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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0252P (6th Cir.)

File Name: 04a0252p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

GALEN BECK, as

representative of the estate of

Eugene Beck; and SHARON

BECK,

Plaintiffs-Appellants,

v.

EDWARD A. HAIK,

individually and officially for

Manistee County; and

ROBERT C. HORNKOHL,

individually and officially as

Director of Public Safety for

City of Manistee,

Defendants,

MANISTEE COUNTY; and CITY

OF MANISTEE,

Defendants-Appellees.

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No. 01-2723

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 97-00533—Robert Holmes Bell, Chief District Judge.

Argued: June 18, 2003

2 Beck, et al. v. Haik, et al. No. 01-2723

*

The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation.

Decided and Filed: July 29, 2004 

Before: BOGGS, Chief Judge; GILMAN, Circuit Judge;

and MARBLEY, District Judge.*

_________________

COUNSEL

ARGUED: Mark R. Bendure, BENDURE & THOMAS,

Detroit, Michigan, for Plaintiffs. Joseph Nimako,

CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia,

Michigan, Mary Massaron Ross, PLUNKETT & COONEY,

Detroit, Michigan, for Defendants. ON BRIEF: Mark R.

Bendure, BENDURE & THOMAS, Detroit, Michigan, Grant

W. Parsons, PARSONS, RINGSMUTH, Traverse City,

Michigan, for Plaintiffs. Joseph Nimako, CUMMINGS,

McCLOREY, DAVIS & ACHO, Livonia, Michigan, Mary

Massaron Ross, PLUNKETT & COONEY, Detroit,

Michigan, for Defendants.

_________________

OPINION

_________________

BOGGS, Chief Judge. The plaintiffs in this 42 U.S.C.

§ 1983 civil rights suit appeal from the judgment entered

against them after a jury verdict for the defendants. The

plaintiffs challenge the correctness of several of the district

court’s rulings on the admission of evidence and other trial

matters, and argue that the effect of these rulings substantially

prejudiced their case. Though we do not accept all of the

plaintiffs’ contentions, we agree that a number of errors

occurred, and that these were sufficiently prejudicial to

require a new trial. We therefore reverse and remand.
No. 01-2723 Beck, et al. v. Haik, et al. 3

I

This case arose from the June 28, 1995, drowning death of

Eugene Beck, who dropped from a bridge (apparently after

jumping) into the Manistee River in Manistee, Michigan. The

plaintiffs contend that Mr. Beck died because officials of the

City and County of Manistee, pursuant to a municipal policy,

prevented qualified civilian rescue divers on the scene from

saving him, even though the city and county provided no

meaningful alternative rescue service of their own. In an

earlier, unpublished, opinion, Beck v. Haik, No. 99-1050,

2000 WL 1597942 (6th Cir. Oct. 17, 2000), we held that these

allegations, if proven, were jointly sufficient to establish a

claim under 42 U.S.C. § 1983 for violation of Beck’s due

process rights under the Fourteenth Amendment. 2000 WL

1597942 at *4. We upheld the district court’s grant of

summary judgment dismissing plaintiffs’ other claims. Id. at

*9.

On remand, the district court held a seven-day trial. Each

element of the plaintiffs’ case was significantly contested:

(1) whether the defendants city and county had a policy that

prevented private rescuers from assisting Mr. Beck;

(2) whether the rescue services made available by the

defendants were sufficiently effective to constitute a

“meaningful alternative” to private rescue; and (3) whether

the Becks were able to show causation, by establishing that

Mr. Beck would likely have lived if private rescuers had been

allowed to dive after him.

The following facts emerged at trial. In 1993, the Manistee

County Sheriff’s Department formed a county dive team. The

sheriff’s department concluded after consultation with an

expert that the county was too large to permit this dive team

to be held out 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

and resuscitation of drowning victims. For a time, the only

member of the dive team was then-deputy sheriff Dale

4 Beck, et al. v. Haik, et al. No. 01-2723

1

Sheriff Haik was originally named in the Becks’ complaint as a

defendant in his individual capacity. The district court granted him (and

the other individual defendant, Chief Hornkohl) summary judgment on

the ground of qualified immunity. We affirmed that ruling in the Becks’

previous appeal. Beck, 2000 WL 1597942 at *7.

Kowalkowski, who was not formally trained or certified in

dive rescue. By the time of Mr. Beck’s plunge, it included

several officers who were certified in diving, but not in dive

rescue. 

After a fatal drowning accident in the Manistee River in

1993, a group of trained civilian divers formed a private

rescue organization called the Manistee Search and Rescue

Dive Team (“MSRDT”). The MSRDT entered into a contract

to provide rescue and recovery services to the City of

Manistee as needed. The members of the MSRDT carried

pagers, which the city authorities could use to summon the

MSRDT. A protocol developed whereby the City would page

the county dive team first in case of a water emergency, and

would call out the MSRDT if the county team was likely to

have difficulty responding promptly. However, a city

memorandum on this subject, produced at trial, included a

handwritten annotation that “Sheriff Ed” would “decide”

when the MSRDT would be called out – apparently a

reference to then-Sheriff Edward Haik.1

The plaintiffs presented evidence that some local officials

were hostile to the MSRDT’s activities. Art Krause, the

founder of the MSRDT, testified that Sheriff Haik personally

told him that he would be subject to arrest if he interfered

with the county’s operations at a water accident scene.

Michael Mosack, a Michigan State Police trainee and also a

member of the MSRDT, likewise testified that Haik

threatened him with criminal charges if he entered the water

at an accident scene. Fred LaPoint, a City of Manistee

firefighter and another MSRDT member, testified that he had

seen a memo from Manistee County Sheriff Edward Haik

stating that all water accident scenes were to be treated as
No. 01-2723 Beck, et al. v. Haik, et al. 5

“crime scenes,” and that anyone who entered such a scene

without his permission would be subject to arrest. While no

official copy of the alleged memo was produced at trial,

several other witnesses acknowledged that they had either

seen or heard of such a memo. Sergeant Douglas Cermak of

the Sheriff’s Department dive team testified that he had seen

a “crime scene” memo, and that Haik had instructed him to

take “appropriate action” if the MSRDT interfered with a

county dive operation. On the other hand, the defendants

presented testimony from several local township fire chiefs

who worked with Sheriff Haik, and stated that they had never

heard of such an “arrest policy.” 

Beck and another man, Mark Sander, plunged into the

Manistee River at approximately 10:07 p.m. on June 28,

1995. A bystander saw their fall and immediately called 911.

The county dispatcher called personnel from the Manistee

Police Department, the Manistee Fire Department, and the

Manistee County Sheriff's Department Dive Team (the

“county dive team”) to the scene. 

The Manistee police arrived in time for one of the officers

to see Beck disappear beneath the river’s surface at 10:17

p.m. They notified both Manistee Police Chief Robert

Hornkohl and the county dive team. 

The city did not page the MSRDT that night. However,

Michael Mosack, a member of the MSRDT who was a

Michigan State Police trainee and a certified diver, overheard

the original 911 call reporting Beck’s plunge. Mosack

immediately gathered his diving equipment, put on the lower

half of his wet suit, and drove to the scene. Mosack estimated

that he arrived between 10:19 and 10:22 p.m., no more than

five minutes after Beck went under the water. Another

MSRDT diver, Gordon Cole, learned of the situation by

overhearing the dispatcher’s call to the fire department. Cole

drove to the scene with his equipment and arrived shortly

before Mosack did. 

6 Beck, et al. v. Haik, et al. No. 01-2723

Firefighter LaPoint also responded to the call. LaPoint

drove to the scene in a city rescue ambulance designated R5.

However, LaPoint testified that shortly after he arrived, he

received another call telling him that R5 had been “released.”

This, he said, implied that the accident was no longer

considered a rescue scene, but was instead a body recovery

scene. LaPoint left the scene shortly thereafter.

Meanwhile, a Coast Guard boat arrived on the scene at

10:27 p.m. The local Coast Guard officer, Chief Timothy

Monck, would later testify in a deposition that the Guard had

learned of the incident by a phone call from a private citizen.

The county dive team also responded to the call. ThenSergeant Douglas Cermak, a member of the sheriff’s

department, was driving a patrol car with his partner Jim

Doerning when a call from the dispatcher alerted him that

Beck was in the river. Cermak proceeded to the sheriff’s

office, where he and Doerning gathered their diving

equipment. 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 to drive from the

sheriff’s office to the river and the scene of the accident. 

At the scene, a partially suited-up member of the MSRDT

– apparently Mosack – approached Cermak and asked if the

county team needed help. Cermak told him that the county

“had everything under control.” Moreover, Mosack testified

that he approached Chief Hornkohl and told him that the

MSRDT was ready to attempt a rescue. He testified that

Hornkohl consulted with Sheriff Haik by radio, and then

instructed the divers not to enter the water. However,

Hornkohl contradicted this version of events, testifying that

he was never aware that MSRDT divers were on the scene.

Sheriff Haik likewise denied having any such conversation

with Hornkohl. Cole testified that he did not see Chief

Hornkohl at the scene. 
No. 01-2723 Beck, et al. v. Haik, et al. 7

Eugene Beck’s mother, Sharon Beck, eventually arrived at

the scene. Firefighter LaPoint physically restrained her to

prevent her from attempting to rescue Eugene herself. 

Although the accident scene was quite close to the sheriff’s

office (about a two-minute drive), the county divers did not

enter the water until 11:05 p.m., nearly one hour after Mr.

Beck’s plunge. Cermak and Doering held on to a tow bar

attached to the sheriff’s boat. The boat experienced

mechanical difficulties with its lights and radio, but it

proceeded into the water. The boat slowly canvassed the

river, which was slightly less than 30 feet deep. The water

temperature in the river, as measured by the divers’

equipment, was 68 degrees. Cermak testified that this reading

was an average, and that the temperature at the river bottom

was likely somewhat colder. 

Cermak and Doering located Beck on the floor of the river,

close to the “last seen” point where he had submerged.

Cermak grasped him by the body and surfaced with him

approximately 14 minutes after the county divers had entered

the water. The county divers were unable to hoist Beck into

the sheriff’s boat, and instead transferred him onto the Coast

Guard boat, with some difficulty, as will be discussed

momentarily. The personnel on the boat began CPR and

other resuscitative measures as they returned Beck to the

shore and a waiting ambulance. However, Beck did not

survive. 

Chief Monck, the Coast Guard officer who assisted with the

recovery of Beck, testified in a deposition read to the jury that

the county divers placed Beck inside a body bag underwater,

and zipped up the bag with Beck in it. Cermak testified

somewhat differently: he stated that he asked for a porous

mesh bag to use as a sling to lift Beck, but was instead given

a body bag. As the county and Coast Guard personnel tried

to place Beck partially into the bag to hoist him onto the boat,

he testified, the bag filled with water and he had to cut it open

with a knife. Cermak’s testimony that the divers did not place

8 Beck, et al. v. Haik, et al. No. 01-2723

Beck in a bag underwater was in some tension with his

deposition, in which he had said that the bag containing Beck

was “zip[ped] up” at the time the county dive team lifted him

into the boat.

Gordon Cole, a defense witness, testified under crossexamination that he saw the county dive personnel lift Beck

out of the water by his ankles. He testified that the use of a

body bag, and the practice of drawing a victim out of the

water feet-first, were inconsistent with standard procedures

for a live drowning rescue.

Mosack testified that he did not enter the water on the night

of the accident because he feared being arrested under the

policy that Sheriff Haik had allegedly announced. Cole, on

the other hand, testified that such a policy would not have

deterred him from attempting a rescue if he had thought he

had a good chance of rescuing the victim. He testified that he

refrained from entering the water on the night of 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 estimated that he could then have swum to

Beck’s “last seen” location, brought him to the surface, and

swum back with him in three to six minutes. Thus he would

have been able to return Beck to the shore within

approximately ten minutes of his original submergence. 

The plaintiffs bolstered their case with the expert testimony

of Dr. Alan Steinman, a former Coast Guard rear admiral and

the author of numerous articles in the fields of cold-water

drowning and resuscitation. Steinman had also studied

hundreds of drowning cases in his official capacity at the

Coast Guard. He opined that if Beck had been recovered as

late as 24 minutes after submerging, he probably could have

been resuscitated. (In his deposition, he had testified that the
No. 01-2723 Beck, et al. v. Haik, et al. 9

cut-off time after which Beck probably would not have

survived was between 20 and 30 minutes after submersion.)

Steinman testified that his opinion was based on numerous

published articles, particularly the work of Dr. Martin

Nemiroff, a researcher who had compiled case studies of

cold-water drowning victims who had been revived after long

periods of submersion, and concluded that cold water prompts

special physiological responses that increase survivability. In

Beck’s favor were the facts that he was relatively young (age

28) and that his accident occurred in cold water (defined as

less than 70 degrees Fahrenheit). Steinman testified that

contemporary professional standards, as adopted by the

American Heart Association and other national bodies,

recommend that rescuers should make aggressive efforts to

resuscitate cold-water drowning victims who had been

submerged for as long as 60 minutes. This “golden hour” was

generally viewed as marking the outer limit of survivability.

Steinman admitted on cross-examination that the most

pronounced increases in survivability in cold-water

drownings tended to occur with victims younger than Beck.

He also admitted that if Beck had jumped into the water with

suicidal intent, as some of the evidence suggested, then this

would have decreased his chances of survival. Steinman also

admitted that Dr. Nemiroff’s research had identified only

about 50 cases of very long-term survival in about 1500 Coast

Guard drowning case studies. However, Steinman contended

that many of these cases involved periods of submersion

much longer than the 24-minute period in which, he believed,

Beck probably could have been revived. 

The County countered Dr. Steinman’s testimony with the

expert testimony of Dr. Christopher Dueker, a diver and a

specialist in underwater medicine. Dr. Dueker opined that

even if Beck had been recovered within 15 minutes of

submerging, it would have been “unexpected” for him to

survive, and he would likely have suffered brain damage. By

30 minutes, his chances of survival would be “vanishingly

10 Beck, et al. v. Haik, et al. No. 01-2723

small.” Dr. Dueker criticized as unscientific the Nemiroff

research on which Dr. Steinman had partially relied, because

it was based simply on case studies. He noted that other peerreviewed research in the field supported much shorter

survival times in drowning victims. Dueker also testified,

based on his experience as a diver, that a diver who, like

Mosack or Cole, arrived at an accident scene before fully

suiting up, would normally take 10 to 15 minutes to don his

equipment and enter the water. 

At the close of their case-in-chief, the plaintiffs called

Sharon Beck, the deceased’s mother. Mrs. Beck testified to

a close relationship with her son, and recounted feeling anger

and frustration at what she perceived as the county and city’s

indifference to rescuing him. She testified that she was

undergoing ongoing counseling for this loss. On crossexamination, defense counsel questioned Mrs. Beckabout her

relationship with her son, eliciting testimony that he had an

alcohol problem and that the relationship between Beck and

his father was sometimes difficult. At one point, counsel

asked Mrs. Beck if she was in counseling for other reasons

besides her son’s death. He then elicited, over the strenuous

objection of plaintiffs’ counsel, testimony that Mr. and Mrs.

Beck had been accused of child molestation. These

accusations were apparently abandoned after Mrs. Beck

passed a lie detector test. Plaintiffs’ counsel moved for a

mistrial, which was denied.

In addition 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, plaintiffs argued that they were entitled to present

evidence that the county destroyed the audio dispatch tape of

the evening’s events despite receiving a Freedom of

Information Act request for it. The dispatch tapes, the

plaintiffs contended, would have confirmed the sequence of

events on that night, and would have included transmissions
No. 01-2723 Beck, et al. v. Haik, et al. 11

between officers that were absent from the written dispatch

log. The county regularly maintained tapes for thirty days,

then demagnetized and reused them unless a request to

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

an attorney (not a participant in this case) filed a request with

the Sheriff’s Department for a copy of the tape containing

Beck’s accident. However, the request was not transferred to

the dispatcher’s office in time, and the tape was demagnetized

on the 30th day. After a separate hearing, the district court

held that plaintiffs had provided no evidence of deliberate

destruction, and excluded the proffered testimony as

irrelevant. 

Second, plaintiffs proffered a letter that Coast Guard Chief

Monck had written to Cheryl Debano-Griffin, the Manistee

County dispatch director, shortly after the Beck drowning. In

the letter, Monck expressed dismay that the county had failed

to notify the Coast Guard of Beck’s plunge. He stated that

the Guard could have responded in two minutes, but due to

the lack of notification, the Guard arrived at the accident 25

minutes later, after a call from a private citizen. Monck

added: “In many instances, the difference between the rescue

of a cold water near drowning victim and a body recovery is

the timely notification of available rescue agencies.” The

district court had previously quashed plaintiffs’ attempt to

subpoena Monck, on the ground that he was a military

serviceman. However, Monck supported the letter with an

affidavit attesting to its accuracy. The letter had another

notable feature: a handwritten annotation that read, “cut tape.”

The plaintiffs argued that this annotation must have been

made 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

hearsay. Then, when Monck filed his affidavit, the court

reconsidered its ruling and held the letter inadmissible due to

a lack of relevancy. It reasoned that the letter dealt with

matters collateral to Beck’s drowning. Moreover, it reasoned,

even if the letter tended to show that the defendants’ rescue

12 Beck, et al. v. Haik, et al. No. 01-2723

efforts were less than ideally effective, this was not relevant

to any of the elements of plaintiffs’ case. 

Third, the plaintiffs attempted to introduce the opinion

testimony of Steven J. Linton, an experienced dive rescue

instructor and the author of many textbooks and articles on

the subject. Linton evaluated the municipal policies for water

accidents at the time of Beck’s drowning, and severely

criticized the defendants’ actions. He would have testified

that the use of a tow bar was inappropriate for a rescue

scenario like Beck’s, in which would-be rescuers had a good

“last seen” point. He also criticized the county divers’

lengthy delay in entering the water, the use of a body bag to

recover Beck, and the decision to send LaPoint’s rescue

ambulance, R5, back from the scene before Beck had been

recovered. Linton concluded from the county’s and city’s

activities that “the officials intended not to rescue Beck, but

simply recover his body.” Finally, Linton would have

testified that if Mosack and Cole had been permitted to enter

the water and dive at the “last seen” point, they would likely

have had little difficulty finding Beck. Linton opined on

causation in his deposition, indicating that if Mosack and

Cole had been allowed to dive, Beck would have survived.

As with the Monck letter, the district court excluded

Linton’s proffered testimony as irrelevant. It reasoned that

“the issue [of whether] this was a perfect rescue operation”

was not raised by the trial. Moreover, the court concluded

that “Mr. Linton as this case is focused cannot help the jury

evaluate th[e] question of whether or not this policy or

practice in fact caused death.”

At the close of all evidence, the district court instructed the

jury on the three elements of the plaintiffs’ case as follows:

First, that the plaintiffs’ decedent, Eugene Beck, was

arbitrarily deprived of his right to private rescue pursuant

to the [defendants’] custom, policy, ordinance,

regulation, or decision preventing private rescue efforts.
No. 01-2723 Beck, et al. v. Haik, et al. 13

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

meaningful alternative to private rescue efforts.

Third, that the defendant[s’] actions were a proximate

cause of the damages sustained by the plaintiffs’

decedent, Eugene Beck.

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

kind of government interference with private rescue that a

plaintiff was required to show. The district court overruled

this objection. Plaintiffs’ counsel argued in his closing that

“prevent” did not necessarily mean physical restraint, but

merely to “hinder” or “deter” a rescuer.

The jury received the case on November 21, 2001. At one

point during deliberations, the jurors sent a note to the court,

asking the court to define the term “arbitrary” as used in the

instructions. At the urging of the plaintiffs, the district court

declined to supply a definition, telling the jury that the term

had its ordinary and common meaning in the instructions. 

After four hours of deliberation, the jury returned a general

verdict for the defendants. 

The plaintiffs now appeal, arguing that the district court

committed several evidentiary errors that collectively require

reversal.

II

This case turns in part on the application of the “harmless

error” standard that governs mistakes in the admission or

exclusion of evidence at trial. This standard is embodied in

several provisions. The Federal Rules of Evidence state that

erroneous rulings are grounds for reversal only when “a

substantial right of [a] party is affected.” Fed. R. Evid.

103(a); Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 103

14 Beck, et al. v. Haik, et al. No. 01-2723

(6th Cir. 1989). The Federal Rules of Civil Procedure use

similar language. See Fed. R. Civ. P. 61 (“No error in the

admission or exclusion of evidence . . . is ground for . . .

disturbing a judgment or order, unless refusal to take such

action appears to the court inconsistent with substantial

justice.”). Another provision in the same vein appears in the

federal judicial code, and applies by its terms to all

proceedings in the courts of appeals: “On the hearing of any

appeal . . . , the court shall give judgment . . . without regard

to errors . . . which do 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 that the “substantial rights” language of § 2111

“incorporates the same principle as that found in [Civil] Rule

61,” id. at 554, which speaks of “substantial justice.” Fed. R.

Civ. P. 61. 

The “substantial right” standard may elude exact definition,

see Charles Wright, Arthur Miller, & Mary Kay Kane,

Federal Practice & Procedure: Civil 2d § 2883 (1995 & Supp.

2004), but our court has explained it in the following terms,

in a case in which we held that reversible error had occurred:

Th[e] inquiry involves an assessment of the likelihood

that the error affected the outcome of the case. As the

Supreme Court has described the test: “[I]f one cannot

say, with fair assurance, . . . that the judgment was not

substantially swayed by the error, it is impossible to

conclude that substantial rights were not affected.”

Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct.

1239, 1248, 90 L.Ed. 1557 (1946). Application of this

test is highly sensitive to the unique context of the

particular case, including the one-sided or closely

balanced nature of the evidence bearing upon the issue

which the error arguably affected, and the centrality of

that issue to the ultimate decision.
No. 01-2723 Beck, et al. v. Haik, et al. 15

2

Other formulations that have appeared are more consistent with

Schrand. See Horn by Parks v. Madison County Fiscal Ct., 22 F.3d 653,

662 (6th Cir. 1994) (trial court’s erroneous exclusion of evidence was

Schrand v. Federal 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 traditional formulation of the harmless error

standard, deriving from Kotteakos v. United States. It calls

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., habeas corpus proceedings, 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). It is also

followed by most other circuits in both civil and criminal

cases alike. E.g., Bacou Dalloz USA, Inc. v. Cont’l Polymers,

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, several of our opinions in civil

cases stated the following standard: “Even if a mistake has

been made regarding the admission or exclusion of evidence,

a new trial 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 500, 514 (6th Cir. 1998) (emphasis

added); Nida v. Plant Prot. Ass’n Nat., 7 F.3d 522, 527 (6th

Cir. 1993); Polk v. Yellow Freight Sys., Inc., 876 F.2d 527,

532 (6th Cir. 1989). This version would seem to require an

appellant to do more than merely deprive the appellate court

of a “fair assurance” that the error was not outcomedeterminative, as under Kotteakos. Instead, he must show by

a preponderance of the evidence that the error was outcomedeterminative.2

16 Beck, et al. v. Haik, et al. No. 01-2723

harmless error when it “worked no substantial prejudice”); Polk, 876 F.2d

at 532 (declining to reverse when erroneous evidentiary decision “could

not have resulted in a different result at trial”). 

3While Schrand held that the Kotteakos standard applies to civil and

criminal cases alike, we do not interpret Schrand to say that the prejudice

inquiry must ignore differences between the two types of case. In

particular, different burdens of persuasion apply in civil and criminal

trials. In a criminal case, where proof must be beyond a reasonable doubt,

a reviewing court might find itself unable to say, with “fair assurance,”

Kotteakos, 328 U.S. at 765, that a given evidentiary error, or set of errors,

was harmless. Reversal would then be required. Yet in an otherwise

similar civil trial, the same error or errors might not be enough to shake

the court’s fair assurance that the jury still would have found against the

appellant in the absence of the error, in light of the lower, preponderance

of the evidence, standard of proof. Cf. Schrand, 851 F.2d at 157

(instructing courts to pay attention to “the one-sided or closely balanced

Schrand is a published opinion adopting the Kotteakos“fair

assurance” standard of harmless evidentiary error in a civil

case. Schrand, 851 F.2d at 157; Taylor, 193 F.3d at 235

(classifying the Sixth Circuit as following Kotteakos in civil

cases, citing Schrand; embracing the same rule). To the

extent the language of our later panel decisions is inconsistent

with this holding, we follow Schrand. “[A] panel of this

[c]ourt cannot overrule the decision of another panel. The

prior decision remains controlling authority unless an

inconsistent decision of the United States Supreme Court

requires modification of the decision 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). 

Accordingly, we begin by asking whether there was

evidentiary error in the trial. If so, then we “examin[e] the

proceedings in their entirety,” Kotteakos, 328 U.S. at 762, in

the light of the proofs at trial, to determine whether the errors

affected substantial rights. If we do not have a “fair

assurance” that the trial’s outcome was not altered by error,

we must reverse. Schrand, 851 F.2d at 157.3
No. 01-2723 Beck, et al. v. Haik, et al. 17

nature of the evidence” in deciding whether error was harmless 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 court “relies on clearly erroneous findings of

fact, . . . improperly applies the law, . . . or . . . employs an

erroneous legal standard.” Ibid. 

Claims of error in jury instructions require the instructions

to be reviewed as a whole, in order 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 contend that the district court erred by

excluding the testimony of Mr. Linton. They argue that his

evaluation of the county’s dive efforts was relevant to the

question of whether the defendants provided a “meaningful

alternative” to private rescue. They also argue that Linton’s

experience qualified him to testify about the degree of

difficulty the MSRDT divers would likely have faced in

recovering Beck, had they dived after him. When reviewing

proposed expert testimony, the district court must determine

whether the evidence rests upon a reliable foundation and is

relevant. Fed. R. Evid. 702; Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 597 (1993). A district court

abuses its discretion if it bases “its ruling on an erroneous

view of the law or a clearly erroneous assessment of the

evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

405 (1990). 

18 Beck, et al. v. Haik, et al. No. 01-2723

We agree with the plaintiffs 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 question of whether or not “this

was a perfect rescue operation” was irrelevant to the case.

Our previous opinion in this matter drew upon the analysis in

the Seventh Circuit’s opinion in Ross v. United States, 910

F.2d 1422 (7th Cir. 1990), in describing the constitutional due

process claim raised by the Becks’ complaint. We adopted

Ross’s formulation: a municipality cannot “arbitrarily cu[t]

off private sources of rescue without providing a meaningful

alternative.” Beck, 2000 WL 1597942 at *4 (quoting Ross,

910 F.2d at 1431). The concept of “meaningfulness” at issue

here must be understood with reference to the underlying

constitutional doctrine of due process, which prohibits only

“egregious or arbitrary government conduct,” City of

Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.

188, 198 (2003), not conduct that is merely ill-reasoned or illadvised. Thus, a broad range of possible dive rescue

techniques might qualify as “meaningful,” even if they were

not the most effectively adapted for the task. 

In this case, however, Linton offered testimony that several

aspects of the county’s response to the Beck drowning

suggested the county was not, in fact, engaged in a rescue

operation at all, but only in a body recovery operation. This

would obviously fall short of being a meaningful alternative

to rescue. There was evidence that the county had

specifically decided not to hold itself out as providing water

rescue services, because it believed that it could not provide

a timely response across the length of Manistee County.

Indeed, when Beck’s fall occurred, the county divers were

unable to enter the water until 58 minutes after Beck’s plunge,

even though the accident site was only two or three minutes

from the sheriff’s office. Moreover, some trial testimony

suggested that when the county divers did recover Beck, they

placed him in a body bag and dragged him out by his feet.

Other testimony indicated that the city’s rescue vehicle, R5,

had been on the scene but had been sent home by Chief
No. 01-2723 Beck, et al. v. Haik, et al. 19

Hornkohl before Beck’s body was recovered. Linton would

have testified that these facts were inconsistent with an

attempt at live rescue. He would also have explained the

“golden hour” protocol recognized in the field of water

rescue: one hour of submersion is the outer limit of survival

for a drowning victim. Furthermore, Linton testified in his

deposition that water rescue operations are rarely run out of

sheriff’s departments, as the Manistee County dive team was;

rather, such operations are more commonly run out of local

fire departments, which can respond faster. 

Such testimony meets the general relevance 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 rescue operation or a recovery operation, and

thus whether it was a meaningful alternative to private rescue.

See Fed. R. Evid. 702 (permitting opinion testimony based on

relevant “scientific, technical, or other specialized

knowledge” if, inter alia, the witness is appropriately

“qualified as an expert by knowledge, skill, experience,

training, or education”). As a water rescue expert, Linton also

could have provided potentially helpful testimony on whether

Mosack and Cole would have been likely to encounter

difficulty in recovering Beck if they had entered the water on

that night. 

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

not sufficiently qualified to opine on whether Beck’s life

would have been saved if Mosack and Cole had entered the

water and searched for him. That was properly a medical

judgment, and Linton (unlike plaintiffs’ other profferedexpert

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

him to render such a judgment.

B

Plaintiffs’ second issue concerns the district court’s

decision to exclude, as irrelevant, Monck’s letter to the county

20 Beck, et al. v. Haik, et al. No. 01-2723

dispatch director, in which he complained that the municipal

authorities never notified the Coast Guard of the Beck

drowning. We agree that this letter should not have been

excluded as irrelevant. The letter is relevant for reasons

similar to those that required admission of part of Mr.

Linton’s testimony, discussed above. Monck stated that the

county had not notified the Coast Guard of Beck’s accident,

even though the Coast Guard boat was on patrol and could

have arrived at the scene in about two minutes. If believed by

the jury, this evidence would clearly support one of the

plaintiffs’ main theories of the case: that the county was not

interested in providing live rescue at all, only body recovery.

Thus, the letter is relevant to the “no meaningful alternative”

element of the plaintiffs’ case.

The defendants argue that even if the letter is relevant, it

still should have been excluded as hearsay. The district court

did originally exclude the letter as hearsay, but later

reconsidered this part of its ruling sua sponte and reversed it.

The parties have not included in the record sufficient

documents or transcripts of the proceedings to allow us 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

attempted to subpoena Chief Monck to testify about the

matters addressed in his letter to the county dispatcher. The

district court quashed the subpoena. It is unclear whether it

did so because the Coast Guard had refused to comply with

the subpoena (perhaps pursuant to its authority as a federal

agency to “prescribe regulations for . . . the conduct of its

employees [and] . . . the custody, use, and preservation of its

records, papers, and property,” under the so-called

“housekeeping statute,” 5 U.S.C. § 301), or for another

reason. Monck later offered an affidavit 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 apparently concluded that Monck’s testimony also
No. 01-2723 Beck, et al. v. Haik, et al. 21

4

It is an interesting question whether such a refusal by the Coast

Guard (if that is what happened) would, in fact, render a witness

“unavailable” for purposes of Fed. R. Evid. 804 and/or 807, thereby

making his earlier hearsay statements potentially admissible. The

agency’s say-so does not conclude the matter of whether the witness is

unavailable. Rather, our court has held that the “housekeeping” statute

for military and other federal agencies, 5 U.S.C. § 301, does not empower

agencies “to prescribe regulations that direct a party to deliberately

disobey a court order, subpoena, or other judicial mechanism requiring

the production of information.” In re Bankers Trust Co., 61 F.3d 465,

470 (6th Cir. 1995); accord Exxon Shipping Co. v. United States Dep't of

Interior, 34 F.3d 774, 777 (9th Cir.1994), although we have also held that

an agency employee cannot be held in contempt for relying on such a

regulation, Appeal of S.E.C., 226 F.2d 501, 516 (6th Cir. 1955). 

We express no opinion on this question, which is not properly before

us.

satisfied an appropriate hearsay exception – perhaps the

“catch-all” exception of Fed. R. Evid. 807.4

In the end, the district court explicitly rested its ruling on

lack of relevance, not on hearsay. The parties have not

provided a sufficient appellate record for us to decide whether

the hearsay issue provides an alternative basis for affirming

the district court’s ruling. We accordingly express no opinion

on this question. The district court may choose to revisit the

point on remand.

C

The plaintiffs also challenge the district court’s decision to

exclude two letters written to Tom Kaminski, the Manistee

County Administrator, by William Page, a risk consultant

with the Michigan Municipal Management Authority (a

public-entity liability and property insurer). On Februrary 8,

1993, Page wrote a note on the cover page of a fax to

Kaminski, stating that “[l]egislation indicates sheriff / police

chiefs have duty to establish “recovery” capacity . . . but may

also call upon other agencies to aid in recovery of a body.”

Page added: “Rescue operations signify an even higher

22 Beck, et al. v. Haik, et al. No. 01-2723

standard of care, training, equipment, etc. As I read the

statute the[re] is no duty to provide a rescue team!” The note

closed by stating that “the liability would significantly

increase” if the county created a rescue team.

On March 25, 1993, after a drowning accident in the

Manistee River, Page sent a typed letter to Kaminski

“reinforc[ing] our risk control opinion that Manistee County

should not expand its present services in the Sheriff’s

Department in the area of water recovery.” Page referred in

this letter to a “position taken and expressed . . . by Sheriff

Haik” that the county should decline to provide official rescue

services, and Page endorsed this position. Echoing his

previous note, Page added: “Any agreement to provide

underwater rescue service would generate considerable

expenditures in staffing, trainin[g], and equipment while at

the same time greatly increasing exposure to liability.”

Plaintiffs proffered these two letters as admissions of an

opposing party, admissible under the hearsay exception of

Fed. R. Evid. 801(d)(2)(D). They offered to redact the letters

to exclude the closing references to liability, in conformity

with Fed. R. Evid. 411. The district court held the letters

inadmissible on the grounds that they were irrelevant and

excessively prejudicial. It reasoned that the letters could not

be redacted to remove the references to liability without

rendering them misleadingly incomplete. On appeal, the

defendants argue that the district court’s ruling was correct,

and renew their argument, presented below, that the letters

were also subject to exclusion as hearsay.

We are compelled to conclude that the letters should have

been admitted. They were relevant. They dealt with whether

the county had decided to forego live rescue attempts in water

accidents. If the jury believed it had done so, this would be

highly relevant, if not decisive, as to the question of whether

the defendants failed to provide a meaningful alternative to

private rescue. As to prejudice, the thrust of the letters was

to advise the county not to adopt water rescue, and to report
No. 01-2723 Beck, et al. v. Haik, et al. 23

5

See EEOC v. Watergate at Landmark Condo., 24 F.3d 635, 640 (4th

Cir. 1994) (holding that statements of condominium residents on advisory

committees were admissible under Rule 801(d)(2)(D) in a former

employee’s discrimination action against the condominium association);

United States ex rel. Remtech, Inc. v. Nat’l Union Fire Ins. Co. of

Pittsburgh, Pa., Nos. 99-35038, 99-35297, 2000 WL 1171139, *3 n.4

(9th Cir. 2000) (unpublished opinion) (holding a consultant’s statement

about his desire to help his client avoid a contract to be admissible against

the client under Rule 801(d)(2)(D)).

that Sheriff Haik had taken such a position. The letters could

easily have been redacted by removing the sentences referring

to liability without distortion of their meaning.

Defendants’ 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

against a party and [are made] . . . by the party’s agent or

servant concerning a matter within the scope of the agency or

employment, made during the existence of the relationship.”

The chief issue is the nature of Page’s relationship with the

county. Defendants state that Page was simply a consultant,

providing risk assessment services as part of the county’s

agreement with the Michigan Municipal Management

Authority. Assuming this is so, we hold that Page’s

statements in the letters still count as “admissions” under

Rule 801(d)(2)(D). The statements dealt directly with the

subject matter of the Management Authority’s contract with

the county, and were expressed during the course of that

relationship. Though there is little precedent on the matter,

courts confronting similar factual situations have tended to

hold contractors and advisors to fall within the “agency”

relationship 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 the government’s

“agent” under Rule 801(d)(2)(D) with respect to statements

he made in order to establish a relationship with the

defendant. See also United States v. Wiedyk, 71 F.3d 602,

24 Beck, et al. v. Haik, et al. No. 01-2723

605-06 (6th Cir. 1995) (assuming arguendo that an employee

of a professional services company hired by a union fund was

the fund’s “agent” under Rule 801(d)(2)(D) with respect to

his assertions dealing with his company’s work for the fund).

Defendants argue next that the letters would have been

merely cumulative. They point out that the County’s former

deputy sheriff, Kowalkowski, admitted under crossexamination by plaintiffs’ counsel that, prior to Beck’s

drowning, the county had decided not to hold itself out as

offering rescue 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

not to offer rescue services “[i]n name.” The letters went

further, suggesting that the county did not merely decline to

offer rescue services by name, but that it affirmatively

decided, on financial grounds, to offer only body recovery

services. Thus, while the defendants are correct that

Kowalkowski’s testimony tended to mitigate the effect of

erroneously excluding the letters, it did not render the letters

merely cumulative. 

D

Plaintiffs presented testimony at trial from Cheryl DebanoGriffin, the Manistee County dispatch director. At one point,

plaintiffs’ counsel made an offer of proof, and asked DebanoGriffin questions aimed at developing a foundation for the

argument that the county had deliberately destroyed the

dispatcher’s audio tape of the events of June 28, 1995. 

Debano-Griffin confirmed that the tape was demagnetized by

the dispatcher’s office, and thus was unavailable. (Plaintiffs

did introduce into evidence the printed dispatch log.

However, this was less complete, and the time stamps on the

printed log were not always contemporaneous with events.)

She testified that it was the routine practice of the office to

maintain tapes for thirty days, and then, if no one requested

preservation of the tape or a copy, to demagnetize and reuse

them. She further testified that the Coast Guard verbally
No. 01-2723 Beck, et al. v. Haik, et al. 25

requested the tape from her office during that 30-day period,

and that she reviewed the tape with Chief Monck and other

Coast Guard personnel. In addition, an attorney (not a

participant in the present litigation) filed a written Freedom of

Information Act requesting the tape from the night of Beck’s

death. This FOIA request was filed one or two days before

the expiration of the 30-day period, but it was filed with the

Manistee County Sheriff’s Department, rather than the

dispatcher’s office. Debano-Griffin testified that her office

did not receive the written FOIA request until shortly after the

expiration of 30 days, and that by then the tape had been

demagnetized. Plaintiffs argued thatthe Coast Guard’s verbal

request, and the sheriff’s failure to convey the written request

to the dispatch office, raised an inference of spoliation of

evidence by the County. The district court did not agree. It

reasoned that the written request was filed only one or two

days before the expiration of the 30-day deadline, and was

filed with the sheriff’s office rather than the county dispatch

office. Thus, it concluded, the logical inference was that an

innocent bureaucratic error had prevented the request from

being received in time to prevent the destruction of the tape.

We review the district court’s decision to exclude evidence

of spoliation for abuse of discretion. United States v.

Copeland, 321 F.3d 582, 597 (6th Cir. 2003). The district

court’s reasoning here would have been within its discretion

if the failure to respond to the written request were the only

evidence of a possible spoliation. However, it was not.

Debano-Griffin also testified that the dispatch office received

a direct verbal request from the Coast Guard for a copy of the

tape. While the plaintiffs, during their brief offer of proof,

did not establish the date of the receipt of this verbal request,

it must have preceded the written FOIA request, because it

occurred in time for the tape to be produced intact to the

Coast Guard. Debano-Griffin also testified that receipt of a

verbal request was enough to justify preserving a tape. That

being so, it would appear that the tape should have been

preserved after the regular 30-daydeadline expired, regardless

of whether the written FOIA request had been received by

26 Beck, et al. v. Haik, et al. No. 01-2723

that date. Yet it was not. The fact that Monck’s letter to the

county dispatcher was marked with the written annotation,

“cut tape,” could also be viewed as supporting the plaintiffs’

arguments.

Spoliation is the intentional destruction of evidence that is

presumed to be unfavorable to the party responsible for the

destruction. Ibid. The rules that apply to the spoiling of

evidence and the range of appropriate sanctions are defined

by state law; in this 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 as relevant

to trial proceedings in a number of respects. “A trial court has

the authority . . . to sanction a party for failing to preserve

evidence that it knows or should know is relevant before

litigation is commenced.” Bloemendaal v. Town & Country

Sports Ctr. Inc., 659 N.W.2d 684, 686 (Mich. Ct. App. 2003).

A party may also be entitled to special instructions if he can

raise an issue of fact as to whether a party has failed to

preserve relevant evidence. See Brenner v. Kolk, 573 N.W.2d

65 (Mich. Ct. App. 1998); Mich. Std. Jury Instruction 2d

6.01. In the posture in which this appeal reaches us, we need

not consider whether any of these measures could be

appropriate in this case. It is enough to say that there was

sufficient evidence to entitle the plaintiffs to present their

spoliation evidence to the jury.

E

Plaintiffs argue next that the court committed reversible

error when it allowed the defendants to elicit testimony that

Eugene Beck had a criminal record and that his parents had

been accused of child molestation. They argue that this

questioningwasirrelevant and highly prejudicial. Defendants

argue that it was proper cross-examination, because plaintiffs

had opened the door to it. 

Sharon Beck, Eugene’s mother, testified on direct

examination that she had sought counseling for her grief and
No. 01-2723 Beck, et al. v. Haik, et al. 27

anger after the death of her son. The plaintiffs had previously

secured a ruling from the district court that forbade

defendants from introducing any evidence of Eugene’s

criminal record, unless Mrs. Beck’s testimony opened the

door to it as rebuttal. In cross-examining Mrs. Beck about her

relationship with her son, defense counsel asked Mrs. Beck if

Eugene was “difficult” and “got into trouble.” She replied

that if so, “he didn’t go out and cause it” and added that “he

wasn’t convicted on none of them.” Defense counsel then

asked Mrs. Beck directly whether her son had gone to prison,

and she admitted he had. Plaintiffs’ counsel’s

contemporaneous objection was overruled. 

We do not believe this was error. The district court acted

within its discretion by implicitly ruling that Mrs. Beck’s

remark that Eugene “wasn’t convicted” opened the door to

counsel’s question. “When a party opens up a subject . . . the

party cannot complain on appeal if the opposing party

introduces evidence on the same subject.” United States v.

Bender, 265 F.3d 464, 471 (6th Cir. 2001) (quoting United

States v. Ramos, 861 F.2d 461, 468-69 (6th Cir.1988))

(holding that defense counsel was permitted to cross-examine

defendant about her prior drug conviction, notwithstanding

district court’s earlier order excluding such testimony, when

defendant testified on direct examination that she had never

sold drugs).

However, we cannot say the same of the other line of

questioning challenged by plaintiffs. In the course of

questioning Mrs. Beck about her need for counseling, defense

counsel asked whether she had “other upsetting events” in her

life besides Eugene’s death. Mrs. Beck replied: “Like what?”

Defense counsel then asked: “Well, on several occasions you

and your family were accused of child molestation?”

Plaintiffs’ counsel objected strenuously, but was overruled.

Plaintiffs’ counsel then moved for a mistrial, which was

denied. It emerged that the accusation had originated with the

adoptive parents of Mrs. Beck’s granddaughters. An

investigation was dropped after Mrs. Beck passed a lie

28 Beck, et al. v. Haik, et al. No. 01-2723

detector test. It was unclear whether any charges were ever

filed.

This questioning was both irrelevant and unduly

prejudicial, and should have been disallowed. It certainly did

not satisfy the requirements of Fed. R. Evid. 608, which

permits the use of past crimes for impeachment, but only

where, among other requirements,the evidence indicates “that

a witness . . . has been convicted of a crime.” We have

cautioned that introducing unrelated evidence of sexual

crimes or deviancy risks “cater[ing] to the passions of the

jury” and “prejudic[ing] [a party’s] chance for a fair trial.”

United States v. McFadyen-Snider, 552 F.2d 1178, 1182 (6th

Cir. 1977). Here, plaintiffs’ choice to present Mrs. Beck’s

testimony about her love of her son and her need for grief

counseling could fairly be seen as opening the door to

questions about the stormy aspects of her relationship with

her family. But counsel’s question about apparently

uncharged, and certainly unproven, accusations of child

molestation by others against Mrs. Beck simply was not

relevant to that subject. The record does not even indicate

that defense counsel had any reason to believe the charges

were meritorious. Therefore, Mrs. Beck’s request for

clarification of counsel’s previous question about “upsetting

events” requiring counseling could not have “opened the

door” to any follow-up question about the accusations of

molestation. 

The district court’s denial of a motion for mistrial is

reviewed for an abuse of discretion. United States v. Green,

305 F.3d 422, 428 (6th Cir. 2002). In appeals of civil cases,

grants of mistrial on the basis of a single episode of improper

questioning or argument have been 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 urged jury in closing argument to “send a message”

in light of recent Rodney King riots; district court gave

curative instruction). One court has held that, where an
No. 01-2723 Beck, et al. v. Haik, et al. 29

appellant challenges a denial of mistrial on the basis of

evidence that the trial court held admissible, the appellant

faces an “unusually heavy appellate burden” of demonstrating

that the denial of mistrial was an abuse of discretion, on top

of demonstrating that the admission of the evidence was an

abuse of discretion. Tamko Roofing Prod., Inc. v. Ideal

Roofing Co., Ltd., 282 F.3d 23, 39 (1st Cir. 2002).

For reasons we discuss in Part IV, infra at pp. 30-32, we

need not consider whether the improper questioning of Mrs.

Beck was sufficiently prejudicial by itself to merit a mistrial.

It is enough that the error was significant and, in conjunction

with the other evidentiary errors we have identified, deprived

the Becks of a fair trial.

F

The plaintiffs offer one other argument meriting discussion.

It concerns the instructions given as to the first element of

their case. The district court instructed the jury that the

plaintiffs had to show that the defendants imposed a policy

“preventing” private rescue efforts. The plaintiffs argue that

this was an inappropriate gloss on the language of this court’s

previous opinion, thereby improperly increasing the

plaintiffs’ burden. The plaintiffs urge that the instruction

should have stated that defendants’ policies must “hinder” or

“deter” private rescue. They note accurately that this court

used these words in some passages of its earlier opinion. 

We conclude that the district court’s instructions adequately

informed the jury about the law and the relevant

considerations. As defendants point out, the district court’s

instructions were also grounded in our prior opinion, which

used the word “prevent” to describe the elements of the

plaintiff’s claim: “Ross holds that official action preventing

rescue attempts by a volunteer civilian diver can be arbitrary

in a constitutional sense if a state-sponsored alternative is not

available when it counts – and we are constrained to agree.”

Beck, 2000 WL 1597942 at *4 (emphasis added); see also

30 Beck, et al. v. Haik, et al. No. 01-2723

Ross, 910 F.2d at 1431 (holding that plaintiff stated a

constitutional claim when he alleged that the county “had a

policy of arbitrarily cutting off private sources of rescue

without providing a meaningful alternative”). It is not

reversible error when a court refuses to use the exact language

counsel requests in a jury instruction. Blackwell, 696 F.2d at

1183; Thompson v. Underwood, 407 F.2d 994, 997 (6th Cir.

1969). There is, in any event, great semantic overlap among

the terms “prevent,” “hinder,” and “deter.” Compare The

American Heritage Dictionary of the English Language 1391

(4th ed. 2000) (noting that “prevent” and related verbs “mean

to stop or hinder . . ., especially by advance planning or

action”) with id. at 494 (defining “deter” as “[t]o prevent or

discourage from acting”) and id. at 830 (noting that “hinder”

means “to hold back and often implies stopping or

prevention”). The instructions were proper. 

The plaintiffs have offered other assignments of error,

which we have considered. Because we find them to be

clearly without merit, we see no need to discuss these

additional arguments.

IV

The last issue is whether the errors in the trial require

reversal. Examining the proceedings in their entirety, we

believe that the substantive issues were significantly

contested. The Becks argued forcefully that the County and

City arbitrarily prevented private rescue as a matter of policy.

They presented testimony from MSRDT members Hornkohl

and Krause that they had been threatened with arrest were

they to enter the water at an accident scene. Several other

local witnesses testified that they had seen or heard of a

memo from the sheriff declaring water accidents to be crime

scenes, and some testified that they had heard of an arrest

policy connected with that memo. The individual defendants,

in turn, squarely denied adopting such a policy or threatening

the MSRDT members. The defendants presented testimony

from the local fire chiefs that tended to support their position.
No. 01-2723 Beck, et al. v. Haik, et al. 31

Likewise, the plaintiffs offered pertinent evidence that,

despite some of the trappings of rescue, the county really

offered only body recovery services, and thus offered no

meaningful alternative to private rescue. Cole, a trained

diver, and Dr. Steinman, plaintiffs’ expert witness, testified

that several aspects of the county dive team’s response, such

as the use of the body bag, and failure to enter the water for

58 minutes, suggested that they were not serious about rescue.

But this aspect of the plaintiffs’ case would have been

bolstered significantly if the testimony of Linton, the dive

expert, and the letter from Coast Guard officer Monck had

been admitted.

Causation was perhaps the weakest element of plaintiffs’

case. However, they presented Dr. Steinman’s expert

testimony that Beck probably could have survived if rescued

within 20 to 30 minutes of submerging. If the jury believed

the testimony of Mosack, it easily could have concluded that

the MSRDT divers could have recovered Beck during this

time. Defendants’ medical expert, Dr. Dueker, testified that

it was unlikely that Beck would have survived even 10 to 15

minutes’ submersion, thus casting doubt on plaintiffs’ claims

of causation. He also offered plausible criticisms of the

research that underpinned Dr. Steinman’s opinion. We think

it is relevant, though, that during its deliberations, the jury

asked a question about the meaning of the term “arbitrarily”

in the jury instructions. This was not part of the definition of

the causation element of plaintiffs’ case. The question

suggests that the jury may have thought plaintiffs had

presented enough evidence of causation to justify careful

attention to whether they had 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 testimony;

(2) the exclusion of the Coast Guard letter; (3) the exclusion

of the letters from the county risk consultant, Mr. Page;

(4) the exclusion of the spoliation evidence; and (5) the

improper questioning of Mrs. Beck on accusations of child

32 Beck, et al. v. Haik, et al. No. 01-2723

molestation. In our view, errors (2) and (4) involved

affirmative evidence with a significant potential to persuade

the jury, and error (5) raised a significant possibility of

improper prejudice. 

Should these effects be weighed together? Our court has

adopted the doctrine of “cumulative error” in criminal cases:

we consider the “combined effect” of multiple trial errors to

determine whether they are unfairly prejudicial. United States

v. Parker, 997 F.2d 219, 222 (6th Cir. 1993). We have not

yet had occasion to decide whether the same rule applies in

civil cases. However, most of our sister circuits follow the

cumulative-error doctrine in both civil and criminal cases.

See, e.g., Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d

183, 188 (7th Cir. 1993); Malek v. Fed. Ins. Co., 994 F.2d 49,

55 (2d Cir. 1993); Hendler v. United States, 952 F.2d 1364,

1383 (Fed. Cir. 1991); United States v. Rivera, 900 F.2d

1462, 1469 (10th Cir. 1990); but see SEC v. Infinity Group

Co., 212 F.3d 180, 196 (3d Cir. 2000). 

We agree with the majority of courts that the cumulativeerror doctrine should extend to civil cases. The “substantial

right” standard that governs harmless error analysis is defined

in terms of whether errors may have influenced the jury’s

verdict. Schrand, 851 F.2d at 157; see generally Part II,

supra at pp. 13-16. Since a jury reaches its verdict in light of

the evidence as a whole, it makes no sense to try to analyze

errors in artificial isolation, when deciding whether they were

harmless. 

Applying this standard, we conclude that we lack a “fair

assurance” that the verdict below was not substantially

swayed by error. Schrand, ibid.; Kotteakos, 328 U.S. at 765.

The trial was contested enough that fairness requires a new

trial in which the Becks may present the range of relevant

evidence denied to them below.
No. 01-2723 Beck, et al. v. Haik, et al. 33

V

For the foregoing reasons, the judgmentis REVERSED and

the case is REMANDED for a new trial.