boa t, with

some difficulty, as will be discussed
mo me nt ar il y. Th e person nel on the boat began CPR and other resuscitat i ve measures as they returned Beck to the shore anda waiting ambulance. However, B eck did not survive.

Chief Monck, the Coast Guard officer who assisted with th e recovery of Beck, testifie d in a depo sition rea d to the jury that the county divers plac ed Beck inside a body bag underwater, and zipped up the bag w

ith Beck in it. Cerma

k te stifi ed somewhat

differently: he

stated that he asked for a poro us mesh bag to use as a sling to lift Beck, but was instead given
a body bag . As the county and Coast Gua rd personnel tried to place Beck partially

into the bag to hoist him

onto the bo at, he testified, the bagfilled with water and he had to cut it open with a knife. Cermak’s testimony that the divers did not place 8 Beck, e t al. v. Ha ik, et al. No. 01-2723

Beck in a ba g und erwate

r was in some tension

with his deposition, inwhich he had said that the bag containing Beck
was “zip[ped] up”

at the time

the count y di ve team li fted him into the bo at.
Gordon Cole, a defense witness, testified u nd er cros sexamination that he saw the county dive personnel lift Beck outof the water by

his ankles. He testified t hat the use of a body bag, and the practice of drawing a victim out of the water feet-firs t , were inconsistent with standard procedures for a live drowning rescue.

Mosack testified that he did not

enter the water on thenight of the ac cidentbecause he feared being arrested under the policy tha t S heriff Haik had allegedly announced. Cole, on the other hand, testified that such a policy would n ot have deterred him from a

tte m pting a rescue if he had thought he had a good chance of resc

uing the victim. He testified that he refrained from ente

ring the water on the nig ht o f June 28 simply because the officers on

the scene had told him that the MSRDT was not needed.

Mosack estimated that if he had dived after Beck, he could have been in

the water by

10:22 p.m., five minutes after Beck submerged. He estima

ted th at he cou

ld then ha ve swum to Beck’s “last see

n” locat ion, broug

ht him to the

surface, a

nd
swumback with

him in three to six minutes. T

hus he wou

ld have been ab le to retu rn Beck to the shore within approximately ten minutes of his original submergence.
The plaintiffs bolstere d their c ase with the expert testimony of Dr. Alan Stein

man, a former Coa st

Guard rear admiral and the author of

numerous

article s in th e f

ields of cold-water drowningand resu scitation . Ste i nman had also studied hundreds of dro wning ca ses in his official capacity at the Coast Gu ard. He opined that if Beck had bee n recovered as late as 24 minutes after

submerging, he probably could have been resuscitated. (In his deposition, he had testified that theNo. 01-2723 Beck, e t al. v. Ha ik, et al. 9

cu t-off time after which Beck probably would not ha v e survived was between 20 and 30 minutes after submersion.)

Steinman testified that his opinion was based on numerous published artic le s, partic

ularly the work

of Dr. Ma

rtin Nemiro ff, a researcher who had c ompiled case studies of cold-water

drowning victims who had been revived after long pe riods of submersion, and concluded that cold water prompt s special physiological r

esponses th at in cr ea se su rv iv ab il it y. In Beck’s favor were thefacts that he was r elati vely young (age 28) and that his accident occurred in cold water (defined as les s than 70 degrees Fahre nheit). Steinman testified tha t contemporary

professional standards, as ad optedby the American Heart Association a

nd other na

tional bod

ies,
re commend

that resc uers shou ld make a ggre ssive ef

forts t o resusci tate cold-water drowning victims who had been submerged

for as long as 60 minutes. This “golden hour” wa s generally viewed as marking

the outer li mi t o f s ur vi va bi li ty.
Steinman admitted on cross- examination that the most pro noun ced

increases in survivability in cold-water drown ings t e nded to occur with victims young er than Beck. He also admitted

that if B eck had

jumped into

the wate r with suicidal intent, as some of the evidence s ugge st ed, then t his would have decreased

his chances of surviv al. Steinma n also admitted that Dr. N emiroff

’s rese arch ha

d identifi ed only about 50 cases of very

long-te rm surviva

l in about 1 500 Coast Guard drowning case stu dies. However, Steinman contended that many of these cases involved periods of submersion muchlonger than the 24-minute period in which, he believed, Beck probably

could have been revived.

The County

counter ed Dr. Ste inman’s te stimo ny with the experttestimon y o f Dr. Christopher Dueker, a diver and a special ist in underwater medicine. D r. Dueker opined that
even if Beck had been recove red within 1 5 minute s of subm erging, it wo uld have b een “unexpected ” for him t

o survive, and he would lik ely have suffered brain d amage. By 30 minu tes, h is chanc es of sur vival wou

ld be “va nishingl y 10 Beck, e t al. v. Ha ik, et al. No. 01-2723

small.” Dr. Dueker criticized as unsc ientific the Nemiroff research on which Dr. Steinma

n had par tially relied, because it was base d simply

on case studies. He noted thatother peerreviewed research in the field supported much shor t er s u rvival times in drowning victims. Dueker also testified, based on his experience as a diver , t hat a diver who, like Mosack or Cole, arrived at an accident scene befor e fu lly suiting up, would normally take 10 to 15 minute s to don his equipment and enter the water.

At the clos e of their case-in-chief, the plaintiffs ca lled SharonBeck, th e decea sed’s mother. Mrs. Beck te stified to
a close re lationship

with her son, and

recounted feeling ang er and frustration at

what she perceived as the county and city’s i ndifference to rescuing him. She testified that she wa s undergoing

ongoing counsel ing for this lo ss. On crossexamination, defense counsel questioned Mrs. Beck ab out her

r elatio nship with her son, eliciting testimony that he ha d an alcohol problemand that the relationship between Beck and his father was sometimes difficult. At one p oint, co unsel asked Mrs. Beck if she was in coun seling for other reasons besides her son’s death. He then elicited, over the strenuous objectionof plainti ffs’ counsel, testimony that Mr. a

nd Mrs. Beck had bee

n accuse d of child

molestati on. These accusations were apparently abandoned af

t er Mrs. Beck passed a li e detect or test. Plaintiffs’ counsel moved for a mistrial, which was denied.

Ina ddition to the evidence presented at trial, as discussed above, the plaintiffs attempted to enter several other pieces of evidence dealing with the county’s response . These were rejected by

the district court. First, plaintiff

s argue d that th ey were entitled to present evidence that the c ounty

destroyed the a

udio dispatch tape of the evening’s even ts despite receiving a Free dom of I nforma tion Act request for it. The dispatch tapes, the plaintiffs contended, would have confirmed t he s equence of eventsonthat nig

ht, and would have included transmissionsNo. 01-2723 Beck, e t al. v. Ha ik, et al. 11

between officers that were absent from the written dispatch log. The county re gularly maintained tapes for thirty day s , thendemagnetized and reused them unle ss a request

to preserve the tape came in. Near the end of the 30-day

period,
anattorney (not a

participant

inthis case ) filed a

request with the Sheriff’s Department for a copy of the tape containing Beck’s accide

nt. Howeve

r, the re quest

was not tr

ansfer red to the dispatcher’s office in time, and the tape was demagnetized
onthe 30th day . After a

separa te hear in g, the district court held that plain

tiffs had provided no eviden

ce of de liberate destruction, and excluded the proffered tes tim ony as irrelevant. Second, plaintiffs proffered a letter that Coast Guard

Chief Monck had written to Cheryl De bano-Griffin, the Manistee County dispatch director, shortly

after the Bec k dr own in g. In the letter, Monck expressed dismay that

the county had fa

iled to notify the Coast Guard of B ec k’s plunge. He stated that the Guard co uld have r

esponde d in two minu

tes, but du

e to the lack of notification, the Guard arrived at the accident 25 minutes later, after a call from a pr ivate citizen. Monck added: “In many instances, the diff erence between the

rescue of a cold water near drowning victim and

a body recove ry is the timely notification of available r escue agenc ies. ” The districtco ur t h ad pr ev io us ly qua shed plai ntiffs’ a ttempt to subpoena Monck, on the ground that he w as a military serviceman. Howeve

r, Mo nck sup ported the letter with an affida vit attesting to its accura cy. The letter had another
no table fea

ture: a handwritten annotation that read, “cut tape.” The plaintiff

s argue d that thisannot ation must have been
ma de by the county

dispatcher who received the letter, and that it was relevant to plaintiffs’ claim of spoliation.

The district court first held this letter inadmissible as he ar sa y. The n, w hen Monck filed his affidavit, the court reconsidered

its ruling and held the letter inadmissible due to
a lack of relevancy . It reasone d that the lette r dealt w ith matters colla teral to Beck ’s dro wning. Moreover, it reasoned,
even if the letter tended to sho w that t he defendants’ rescue 12 Beck, e t al. v. Ha ik, et al. No. 01-2723

efforts were less than ideally

effective, this was not relevant to any of the ele

ments of plaintiffs’ case. Third, the plaintiffs attempted to introduce the op inion testimony of Steven J. Linton, an experienced dive rescue instructor and the a

uthor of many

textbooks a

nd artic le s on the subject. Linton evaluated the municipal policies for water accide nts at the time of Beck ’s drowning , and sev erely criticized the defendants’ actions

. He would have testified that the use of a tow bar was inappropr iate f or a rescue scenar io like Beck’s, in which would-be rescuers had a good “last seen” point. He also cri ticized the count y di vers’ lengthy delay in enter

ing the water, the use of a bo dy b ag to
recover Beck, and the decision to send L aPoi nt’s rescue ambulance, R5, back from the scene before Beck had been recovered. Linton concluded from the county ’s and city’s activities t hat “the officials intended not to rescue Bec k, but simply recover his bod

y .” Finally, L

inton would have testified that if Mosack and

Cole had been permitted

to enter the water and dive a

t the “last seen” p oint, they would like ly have had little

difficul ty f in d ing Beck. L inton opined on causation in hi s de position, indicating that if Mosack and Cole had been allowed to dive, Beck would have sur vived.

As with the Monck letter, the district court excluded Linton’s proffered testimony as irrelevant. It re asoned that “the issue [of whether] this was a perfect rescu e operation”
was not raised by the tri al. More over, the court concluded that “M r. Linton as this case is focused ca nnot help the jury evaluat e th[e] question of whethe r or notthis policy or practice in fact caused death.”

At the close of all evidence, the district court instructed the jury on the thr

ee elements of th e plaintif fs’ cas e as follows: First, that the pl ainti ffs’ decedent, Eugene B eck, was arbitra rily deprived of his right to private rescue pursuant to the [defendants’] custom, p oli cy, ordinanc e, regulation, or decision

preventingprivate

rescue efforts

.No. 01-2723 Beck, e t al. v. Ha ik, et al. 13

Second, that the defendant[s] . . . did not provide a meaning ful alter

native to private rescue efforts

. Th ird, that the d

efenda nt[s’] actions were

a proxim at e cause of th e d am ag es su st ai ne d b y the pl aintiffs ’ decedent, Eugene Be ck.

The plaintiffs objected

to use of the word “preventing” in the first element of this instruction. They noted that this court’s earlier opinion had used the term “hinder” to describe the ki nd of gover nment inte

rfere nce with p

rivate r escue that a plaintiff was required to show. The district cour t ove rruled this objection . Plai ntiffs’ counsel argued in his closing that “preve nt” did n ot n ecessarily

mean physical r

estraint, but merely to “hinder

” or “deter” a rescue

r.
The jury rec eived the case on November 21, 2001. At one pointduring deliber

ations, the jurors sent a no te to the c ourt, asking the court to define t he term “arbitrary ” as used in the instructi ons. At the urging of the plaintiffs, the district court declined to supply a defini tion, telli ng the ju ry that th e term had its ordinary and c ommon meaning in the instructions.

After four hours of deliberation, the jury returned a general verdict for the defendants.

The plaintiffs now a

ppeal, arguing that the district court committed

several evidentiary

errors that collectively re quire
revers al.

II
This case tur

ns in part on the appli cation of

the “har mless error” standar

d that governs mi stakes in the admission or
ex clusio nof evide

nce at tr ial. This s tandard

is embodie d in several provisions. The Federal Rules of Evidence state that
erroneous ru li ng s a re gr ou nd s f or re ve rs al on ly w he n “a substantial right of [a] party is aff ected

. ” Fed. R. Evid. 103(a); Rye v. Black & Decker Mfg. Co. , 889 F.2d 100, 103 14 Beck, e t al. v. Ha ik, et al. No. 01-2723

(6th Cir. 1989). The Federal Rules of Civil Proced ure us e similar language. See Fed. R. Civ. P. 61 ( “No error in the admission or exclusion of evidence . . . is gr ound for . . . disturbing a judgment or order, unless re fu sal to take such actionappears to t

he cou rt inconsistent with substantial justice.”). Another

provision in the same

vein appears in the f ederal judicial c ode, and applies by its

terms to al l procee dings in the courts of appeals: “On the hearing of any appeal . . . , the court shall give judgment . . . without regard to errors

. . . whichdo not affect the substantial rights of the parties.” 28 U.S.C. § 2111. In McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984), the Supreme Court held th at the “substantial rights” languag e of § 2111 “incorporates the same

principle as that fo und in [Civil] Rule 61,” id. at 554, wh

ich spea ks of “sub stantial j ustice.” Fed. R. Civ. P. 61.

The “substantial right” standard may elude ex act definition,

see Cha rles Wright, Arthur Miller, & Mary Kay Ka ne, FederalPractice & Procedure: Civil 2d § 2883 (1995 & Supp. 20 04), but our co

urt has explained it i

n the following te

rms , ina case in which we held that reversible error had occurr ed: Th[e] in qu ir y i nvolve s an assessment of the likelihood that the e rror affected the outcome of the case . As the Supreme Court has d

escribe d the test: “[I]f one cannot
sa y, with fair assurance, . . . that the judgment was not substantia lly swayed by

the error, it is impossib le to conclude that s ubst antia l righ ts were not affected.” Kotteakos v. United

States, 328 U.S

. 750, 765, 6 6 S.Ct. 1239, 1248, 90 L.Ed. 1557 (19 46). Applicat ion of this test is highly sensitive to the unique c ontext of the particular case , including

the one- sided or c losely balanced nature of the evidence bea ring u pon the issue whichthe error arguably

affected, and the centrality of that issue to the ultimate decision.No. 01-2723 Beck, e t al. v. Ha ik, et al. 15

2 Oth er formu lations tha t have a ppe ared are m ore c onsisten t w it h Schrand

. See Ho rn by Pa rks v. M adiso n C oun ty Fisc al Ct.
, 22 F.3d 653, 662 (6th Cir. 1994) (t

ria l cou rt’ s erron eous excl usion of evidence w as Schrand v. Fede ral Pacific

Elec. Co. , 851 F.2d

152, 157 ( 6th Cir. 1988) (quoting Jordan v. Medley , 711 F.3d 211, 218-19 (D.C. Cir. 1983)) (some citations omitted).

That is the traditio nal formulation of the harmless error sta nda rd, deriving

from Kotteakos v. United States . It c alls for reversal when the appellate court lacks a “fair assurance” that the outcome of a trial was not affected by evidentiary
error. We have applied

this standard in civil cases, Schrand
, ibid. , habea s corpus proceed ings, Caldwell v. Bell , 288 F.3d 838, 842 (6th Cir. 2002), and criminal cases, United States v. Haywood
, 280 F.3d 715, 724 (6th Cir . 2002). I t is also followed by most other circuits in both c ivil and criminal
cases alike. E.g. , Bacou Dalloz USA, Inc. v. Cont’l Polymer s, Inc. , 344 F.3d

22, 29-30 (1st Cir. 2003); Taylor v. Va. Union Univ. , 193 F.3d 219, 235 (4th Cir. 1999) (en banc ); Williams

v. U.S. Elevator Corp. , 920 F .2d 1019 , 1022-23 (D.C. Cir. 1990); Aetna Cas. & Sur. Co. v. Gosdin , 803 F.2d 1153, 1159 (11th Cir. 1986).
However, after Schrand
, s everal of our opi

nions in ci

vil
cases stated the following standard: “Even if a mistake has been made regarding

the admission or exclusion of evidence,
a new tria l will not be granted unless the evidence would have caused a different outcome at trial .” Morales v. Am. Honda Motor Co., Inc. , 151 F.3d 5 00, 514 (6 th Cir. 1998 ) (empha sis added); Nida v. Plant

Prot. Ass’n Nat. , 7 F.3d 52 2, 527 (6th Cir. 1993); Polk v. Yel low F reight Sys., Inc. , 876 F.2d 527, 532 (6th Cir. 1989). This version would seem to require an appellant to do more than merely de prive the appellate court of a “fair assurance” that the e rror wa s no t outcomedeterminative, as under Kotteakos

. Inste ad, he mustshow by
a preponderance of the

evidence that the error was outcomedeterminative. 2 16 Beck, e t al. v. Ha ik, et al. No. 01-2723

harmless error when it “worke d no substa ntial pre judic e”); Po lk , 876 F. 2d at 532 (dec lining to re verse when erron eou s evide ntiary de cision “c ould not ha ve resu lted in a d ifferent resu lt at trial”).

3 W hile Schrand

held t hat t he Kotteak os standard app lies to civil and crimi nal cases al ike, we do not inter pret Schrand to say that the prej udice inquiry mus t ignore differences bet ween the two types of cas e. In particular, differen t b urdens of persuas ion apply

in ci vil and crimi nal trials. In a criminal case, where proo f must be b eyon d a re ason able d oub t,

a review ing co urt migh t find itself una ble to say, with “ fair assura nce,” Kott eakos
, 328 U .S. at 765, that a given evidenti ary error, or set of errors,

was harmless. Reve rsal would then b e required . Yet in an otherw ise simi lar civil trial , the same error or errors migh t n ot be enough to shake the co urt’s fair assurance that the jury still would have found against t he appellant in t

he absence of

the er ror, i n li ght of

the l ower, preponderance of the evid ence , standa rd o f proo f. Cf. Schran d , 851 F. 2d at 157 (instr ucting courts to pay at

tent ion to “ the one- sided or closely balan ced Schrand is a published opinion ad op ting the Kotteakos “fair
assur ance” standar

d of harm less evid entiary error in a civ i l
case. Schrand
, 851 F.2d at 1 57; Taylor , 193 F.3d at 235 (classifying

the Sixth Circuit as follo wing Kotteakos in civil cases, citi ng Schrand ; embracing the same rule). To th e extentthe language of our later panel decisions is inconsistent with this holding, we follow Schrand . “[A] pane l of t his [c]ourt cannot overrule the deci sion of another panel. The prior decision

remains c ontrollin

g a uthority unless an inconsistentdecision

of the Un

ited State s Supreme

Co urt requires modification

of the de cision or

this Court sitting en banc overrules the prior decision.” Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir . 2001); accord 6th Cir. R. 206(c).

Ac co rd in gl y, we begin by asking whether the r e was evidentiary

error in the trial. If so, then we “e xa min[e] the procee dings in their

entirety,” Kotteakos
, 328 U.S. a t 762, in the light of the proofs at

trial, to determine whether the errors affected substantial rights. If we do not ha ve a “fa ir
assuran ce” that the trial’s outcome was not altered by error , we must reverse. Schrand , 851 F.2d at 157. 3No. 01-2723 Beck, e t al. v. Ha ik, et al. 17

nature of th e evidence” in dec iding w hether error was ha rmless in a given case)

. III

A district court’s decisions to admit or exclude evidence are reviewed for abuse of discretion. United States v. Cline
, 362 F.3d 343, 348 (6th Cir. 2004). An abuse of discretion occurs when the district c ourt “re lies on cle arly erroneous findings of fa ct, . . . improperly applies the law , . . . or . . . em ploy s a n erroneous legal standard.” Ibid.

Claims of error in jury

instructions require the instructions to be reviewed as a whole, inorder to determine whether they adequately informed the jury of the relevant considerations and provided a basis in law for aiding the jury in reaching its decision. O-So Detroit, Inc. v. Home Ins. Co. , 973 F.2d 498, 502 (6th Cir. 1992 ); Blackwell v. Sun Elec. Corp. , 696 F.2d 1176, 1181 (6th Cir. 1983).

A

Plaintiffs first

c ontend that the district court erred by excluding th e testimon

y of Mr. L inton. The

y a rgue that his evaluation

of the county’s dive e fforts was relevan t to t he question of wheth er the de fendant s pr ovided a “meaningful alternative” to private rescue. They also argue that L inton’s experience qualifie d him to testify about the deg ree of difficul ty the MSRDT d

ivers woul d likely

have fa ced in recovering

Beck, had they

dived after him. When

reviewing proposed expert testimony, the district court must determine whether the evide nce res ts upon a r

eliable foundationand is
re levant. Fed. R. E

vid. 702; Daubert v

. Merrel l Do w Pharms., Inc. , 509 U.S. 579, 597 (1993). A district court abuses its discretion if it bases “i ts rulin g on an erroneous viewof the law or a clearly erroneous assessment of the evidence.” Cooter & Ge ll v. Hartmarx Corp.
, 496 U.S. 384, 405 (1990). 18 Beck, e t al. v. Ha ik, et al. No. 01-2723

We agree with theplaintiffs that some of Linton’s proposed testimony was relevant to the “meaningful alternative” issue, and should have been admitted. To be sure, the district court
was right to observe

that the q uestion of whether or not “th

is
was a perfect rescue ope ra tion” was irrelevant to the case. Our previous opinioninthis matte r drew u pon the an

aly sis in the Seventh Circuit’s opinion in Ross v. United S tates , 9 10 F.2d 1422 (7th Cir. 1990), in describing the constitutional due process cl ai m r ai se d b y the B ecks’ complaint. We adopted Ross ’s formulation: a muni cipa lity cannot “ arbitra

rily cu[t] off private sources of rescue with out p rovid ing a meaningful alternative.” Beck

, 2000 WL 1597942 at *4 (q uoti ng Ross , 910 F.2d at 1431). The concept of “meaningfulness” at issue here must be understood with reference to the underly ing constitutional doctrine of due process, which prohi bits o nly “eg regious or arbitrary

government conduct,” City of Cuyahoga Falls v. Buckeye Cmty. Hope F ound

. , 538 U.S. 188, 198 (2003), not conduct that is merely

ill-rea soned or i lladvised. Thus, a broad rang e of possible dive rescue techniques might qualify

as “meaningful,”even

if they wer

e not the most effectively a dapted for the task.

Inthis case, however, Linton off ered testimony that seve

ral aspects of the county’s r

esponse to the Beck drownin g suggested the county was not
, in fact, engaged in a r escue operati on at all, but only in a body recove ry operati on. This would obviously fall short of being a meaningful alternative to rescue . There

was evid

ence th at th e county had specific ally

decided not to hold itself out as providing water
rescue service s, because

it believe d that it

could not provide
a ti me ly r es po ns e a cr os s t he le ng th of Ma ni st ee Co un ty. Indeed, when Beck’s fall occurre d, the county divers we re unable to enter the water until 58 minutes after Beck’s plunge,
even though the accident site was only two or three mi nutes fromthe sheriff’s office. Moreover, some tria l tes t imony suggested that when the county divers did recover Beck, they placed hi m i n a bo dy b ag an d d ra gge d h im ou t b y his feet. Other te stimony

indicated that the city’s r escue vehicle, R5, had been on the scene b u t had been sent home by ChiefNo. 01-2723 Beck, e t al. v. Ha ik, et al. 19

Hornkohl before Beck’s body was recove

red. Linton would have te stif

ied that these facts were inconsistent with an attempt at live re scue. He

would also

have expla

in ed the “golden hour” protocol recognized in the field of water
rescue: one hour of submersion is the outer limit of survival for a drowni ng victi m. Furthe

rmore, L into n testifie d in his deposition that water rescue operations are rarely runout of sheriff’s departments, as the Manistee County dive tea m was; rather, such operations are more commonly run out of loc al fire departments, which can respond faste r.
Such testimony

meets the general relevanc e requirement of Fed. R. Evid. 401 and the expert opinion requirements of Fed. R. Evid. 702. In light of Linton’s expertise, his testimony could have been helpful to the jury in deciding whether what occurred was a rescueoperation or a recovery operation, and thus whether

it was a meaningfulalternative to private rescue. See Fed. R. Evid. 702 (permitting opinion testimony based on rel evant“scientific, technica l, or other specialized knowledge” if, inter alia , the witness is app ropr iately “qualified as an expert by knowled ge, skill, experience, train ing, or education”). As a water rescue expert, L

inton also could have provided pote

ntially helpful testimony

on whether Mosack and Cole would have been likely to encounter difficul ty in recovering Beck if the

y had entered the water on that night.

We agree with the district court, however, that Linton was notsufficie

ntly quali fied to opine on whether Beck’s life would have been saved if Mosack and C ole had entered the water and sear ched for him . That was properly a medical j udgmen t, and Linton (unlike plaintiffs’ ot her proffered exper

t witness, Dr. Steinman) lacked the medical training to qualify him to rend

er such a judgmen t.

B

Plaintiff s’ second issue concerns the district court’s decisionto exclude, a s irrele vant, Monc

k’s lette r to the c ounty 20 Beck, e t al. v. Ha ik, et al. No. 01-2723

dispatchdirector, in which he complained

that the municipal authorities never notified t he Coa st Guard of the Beck drown ing. We agree that this letter should n ot have b een excluded as irrelevant. The letter is re levant f or reasons similar to those that required admission of part of Mr. Linton’ s te stimony, discussed above. Monck stated tha t the county had notnotified t

he Coast G

uard of B eck’s a

ccident
, even though the Coast Gu

ard boat was on pa

trol and c ould have arrived

at the scene in about two minutes. If believed by t he jury, this evidence would clearly support one of th e plaintiff s’ main theories of the case: that the county was not interested in providing live rescue

at all, on ly bo dy r ec ov er y. Thus, the lette

r is rele vant to the “no meaningful alternative” element of the plaintiffs’ case.

The defendants argue that eve n if the le tter is re levant, i

t still should have been excluded as hearsay . The district court did orig in al ly exclude the letter as hearsay , but later reconsidered

this part of it s rulin g sua sponte and reve rsed it.

The parties have not included in the recor d sufficient document s or trans cripts of the proc eeding s to allow u s to revisit the district court’s thinking on the hearsay issue, which appears to involve a number of complex considerations. As best we can gather

from this vantage point, the plaintiffs
a t tempted to subpoena Chief Monck to testify a bout the matters a ddresse d in

his letter to the county dispatcher . The districtcourt qua shed the s ubpoena . It is

unclear whether it did so because the Coast Gua rd had re fused to c omply with the subpoena (perhaps pursuant to its authori t y as a fe deral agency to “pres cribe r

egulat ions for . . . the con

duct of its employees

[and] . . . the custody, use, and pres ervation of its record s, papers, and property ,” under the so-called “housekeeping

statu te ,” 5 U.S.C. § 301), or for another
reason. Monck later offered an affida vit that authenticated

his letter. The district court then revisited its hearsay ruling, and concluded

that the Coast Guard’s response rendered Monck
an“unavailable” witness within the meaning of Fed. R. Evid. 804, and app arentl y c oncluded that Monck’s testimony

alsoNo. 01-2723 Beck, e t al. v. Ha ik, et al. 21

4 It is an int er esting question whe ther such a refusal by the C oast Guard (if

that is wh at happe ned) wo uld, in fact, render a witness “unavai lable” for

purpos es of

Fed. R. Evid. 804 and/ or 807, the reby

m aking his earlier hearsa y stateme nts po tentially ad missible . T h e agen cy’s say-so d oes n ot co nclud e the m atter of w hethe r the witne ss is unavail able. Rat h er, ou r cou rt has he ld that the “hous ekee ping” statute formili tary

and other federal agenc ies, 5 U.S.C. § 301, does not empower agencies “t o pres cri be r egulatio ns that d irect a p arty to d eliber ately disobey a court order, subpoena, or o ther ju dicial mechanism requiri ng the producti on of in formati on.” In re Bankers Trus t Co. , 61 F. 3d 465, 470 (6th C ir. 199 5); acco rd Exxon Shipping Co. v. Unite d States Dep' t of Interior, 34 F.3d 77 4, 777 (9th Cir.1994), although we have al so held t hat

an agenc y empl oyee c annot be hel d in contempt for relying on such a regula tion, Appeal

of S.E. C. , 226 F.2d 501 , 516 (6th C ir. 195 5).
We express no opinion on this questi on, which is not properly before

us. satisfied an appro

priate h earsay

exceptio n – perhaps the “catch-all” exception of Fed. R. Evid. 807. 4

Inthe end, t

he distr ict co urt explicitly rested its ruling on lack of relevance, not on hearsay . The pa rtie s have not provided a sufficient appellate record for us to dec ide whether the hearsay

issue provides an alternative b as is for affirming the districtcour

t’s r uling . We accordingly

express no opinion
onthis question. The distr ict cour t may choose to revisit the point on remand.

C

The plaintiff

s also challenge the district court’s decision to exclude two letters written to TomKa minski, the Manistee County Administrator, by William Page, a risk consultant with the Michigan Municipal Management Authority (a public-e ntity liability and property

insurer). On

Februrary

8, 1993, Page wr

ote a note

on the cover pag e of a fa x to Kaminski, stating that

“[l]egislation indicates sheriff / police chiefs have duty

to establi sh“recovery

” capacity

. . . but may also c al l upon other agencies to aid in recover y of a body .” Page added: “Re scue operations signify an even higher 22 Beck, e t al. v. Ha ik, et al. No. 01-2723

standard of c are , t rai ni ng, equ ip men t, etc . As I r e ad the statute the[re] is no duty to provide a rescue te am!” The note closed by stating that “the

liability would s ignif

icantly increa se” if the

county create d a resc

ue team.
OnMarch 25, 1993, after a drowning accide nt in the Manistee River, Pa ge sent a ty ped letter to Kaminski “reinf orc[i ng] our risk control opinion that Manistee County should not expand its present serv ices in the Sheriff’s Department

in t h e area

of water recove ry .” Page refer red in this letter to a “position taken an d expresse d . . . by Sheriff Haik” that

the count y should decline to provide official rescue servic e s, and Pag e endors ed this pos ition. Ech oing his p revious note, Page added: “Any agreement to provid e underwater

rescue service would gene r a te consid

erable expenditures in staff

in g, trainin[g], and equipment while at the same time greatly

increasing exposure to liability.”

Plaintiffs proffe

red thes e two lett

ers as a dmissio ns of

an opposing party, admissible unde r the hearsay

exception of Fed. R. Evid. 801(d)(2)(D). They offered to redact the letters to exclude the closing references t o liability , in conformity with Fed. R. E

vid. 411. T

he distric t court he ld the lett

e r s inadmissib le on the grounds that the y were irrelevant and excessive ly

prejudicial. It reasone d

that the le

tters cou ld not be redact e d to remove the references to liability without rendering them misleadingly incomplete. On appeal, the defenda nts argue that the d

istr ict court’s

ruling was corr

ect, and rene w thei r argument, presented below, that the letters we re al so su bj ec t t o e xc lu si on as he ar sa y. We are compelled to conclude that the letters should have been admitted. They wer

e relevant. They

dealt with whether the county had

decided to forego live re scue att

empts in water accide nts. If the jury

believed it had done s o, this would be highly relevant, if not decisive, as to the question of whether the defendants failed

to pro vide a me aningf

ul alternative to private rescue. As to prejudice, the thrust of the letters was to advise the county

not to a dopt water rescue, and to reportNo. 01-2723 Beck, e t al. v. Ha ik, et al. 23

5 See EEOC v. Water

gate at Landmark Condo. , 24 F. 3d 635, 640 (4th Cir. 1994) (holding that stat ements of condominium reside nts on advisory committe es were admis sibl e under Rule 801(d)( 2) (D) i n a former employee’s discriminat ion action against the condominium association); United States exrel . Remte ch, I nc. v. Nat’l

Union F ire Ins. Co. of Pitt sburgh, Pa. , No s. 99-3 503 8, 99 -352 97, 2 000 W L 11 711 39, *3 n.4 (9th Cir. 20 00) (unpublished opinion) (holding a consult ant’s s tatement about his desire to help his client avoid a co ntract to be ad missible against the client

under Rule 801(d)(2)(D )). that Sheriff Haik had taken

such a position. The lette rs could easily have been redacted by

removing the sentences referring to li abili ty witho ut di stort ion o f thei r meani ng.
Defend ants’ argument that the letters were improper hearsay also requires consideration. Fed. R. Evid. 801(d)(2) provides that statements are not hearsay if they are

“offered againsta party

and [are made] . . . by the party ’s a ge nt or servant concerning a matter within the scope of the agency or employ ment, made during the existence of the relationship.” The chief iss

ue is t he natur e of Page’s relationship with the county. Defe

ndants state that

Pa ge wa s s im pl y a

consulta nt, providing risk assessment services as pa r t of the county’s agreement

with the Mich iga n Municipal Management Au th or it y. Assuming this is so, we hold that Page’s stateme nts in the letters still count as “admissions” under Rule 801(d)(2)(D). The statements dea lt di rectly with the subject matter of the Management

Authority ’s contr

act with the county, and we

re expressed during the course of that relationship. Though the re is little precedent on the matter, courts confron

ting simil ar factual situa

tions ha ve tende d to hold contractors and adv is or s t o f al l w it hi n t he “a ge nc y” relation ship contemplated by Rule 801(d) (2)(D). 5 Our court reached a similar conclusion in a criminal case, United States

v. Branham , 97 F.3d 835, 851 (6th Cir. 1996), in which we held that a paid civilian informant was th e government’s “age nt” u nder Rule

801(d)( 2)(D) with respe ct to state ments he made in order to establish a relationship with the defenda nt. See also United Stat es v. Wiedyk , 71 F.3d 602, 24 Beck, e t al. v. Ha ik, et al. No. 01-2723

605-06 (6th

Cir. 1995) (assu ming arguendo that an employee of a professional services company hired by a union

fund was the fund’s “agent” un der Ru le 801(d) (2)(D)with resp ect to his assertions dealin

g with his company’swork for the fund).

Defend ants argue next that the letters woul d have been merely cumulative. They point out that the County ’s former deputy sherif f , Kowalkowski, admi

tted unde

r crossexamination by plaintiffs’ counsel that, pr ior to B eck’s drown ing, th e c ou nt y haddecided not to hold itself out as offeri ng res cue services. However, the letters would have provided additional perspective on the county’s actions. The thrust of Kowalkowski’s testimony was that the county

chose notto offer rescue services “[i]n na me.” Th e letters went fur ther, su gges ting tha

t the coun ty d id not mere ly d

ecline to offer rescue service s by

name , but that it a

ffirmat ively decided, on financial grounds, t o offer only body recovery service s. Th us , while the defendants are correc t that Kow alkowski’s testimony tended to mitigate the e ffec t o f
errone ously

excluding the letters, it did not render the letters merely cumulative.

D
Plaintiffs presented testimony at trial from Cheryl De

banoGriffin, the Manistee County dispatch director. At one point, plaintiff s’ counsel made an

offer of proof, and asked DebanoGriffin questions ai med at developing a foundation for the argument that the county had de liberately destroy ed the dispatcher’s audio tap e o f the events of June 28, 1995. Debano- Griffin

confirmed that the tape was demagne tized by the dispatcher’s office, and thus was unavailable. (Plaintiffs did introduce into evidence the print ed dis patch log. However, this was le ss complete, and the time stamps on the p rinted log were not alway

s contemporaneous with even ts. ) She testifie d that it was the r outine pr actice of the of fice to maintain t apes for thirty da

ys, and then, if no one r

equested preservation of the tape or a copy , to demagnetize and reuse them. She further testified that the Coast Gua rd verba llyNo. 01-2723 Beck, e t al. v. Ha ik, et al. 25

requested the tape from her office during that 30-day period, and tha t she re viewed the tape with Chief Monck and other Coast Guard pe

rsonnel. In a

ddition, a

n atto rne y (

not a participant

in the present litigation) filed a written Freedom of Information

Act requesting the tape from the nig ht of Beck’s death. This FOIA reque st was filed one or two days befor e the expiration of the 30- da y p eriod, but it was filed with the Manistee Co un ty Sheri ff’s Department, rather than the dispatcher’s office. Debano-Griffin testified that her of fice did not rec eiv e th e wr it ten FOIA request until shortly after the expi ratio nof 30 days, and tha t by then the tape ha

d been demagnetized. Plaintiffs argued t hat the Coast Guard’s verbal request , and the sheriff’s failure to convey the written

request to the dis patch office, raised an inference of spoliation of evidence by the County . Th e dist ric t co urt di d no t ag ree . It reasoned that the wri tten request was filed only one or two da ys before the expiration of the 30-day deadline, and was filed with the sheriff’s office rather than the county dispatch off ice. Thus, it concluded, the logical inference was that a n inno centb ureaucratic error had pr evented the request from being received in time to prevent the destruction of the tape.

We review

the district court’s decision to exclude evidence
o f spoliation for abuse of discretion. United States v. Copeland
, 321 F.3d 582, 597 (6th C ir. 20 03). The district court’s reasoninghere wo uld have been within its discretion if the failu re to re spond to the

written r equest w ere t he only evidence of a

po ssible spo liation. H owever , it was not

. Debano- Griffin

also testified

that the dispatchoffice received
a direct verbal request from the Coast Guard

for a copy

of the tape. While th e plaint iffs, during their brief offer of pr oof, did not establish the date of

the rec eipt of thi s verbal

request , it must have

preced ed the wr it ten FOI A reque st, beca

use it occurred in tim e for the tape to be produced intact to the Coas t Gu ard. Debano-Griffin also testified that rece ipt of a verbal r equest was enough to justify

preserving a tape. That being so, it would appear tha t the tape should have been preserved after the regular 3 0-day deadline expi red, re gardle ss of w h ether the written FOI A request had been received by 26 Beck, e t al. v. Ha ik, et al. No. 01-2723

that date. Yet it was not. The fact that Monck’s letter to the
c ounty dispatcher was marked with the written annotation, “cut tape,” c ould

also be viewe d as supporting th e plaintif fs’ argume nts. Spoliation is the intentional destructionof evide nce that is presumed to be unfavorable to the part y respon sible for the destruction. Ibid . The rules that apply to the spoi ling of evid ence an d the range of appropriate sa nctions are defined by state law ; i n t his case, the law of Michigan. Nationwide Mut. Fire Ins. Co. v. Ford Motor Co. , 174 F.3d 801, 804 ( 6th Cir. 1999). Michigan treats evidence of spoliation asrelevant to trial proceedings in a number of respects. “A trial court has the authority . . . to s anction a party for failing to preserve evidence that it know s or should know is rele vant before litigation is commenced.” Bloemen daal v. Town& Country SportsCtr. Inc. , 659 N.W.2d 684, 686 (Mich. Ct. App. 2003). A party may

also be ent i tled to special instructions if he can
ra ise an issue o f fact a s to whethe r a part y ha s failed t

o preserve relevant evidence. See Brenner v. Kolk , 573 N.W.2d 65 (Mich. Ct. App. 1998); Mich . Std. Jury I nstruction 2d 6.01. In theposture i

n which th

is appeal reaches us, we need notconsider whether any of these measures coul d be appropr iate in this case. It is enough to say that there was sufficient evidenc e to entitl e the pla intiffs to pres ent their sp ol ia ti on ev id en ce to th e j ur y.
E
Plaintiffs argue

next that the

court committed re

versible
error when i t allowed the defendants to elicit testimony that Eugene Beck had a criminal record a nd that his parents had been accuse d of child

molestati on. They

argue that this questi oning was ir

releva nt and hig hly prejudic ial. Def

endants argue that it

was proper cross-examination, because plaintiffs had opened the door to it.

SharonBeck, Eugene’s mother, te stified on direct examination that she had sought counseling for her grief andNo. 01-2723 Beck, e t al. v. Ha ik, et al. 27

anger after the death of her son. The plaintiffs had prev iously secured a ruling

from the d

istrict c ourt that f

orbade defenda nts from introducing any evidence of Eugene’s criminal record, unless Mrs. Beck’s testimony opened the door to it as rebu

ttal. In cross-examining Mrs. Be ck about her relation ship with her

son, defense

counsel a sked Mrs. Beck if Eug ene was “difficult” and “got into trouble.” She r eplie d that if so, “he didn’t go out and cause it” and adde d that “he wasn’t convicted on none of them.” Defense counse l then asked Mrs. Beck

directly whethe

r her son had gone to prison, ands he admitted h e had. Plaintiffs’ counsel’ s contemporaneous objection was overruled.

We do not believe this was error. The di str ict court acted within its discretion by implicitly ruling that Mrs. Bec k’s remark that Eug ene “wa sn’t conv ic t ed” ope

ned the do or to counsel’s question. “When a party ope ns up a subject . . . the party can not compla

in on appe al if the o

pposing party introduces evid e nce on the same subject.” United States v. Bender
, 265 F.3d 464, 471 (6th Cir. 2001) (quot ing U nited States v. Ramos, 861 F.2d 4 61, 468-6 9 (6th Cir .19 88)) (holding that def

ense counsel was permitted to cross-examine defend ant a bout her prior drug conviction, notwithstanding district court’s earlier order excluding such testimony, when defendant testifie d on direc

t examina tion that she had never sold drugs).
However, we ca nn ot sa y the sameof the other line of questioni ng challenged by plaintiffs. In the course of questioning Mrs. Beck about her need for coun seling, defense counsel asked whether she had “other upsetting events” in her life besides Eugene’s death. Mrs. Beck replied: “L ike wh at ?” Defens e counsel then asked: “Well, on several occasions y ou and your family

were accused of child mol e sta tion?” Plaintiffs ’ co unsel objected strenuously, but wa s overruled. Plaintiff s’ counsel t

hen mo v ed for a mistrial, which was denied. It emerged that theaccusation had originated with the adoptive parents of Mrs. Beck’s gr and d aughters. An investig atio n wa s dropped after Mr

s. Beck passed a

lie 28 Beck, e t al. v. Ha ik, et al. No. 01-2723

detector test. I t was unc lear whether any charges were eve

r filed.

This questioni

n g wa s both irre levant a nd unduly prejudic ial, and should have been disallowed. It ce rtainly did notsatisfy the require

ment s of Fed. R. Evid. 608, which permitsthe use of

past crimes for imp eachme nt, but only where, among o ther re quireme nts, the evidence indic ates “that
a w itness . . . has been convicted of a crime.” W e hav e cautioned that intro ducin g unrelated evidence of sexual crimes or deviancy

risks “cat er[in g] to the passions of the ju ry” and “

prej udic [ing] [a par

ty ’s] c hance for a fair trial.” United States v. McFadyen-Snider , 552 F.2d 1178, 1182 (6th Cir. 1977). Here, plaintiffs’ choice to present Mrs. B eck’ s test im ony about her love of her son and her need f or grief counselingcould fairly be seen as opening the door t

o questions about the stormy aspects of her rel ationsh ip with her family . But cou

nsel’s qu

estion ab out appar

ently

u ncharged, and cer

tainly unprove n, accu sations of

chil d molest ationby others ag ainst Mrs. Beck simply wa s no t relevant to that subject. The record does not even ind icate that defense co unsel ha d any rea son to believe the charges
we re meritori ous. Ther efore, Mrs. Be ck’s re quest fo r clarification

of counsel’s previous question about “upsetting
even ts” requiring counseling could not have “ope ned the door” to any follow-up question about the accusations of molestation.

The district co urt’s de

nial of a motion for

mistrial is reviewed for an a buse of discretion. United States v. Green
, 305 F.3d 422, 428 (6th Cir. 2002). I n appea ls of civil cases, grants of mistrial on the basis of a single episode of improper questioning or argument have bee n rare. See, e.g. , Vineyard

v. Murray County, Ga. , 990 F.2d 1207 ( 11th Cir . 1993) (affirming

the district court’s decision to deny motion for mistrial in excessive force case under § 1983 when plaintiff’ s counsel urge d jur y in closing ar gument to “send a message” inlight of recent Rodney King r iots; district court gave curative instruction). One court has held that, where anNo. 01-2723 Beck, e t al. v. Ha ik, et al. 29

appellant challenges a denial of mistrial on the basis of eviden ce that the tr

ial cour t held adm

issible, the appell an t faces an “unusually hea

vy appellate bur

den ” of demonstrating that the denia l of mistria

l was an abuse of discretion, on top of dem onstrating that the admission of the evidence wasa n abuseof discretion. Tamko Roofing Prod., Inc. v. Ideal Roofing Co., Ltd. , 282 F.3d 23, 39 (1st Cir. 2002).

For reasons we discuss i n Part IV, infra at pp. 30-32, we need not consider whether the improper

questioni ng of Mrs. Beck was suff iciently prejudic ial by

itself to me

rit a mistrial. It is enough that the error wassignificant and, in conjunction with the other evidentiary e

rrors we have identified, deprived the Bec ks of a fa ir trial.

F
The plaintiffs offer o ne other ar gument meriting discussion. It concer ns th e in structions given as to the first element of their case. The district court instructed t he jury that the plaintiffs had to s ho w that the defendants imposed a policy “preve ntin g” private rescue efforts. The plaintiffs ar gue that this was an inappropr

iate gloss on th e langu age of this court’s previous opinion, thereby improperly inc re asing the plaintiff s’ burden. The plaintiffs urge that the instruction should have stated tha

t defend ants’ pol icies must

“hinder” or “deter” private rescue. They note a ccurately

that this court used these words in some passages of its earlier opinion.

We conclude

that the district court’ s instruct ions adeq uately informed the jury about the l aw and the relevant consider ations. As defendan

ts point out, the district court’s instructions were also grounded in our pr ior opi nion, which used the word “prevent” to describe the ele ments of th e plaintiff’s claim: “

R o ss holds that official action preventing
rescue at te mp ts by a volunteer civilian diver can be arbitrary ina constitutional sense if a

state-sponsored alternative is not availab le when it

counts – and we are constrained to agree.” Beck
, 2000 WL 1597942 at *4 (emphasis added); s ee also 30 Beck, e t al. v. Ha ik, et al. No. 01-2723

Ross , 9 10 F.2d at 1431 (holding that plaintiff stated a constitutional c la im when he alleged that the county “had a policy of arbitrarily

cutting off private sources of resc ue with out pro viding a meaningful alternative”) . It is not
revers ible error

when a c ourt ref

uses to use th e exac t langu age counsel request s in

a jury instruction. Blackwe ll , 696 F.2d at 1183; Thompson v. Underwood , 407 F.2d 994, 997 (6th Cir. 1969). There is , in

any eve nt, great semantic overlapamong the t erms “prevent,” “hinder,” and “de ter.” Compare The American Herit age Dicti onary of t he Engl ish Langu age 1391 (4th ed. 2000) (noting that “prevent” and re lated verbs “mean to sto p or hinder . . ., especially by advanc e planning or action”) with id. at 494 (def ining “deter” as “[t]o prevent or disco urage from acting”) and id. at 830 (noting that “hinder”
me an s “to hold back and often implies stopping or prevention”). The instructions were proper.

The plai nti ffs have offered other assig nments of error, whichwe have con sider ed. Because we find them to be clearly without merit, we see no need to discuss thes e additiona l arguments.

IV
The last iss u e is whether the errors in the trial require
revers al. Examining

the proc eeding s in their e nti re ty, we believe that the su

bstantive issues we

re sign ificantl y contested. The Becks argued forcefully that the County and City arbitra rily prevent ed priva te rescue as a m at te r o f p ol ic y. They presented testimony fr

om MSRDT members Hornkohl and Krause that they

had been threatened with ar r est were they to enter the water at an accident sce ne. Several other local witnesses testified that they had se en or heard of a
memo from the sheriff d

eclarin g wate r accid ents to be cri

me scenes, and s ome te stified that they had hea rd of an a

rrest policy connec ted with that memo. T he individ ual defe ndants, inturn, squa

rely denied adopting such a policy

or threatening the MSRDT members. The defendants presented testimony fromthe local fire chiefs that tended to support their position.No. 01-2723 Beck, e t al. v. Ha ik, et al. 31

Likewise, the plaint iff

s offer ed perti nent evid ence tha t, despite some of the trappings of rescue, t he county

really offered only body

recovery services, and thus offered no meaningful a lter native to private rescue. Cole, a trained diver, an d Dr. Steinman, plaintiffs’ expert witness, testified that several aspects of

the county dive tea

m’s response, such
as the use of the body ba

g , and failure to enter the water for 58 minutes, suggested that they were not serious about rescue. But this aspe ct of the

plaintiff s’ case would have b een bolstered significantly if the

testimony of Linton, the dive expe rt, and the letter from Coast Guard officer Monck ha d been admitted.

Causa tion was perhaps the weakest element of plaintiffs ’
case. However, they

prese nted Dr. Steinman’s expert testimony that Beck probably could have

survived if rescued wi thi n20 to 30 minutes of submerging. I f the jury believe d the testimony of Mosack, it easily could have concluded

that the MS RDT divers could ha ve recovered B eck duri

ng this time. Defendants’ medical expert, Dr. Dueker, testified that it was unlikely that

Beck w ould

have survived even 10 to 15 minutes’ submersion, thus castingdoubt on pla intiffs’ claims of causation. He also offered plausible criticisms of the research that underpinned Dr. Steinman’s opinion. We think it is releva nt, thoug h, that dur

ing its delib erations, the jury asked a questionabout the meaningof th e t er m “ ar bi tr ar il y” inthe jury instructions. This was not part of the definition of the causation

e lement of plaintiffs’ case. The question sugge sts that t he jur y may have tho ugh t plaintiffs had presented enough evidence of ca

usa tion to justify careful at tention to whether they ha d proved the other elements of their case.

We have identified five errors that inured to the detriment of the Becks: (1) the exclusion of Linton’s expert te st im on y; (2) the exclusion of the Coast Guard letter; (3) the exclusion of the lette rs from the county

risk cons

ulta nt, Mr. Page; (4) the exclusion of the spoliation evidence; and (5) the improper questioni ng o f Mrs. Be ck on ac cusation s of child 32 Beck, e t al. v. Ha ik, et al. No. 01-2723

molestation. In ou

r view, e

rrors ( 2) a nd (4) involved affirmative evidence with a significant potential to persuade the jury, and er

ror (5) raised a significant possibility of improper prejudice.

Should these effects be wei ghed tog ether? Our court has adopted the doctr ine of “c umulative error” incriminal

cases: we consider the “combined effect” of multiple tr

ial errors to determine wh et he r t he y are unf airly prejudicia

l. United States

v. Parker , 997 F.2d 219, 222 (6th Cir. 1993). We have not yet had occasion to decide wh ether the same rule app lies in civilcases. However, most of our sister circuits follow the
c umulative-error

doctrine in both civil and cr

iminal c ases

. See, e.g. , Frymire-Brinati v . KPMG Peat Marw ick , 2 F.3d 183, 188 (7th Cir. 1993); Malek v. Fed. Ins. Co. , 994 F.2d 49, 55 (2d Ci r. 1993); Hendler v. United States , 952 F.2d 1364, 1383 (Fed. Ci

r. 1991); United Sta tes v. Riv era , 900 F.2d 1462, 1469 (10th Cir. 199 0); but see SEC v. Infinity Group Co. , 212 F.3d 180, 196 (3d Cir. 2000).

We agree with the ma

jority of courts that the cumulativeerror d octrine should extend to c ivil cases. The “substantial right” standard that

gover ns harmle ss error

analy sis is defined interms of whether errors may have i nfluenced the jury ’s verdict

. Schrand
, 851 F.2 d at 157; see generally Par t II, supra at pp. 13-16. Since a jury re aches its verdict in light of the evidenc e as a whole, it mak es no sens e to try to anal

yz e errors in artificial isolation, when deciding whether they were harmless. Applying th is standard, w e conclu de that we

lack a “ fair assurance” that the v erdic t bel ow was no t substanti ally swayed by error

. Schrand
, ibid. ; Kotteakos , 328 U.S. at 765. The trial was con teste d enou gh that f airness requires a new trial in which the Becks may pr esent the range of relevant evidence denied to them below.No. 01-2723 Beck, e t al. v. Ha ik, et al. 33

V

For the fore going

reasons , the ju dgment i s REVERSED and the case is REMANDE

D for a new trial

.