UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLENN EARL DAVIS,

Plaintiff-Appellee,

v.

No. 96-1238

SIX SIXTEEN, INCORPORATED, t/a Club

Rogues; SAMUEL CHARLES HAMPTON,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CA-95-441)

Argued: June 3, 1997

Decided: September 12, 1997

Before WIDENER and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Edward L. Breeden, III, BREEDEN, MACMILLAN &

GREEN, P.L.C., Norfolk, Virginia, for Appellants. David Marshall

Zobel, HUFF, POOLE & MAHONEY, P.C., Virginia Beach, Virginia, for Appellee. ON BRIEF: Dawn M. Peters, BREEDEN, MACMILLAN & GREEN, P.L.C., Norfolk, Virginia, for Appellants.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Glenn Davis ("Davis"), a one-time professional baseball player,

brought this personal injury diversity action against Six Sixteen,

Incorporated ("Six Sixteen") and Samuel Charles Hampton

("Hampton") to recover compensatory and punitive damages for injuries sustained when Hampton, a bouncer at a nightclub owned by Six

Sixteen, punched Davis in the face three times, breaking his jaw in

two places. A jury returned a verdict in favor of Davis against both

defendants, awarding Davis substantial compensatory and punitive

damages.

Six Sixteen and Hampton (hereafter collectively, for simplicity,

"Hampton") now appeal, contending that certain expert testimony was

improperly admitted; that the district judge erred in refusing to give

two of their requested jury instructions; and that the judge improperly

questioned an expert witness. We find no prejudicial error and affirm.

I.

At the time in issue Davis was a professional baseball player in the

Baltimore Orioles chain on assignment to the Rochester Redwings, a

minor league affiliate of the Orioles. On June 7, 1993, Davis and two

of his teammates, Mark Parent and Randy Ready, went to Club

Rogues, a Virginia Beach nightclub owned by Six Sixteen.

The parties' testimonial accounts of what then transpired at the

Club Rogues differ markedly. Indisputably, the trouble that led to

Davis's injury all began when Hampton and fellow bouncers were

summoned to deal with some roistering conduct by the ballplayers

outside the club just after they had left the building. Critically, defendants do not contest the sufficiency of the evidence of what then

happened--when assessed under the appropriate standard--to support

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the jury's verdict. We therefore simply summarize the flatly conflicting testimonial versions of what happened.

Davis's version was that Hampton attacked him while he, Davis,

was simply trying to break up an escalating exchange between Ready

and several other Club Rogues bouncers; that he had no intention of

fighting Hampton or any of the bouncers; and that he never made any

threatening moves or gestures toward Hampton. By his account, with

some supporting testimony by other eye-witnesses, Hampton initiated

the physical encounter with Davis, grabbing him as he attempted to

break up the altercation involving Ready. Critically, Davis's account

had it that as they struggled, Hampton lured him into thinking the

encounter was over by suddenly loosening his hold and looking away

as if to abandon the fray, only to then fell Davis with a "sucker

punch" to the jaw when Davis, with his guard down, looked away to

see how Ready was faring. With Davis on the ground from the force

of the sucker punch, Hampton then punched him in the face two more

times. It is undisputed that the blows struck by Hampton broke

Davis's jaw in two places, requiring it to be wired shut for four

weeks. The evidence showed that Hampton was a professional heavyweight boxer along with his other occupations as a bouncer and construction worker.

Hampton's version was that Davis's involvement in the affray was

not as a would-be peacemaker, but as an aggressor who attacked

Hampton while he, Hampton, was trying to pull Davis away from

Ready and another bouncer. According to Hampton, the blows he

concededly struck were struck only in necessary self-defense.

Seventeen other eye-witnesses testified about different aspects of

the altercation. Some witnesses testified in support of Davis's

account, others supported that of Hampton. Following a six-day trial,

the jury simply accepted the Davis version and rejected Hampton's,

returning its substantial verdicts for Davis after around six hours of

deliberation.

On the issue of damages, the parties presented conflicting expert

witness testimony regarding income lost by Davis as a result of his

injuries. Davis's expert at trial was Talbot Smith, President of the

Houston Astros, who has 38 years of experience with professional

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baseball. Smith testified that, in his opinion, Davis's lost playing time

in 1993, as a result of his injury, prevented him from signing a major

league contract for the 1994 season, and that such a contract would

have been worth approximately $1.8 million for the entire season.

This figure was then adjusted to $1,288,000 in light of the player's

strike which commenced in August 1994.

As their expert damages witness, appellants presented Richard

Wagner, former general manager of the Cincinnati Reds and the

Houston Astros. Wagner testified that, in his opinion, Davis's "declining performance" during the period 1990 to 1993, rather than his jaw

injury, was the reason Davis failed to receive a major league contract

for 1994. Again, the jury simply favored Davis's version of lost

income over that of appellants, returning verdicts for $1,517,434.86

compensatory, and $100,000 punitive damages.

This appeal followed.

II.

We first consider appellants' contention that the district court erred

in declining to give two proffered jury instructions on the liability

issue.

A.

At trial, Hampton's (hence his employer's) principal defense was

self-defense, based upon his evidence that in his encounter with

Davis, Davis, not he, was the physical aggressor. Hampton tendered

as a proposed instruction a Virginia Model Instruction defining the

right of self-defense against a battery. Such an instruction, drawing on

controlling Virginia law, makes the point that where one is sustaining

an actual battery at the hands of another--as opposed to sustaining an

assault without battery--the person subjected to the battery may stand

his ground and resist, using such force as is reasonably necessary to

repel the assailant. See Crosswhite v. Barnes , 124 S.E. 242 (Va.

1924).

The district court gave self-defense instructions, as certainly was

Hampton's due on the evidence, but declined to give the specific one

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tendered by Hampton. Instead, the court charged, in two instructions,

as follows:

Instruction No. 10

 The law protects the physical integrity of every person

from all unnecessary and unwarranted violation or interference.

 Any intentional attempt or threat to inflect injury upon the

person of another, when coupled with an apparent present

ability to do so, and intentional display of force such as

would give a person reason to fear or expect immediate bodily harm, constitutes an "assault." An "assault" may be committed without actually touching or striking, or doing bodily

harm to the person of another. However, words alone are

never an assault.

 Any intentional use of force upon the person of another

is a "battery." So, a touching, however slight, of the person

of another, in a rude, insulting, or angry way, constitutes a

"battery."

Instruction No. 11

 Sam Hampton alleges that any act or conduct on his part

which may have caused any injury or damage to the plaintiff

was committed or done following an unprovoked assault by

the plaintiff upon him. That is to say, the defendant, Sam

Hampton, claims he acted within his lawful right of selfdefense.

 A person upon whom an unprovoked assault or battery is

being made, or who has reasonable ground for believing,

and does believe, that another person is about to inflict bodily injury upon him, need not retreat, but may stand his

ground and defend the integrity of his person; and where in

such self-defense of his person he injures his assailant, the

law holds there is legal justification, provided he used no

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more or no greater force or means than he in fact believed

to be reasonably necessary, and would appear to a reasonable person, under like circumstances, to be necessary, in

order to prevent bodily injury to himself.

Hampton's challenge is specifically directed at a selected portion

of Instruction 11, i.e.:

A person upon whom an unprovoked assault or battery is

being made, or who had reasonable grounds for believing,

and does believe, that another person is about to inflict bodily injury upon him, need not retreat, but may stand his

ground . . . .

The specific contention made by Hampton is that this instruction,

by importing the situation of an assault without battery, also imported

the requirement that the right of self-defense in that situation requires

a belief that the assaulter is "about to inflict bodily injury." So

instructed, the argument goes, the jury would have believed that

Hampton's defense could exonerate him only if he was both being

subjected to a battery and believed that he was threatened with bodily

injury.

That argument, focussing on one narrow portion of two interrelated instructions, does not persuade us of any error, certainly none

having prejudicial effect. In reviewing jury instructions, we look to

the whole context in which challenged portions occur and ask only

whether, so viewed, the instructions as a whole fairly instructed the

jury on the relevant legal principles in light of the evidence before the

jury. See Nelson v. Green Ford, Inc., 788 F.2d 205, 209 (4th Cir.

1986). Here, there was evidence from which the jury could have

found preliminarily either that Davis had actually inflicted a battery

on Hampton or might at least have appeared to Hampton to be threatening him with a battery--to be committing an assault--when Hampton punched him. In either circumstance, Hampton might be entitled

to defend himself, so the district court quite properly, in Instruction 10, instructed the jury that they might find either an assault or a

battery--and then accurately defined those different torts. Instruction 11 then followed up with a definition of the differing rights of

self-defense that pertain respectively to assault and to battery situa-

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tions. If one is being merely assaulted, he may not react with reasonable force unless he has reason to believe, and does believe, that it is

necessary to avoid the threatened injury; once he is being subjected

to an actual battery, he may then use such reasonable force as is necessary to repel the already-realized threat of bodily injury. That was

the clear gist of the two instructions in combination. That the proposition might have been somewhat more clearly stated does not require

appellate correction where the gist is sufficiently clear. See Hardin v.

Ski Venture, Inc., 50 F.3d 1291, 1295 (4th Cir. 1995). Nor does the

refusal of the court to instruct precisely as may have been requested.

Id. at 1294.

We find no prejudicial error in the district court's self-defense

instruction.

B.

Hampton also challenges the district court's refusal to give any

instruction--as Hampton requested--on the right of a landowner to

use force when removing a trespasser from his property. Pointing to

evidence that Hampton only used force against Davis after Davis and

his friends had been ordered off the premises, Hampton says this

invoked the landowner-trespasser defense.

The district court refused to give any instruction on this defense on

the basis that the evidence would not support the necessary finding

that at the critical time Davis was in fact a trespasser. We need not

decide whether the court was correct in that perception for even if we

were to conclude that a trespass might have been found, any error in

declining to instruct on this defense was harmless. A proper instruction on this defense would have told the jury only that a landowner

has a right "`to order [a trespasser] away, and if he refuse[s] to go,

to use proper force to expel him' so long as no breach of the peace

is committed in the outset." Diffendal v. Commonwealth, 382 S.E.2d

24, 25-26 (Va. App. 1989) (quoting Montgomery v. Commonwealth,

37 S.E. 841, 842 (Va. 1901)).1

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1 The requested instruction probably would have given greater latitude

in the use of force than would the Diffendal statement of rule; it would

have allowed any force that would not cause serious bodily injury--

presumably without regard to the circumstances.

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All such an instruction would have given Hampton was the chance

to escape liability by proving that the force he used on Davis was

"proper" under the circumstances. The jury, however, necessarily had

rejected, in rejecting his self-defense defense--any finding that the

force he used was "reasonable" under the circumstances. It cannot be

assumed that a jury unwilling to find reasonable force in the act of

breaking a jaw with a "sucker punch" as a matter of self-defense nevertheless would be prepared to find the same use of force "proper" for

purposes of evicting a trespasser.

For these reasons, if there was any error in declining to give a specific landlord-trespasser instruction--of which we are doubtful--it

was harmless.

III.

On the damages issue, appellants contend that the trial court erred

by permitting Davis's expert witness, Talbot Smith, to testify as an

expert and offer his opinion that Davis would likely have received a

$1,800,000 contract to play major league baseball had he not suffered

the broken jaw in 1993. "Whether to allow expert testimony and

whether a potential witness possesses sufficient education and training to render an expert opinion are questions committed to the discretion of the trial judge," and in review, we consider only whether such

discretion has been abused. Sparks v. Gilley Trucking Co. Inc., 992

F.2d 50, 53 (4th Cir. 1993) (citation omitted).

Davis claimed physical, emotional and economic damages as a

result of his injury. Specifically, as to economic damage he argued

that because his broken jaw prevented him from playing most of the

1993 baseball season, this lack of playing time precluded him from

landing a major-league contract for the 1994 season. As a result, he

lost substantial income. Smith, testifying as a qualified expert, opined

that people involved in baseball, such as managers, scouts or team

owners, need to see players perform for a substantial length of time--

preferably an entire season--in order to evaluate their talent. Davis's

jaw injury precluded him from playing a full season in 1993 and prevented him from obtaining the type of exposure necessary to acquire

a contract for 1994.

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Viewed as a whole, Smith's testimony focused on two issues central to Davis's claim for damages: (1) whether there was a causal connection between Davis's lost playing time during the 1993 baseball

season and his failure to obtain a major league contract for 1994; and

(2) if so, whether such monetary loss could be quantified. Appellants

admitted during trial that Smith was knowledgeable about baseball.

Indeed, in their brief, they concede that Smith has had an extensive

career in professional baseball since 1958, a career which has exposed

him to the recruitment and evaluation of talent, scouting, the training

of players, team assembly, contract negotiation, player arbitration,

and the overall evaluation of baseball teams.

Despite Smith's qualifications, appellants claim that under the standards enunciated in Daubert v. Merrell-Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993), and according to Rule 702 of the Federal Rules

of Evidence, Smith's speculative opinion concerning Davis's ability

to secure a major league contract in 1994, and the salary to which

Davis would therefore have been entitled, should have been excluded.

With respect to the contention that Smith's testimony should have

been excluded under Daubert, we find the argument to be without

merit. Simply put, we do not believe that the evidence proffered by

Smith concerning baseball salaries and the likelihood Davis would

have secured a contract had he not been injured in 1993, is the type

of "scientific" evidence that must pass Daubert muster.

And, we believe that the evidence clearly was admissible under

Evidence Rule 702, which provides that:

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.

Whether expert testimony will assist the jury is dependent on the

facts of the particular case. Kopf v. Skyrm, 993 F.2d 374, 379 (4th Cir.

1993). In this case, the testimony offered by Smith surely could assist

the jury in quantifying the economic loss, if any, that Davis had suffered as a result of his jaw injury. It was therefore clearly admissible

for that critical purpose.

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IV.

We have considered appellants' remaining assignments of error2

and find them to be without merit.

AFFIRMED

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2 These were that: (1) the district court erred by improperly questioning their expert witness; and (2) the court erred in permitting Davis to

impeach Hampton using deposition testimony concerning whether

Hampton had ever been charged with a crime.

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