UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MINH NGUYEN, 

Plaintiff-Appellant,

and

WING HUNG YEUNG,

Plaintiff,  No. 00-1672

v.

ARMANDO ARCE; MILTON C. CLARK;

B. G. MORRISEY, INCORPORATED;

H&M INTERNATIONAL, INCORPORATED,

Defendants-Appellees. 

WING HUNG YEUNG, 

Plaintiff-Appellant,

and

MINH NGUYEN,

Plaintiff,  No. 00-1693

v.

ARMANDO ARCE; MILTON C. CLARK;

B. G. MORRISSEY, INCORPORATED;

H&M INTERNATIONAL, INCORPORATED,

Defendants-Appellees. 

Appeals from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CA-96-3728-PJM, CA-98-9-PJM)

Argued: January 24, 2002

Decided: April 25, 2002
Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Salvatore Joseph Zambri, REGAN, HALPERIN &

LONG, P.L.L.C., Washington, D.C., for Appellants. Robert Lawrence

Ferguson, Jr., FERGUSON, SCHETELICH & HEFFERNAN, P.A.,

Baltimore, Maryland; Richard Scott Schrager, ARMSTRONG,

DONOHUE & CEPPOS & VAUGHAN, Rockville, Maryland, for

Appellees. ON BRIEF: Patrick M. Regan, REGAN, HALPERIN &

LONG, P.L.L.C., Washington, D.C.; V. Peter Markuski, Jr., WILSON, GOOZMAN, BERNSTEIN & MARKUSKI, Laurel, Maryland,

for Appellants. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

After a jury verdict in favor of defendants on all counts in a negligence action stemming from a motor vehicle accident, appellants

asked for a new trial based on several rulings by the trial judge they

found to be objectionable. The district court denied the motion. For

the reasons set forth below, we find no reversible error. 

I.

On April 2, 1996, appellants Minh Nguyen and Wing Hung Yeung

2 NGUYEN v. ARCE
were traveling southbound on Interstate 95 in Delaware in Nguyen’s

late model Mercedes sedan. Appellants were returning to Maryland

from Atlantic City, New Jersey.1 Yeung was driving in the left center

lane of the four lane highway when the Mercedes suddenly lost all

power. The accelerator was not responsive and Yeung could not

maneuver the vehicle to either shoulder. The vehicle came to a stop

in the lane. 

Two tractor-trailers were traveling behind Yeung and Nguyen on

the interstate. The first tractor-trailer was driven by Armando Arce in

the course and scope of his employment with H & M International

(H&M). Milton Clark was operating the second trailer in the course

and scope of his employment with B.G. Morrissey (Morrissey). While

stopped in the lane, the Mercedes was struck first by the tractor-trailer

driven by Arce and then by the tractor-trailer driven by Clark. Both

appellants were injured in the accident, Nguyen seriously so. 

Nguyen and Yeung separately filed suits against Arce, H&M,

Clark and Morrissey for injuries sustained by them as a result of the

accident. Jurisdiction was based on diversity of citizenship. All defendants claimed the accident was unavoidable, and all claimed Nguyen

was contributorily negligent for her failure to adequately maintain and

inspect the Mercedes. Defendants also filed third party complaints

against Yeung, asserting that his negligence was the proximate cause

of the accident and that he was acting as Nguyen’s agent when he

drove to and from Atlantic City in her vehicle. 

The cases were consolidated, and a jury trial commenced on March

7, 2000 in the United States District Court for the Southern Division

of Maryland. Because the case had previously been bifurcated, liability was the only issue presented to the jury. The jury found in favor

of defendants on all counts and in favor of Yeung on defendants’ third

party complaints. A final order of judgment was entered on March 17,

1Nguyen had been in Atlantic City with some friends over the weekend. She became separated from her friends and was without a means to

return to her Maryland home. Nguyen called Yeung and he agreed to

drive her car to Atlantic City. Because Nguyen was tired on the morning

of the accident, Yeung also agreed to drive back to Maryland. Nguyen

was asleep in the back seat when her Mercedes lost power. 

NGUYEN v. ARCE 3
2000. Appellants filed a motion for a new trial based on four perceived errors at trial. The trial court denied the motion on April 26,

2000, and appellants timely noted their appeal. 

II.

Nguyen and Yeung assert that the district court erred in four different respects at trial. They contend that they were prejudiced by an

erroneous jury instruction, improper arguments made in closing, and

the district court’s failure to allow a "second cross-examination" of an

expert witness. Appellants also assert that the district court improperly overruled their Batson challenge to one defendant’s use of a

peremptory strike. Having considered the record, the briefs, and the

applicable law, and having had the benefit of oral argument on these

issues, we affirm the district court’s denial of the motion for new trial.

A.

Appellants first contend that the district court committed reversible

error in giving Maryland Pattern Jury Instruction 18:7.1 because the

instruction sets forth an inappropriately low standard of care regarding the legal duties of appellees, as owners and operators of commercial motor carriers, to inspect and maintain their brake systems.2

 Even

assuming appellants are correct in asserting that the instruction did

not comply with the standard set forth in the Federal Motor Carrier

Safety Regulations, we decline to order a new trial because, based on

the record as a whole, the alleged error was not prejudicial to appellants. 

Because the tractor-trailers driven by Arce and Clark were commercial motor vehicles that transport property in interstate commerce,

all parties agree that the Federal Motor Carrier Safety Regulations are

applicable in this case.3See 49 C.F.R. §§ 390-396. The federal regula2We note that Instruction 18:7.1 was submitted to the court before trial

as part of plaintiffs’ requested jury instructions. 

3At trial, it was established that the brakes on the tractor driven by

Clark for Morrissey were out of adjustment. 

4 NGUYEN v. ARCE
tions require that a driver "be satisfied" the vehicle is in safe operating

condition before driving the vehicle. See 49 C.F.R. § 396.13 and 392.7.4

Maryland Pattern Jury Instruction 18:7.1 states that an operator’s

duty to inspect a vehicle for defective brakes may be accomplished

by "operating the brakes and finding them in adequate working condition prior to the failure, provided that the operator did not have reasons to suspect the brakes may be likely to fail in the course of the

normal operation of the vehicle." Appellants argue that this instruction conflicts with Federal Motor Carrier Safety Regulations because

it does not require a pre-trip inspection of the vehicle. However, even

if we assume it was error to give the Maryland form instruction, a jury

charge "must be construed in light of the whole record." Abraham v.

County of Greenville, 237 F.3d 386, 393 (4th Cir. 2001) (citing Spell

v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987)). A judgment will

be reversed for error in jury instructions "only if the error is determined to have been prejudicial, based on a review of the record as a

whole." Id. (quoting Wellington v. Daniels, 717 F.2d 932, 938 (4th

Cir. 1983)). We have examined the record in detail, and we find that

the instruction complained of did not cause any discernable prejudice

to appellants. 

To begin, appellants did not object to Maryland Pattern Jury

Instruction 18:6, which was read to the jury along with Instruction

18:7.1. Instruction 18:6 states that a "defective condition which is the

cause of the accident is evidence of negligence of an operator and

owner who has failed to properly maintain and inspect the vehicle."

Like Instruction 18:7.1, Instruction 18:6 reads in part that "[p]roper

inspection means an inspection which shows that the vehicle or the

alleged defective part of the vehicle was in adequate working condition prior to the failure."5

 (emphasis added). Even if Instruction

4The federal regulations were provided as evidence of the applicable

standard of care and as part of the proposition that a violation of a regulation may be evidence of negligence, not negligence per se. 

5

Instruction 18:7.1 states that "the duty of an operator to inspect the

brakes may be accomplished by operating the brakes and finding them

in adequate working condition prior to the failure, provided that the

operator did not have reason to suspect that the brakes may be likely to

fail in the course of the normal operation of the vehicle. (emphasis

added). 

NGUYEN v. ARCE 5
18:7.1 had not been read to the jury, the same language, though in

broader terms (defective part versus brakes specifically) would have

reached the jury because no objections were made to Instruction 18:6.

In addition to the fact that appellants did not object to Instruction

18:6, we also note that the federal regulations, all mandating a pre-trip

inspection, were read to the jury. 

Furthermore, the uncontroverted evidence presented at trial established that Clark did in fact perform a 20 to 25 minute pre-trip inspection on his tractor.6

 J.A. 558. While Clark’s testimony did not

establish that he inspected the trailer he was transporting at the time

of the accident, there is no evidence before us that the trailer’s brakes

were faulty, and there is no evidence that inspecting the trailer’s

brakes would have revealed the defect in the tractor’s brakes. Thus,

taken as a whole, we find no prejudice stemming from the district

court’s decision to give Maryland Pattern Jury Instruction 18:7.1. 

B.

Second, appellants argue that the trial court committed reversible

error when it failed to strike statements made by counsel for Arce and

H&M in closing argument concerning Nguyen’s contributory negligence and appellants’ failure to call Nguyen’s son as a witness. We

find that any error in failing to strike the statements was harmless, but

in order to explain our finding, some elaboration on the facts is necessary. 

At trial, Nguyen testified that before she bought the Mercedes, she

asked her son, a mechanic, to look it over. He allegedly determined

that the Mercedes did not have mechanical problems. Prior to submitting the case to the jury, the issue of Nguyen’s contributory negligence was removed from the case for lack of evidence. However,

appellant Yeung’s negligence remained as part of the third party complaint brought by defendants. Defendants urged the jury to find that

Yeung was Nguyen’s agent. If the jury found Yeung was both negli6While the federal regulations mandate that inspections take place

before the vehicle is driven, they do not detail how an adequate pre-trip

inspection is accomplished. 

6 NGUYEN v. ARCE
gent and Nguyen’s agent, his negligence could have been imputed to

her. 

In closing argument, counsel for Arce asked "Where is [Nguyen’s]

son, the mechanic, to tell you the condition of that car the week

before this accident when she decided she was going to buy it . . . ?"

Nguyen’s counsel objected, but the district court overruled the objection. On appeal, appellants claim this was improper argument because

the issue of Nguyen’s contributory negligence was out of the case.

They assert that counsel for Arce intentionally interjected Nguyen’s

contributory negligence back into the case when he asked about her

son in closing. 

Even assuming that the statements made in closing argument were

improper, we find that they did not prejudice appellants. Even if

counsel for Arce and H&M intentionally interjected Nguyen’s contributory negligence back into the case, we see no way Nguyen would

have been prejudiced because her negligence was not an issue the jury

was instructed to decide. In addition to Yeung’s contributory negligence7

, the only issue for the jury to decide was that of defendants’

negligence. Jurors are presumed to follow the law, see Brinkley-Obu

v. Hughes Training, Inc., 36 F.3d 336, 354 (4th Cir. 1994), and we

see nothing in the record to suggest that they did not do just that here.

It would be mere speculation for us to find that the jury imputed some

sort of contributory negligence on the part of Nguyen into its finding

that the defendants were not negligent. 

Appellants further assert that the court compounded the error by

failing to issue a curative instruction explaining that no inference

could be drawn from the fact that Nguyen’s son did not testify. We

find no abuse of discretion here. Nguyen’s counsel explained in his

rebuttal argument that Nguyen’s son was available to either party

because defendants could have subpoenaed him. Furthermore, the

court instructed the jury that closing arguments by counsel are not to

be considered evidence in the case. 

7Certainly the statements did not prejudice Yeung, as the jury found

that he was not contributorily negligent in his operation of the vehicle.

NGUYEN v. ARCE 7
C.

Third, appellants claim that the trial court erred in denying

Nguyen’s counsel the opportunity to perform a second crossexamination of Clark and Morrissey’s accident reconstruction expert.

At trial, counsel for Clark and Morrissey called defense expert Wayne

S. Gosnell to offer his opinion about Clark’s actions and the capabilities of the Morrissey tractor-trailer driven by Clark. Nguyen’s counsel

then cross-examined the expert. After the cross-examination, counsel

for co-defendants Arce and H&M was allowed to question the expert.

Appellants claim that during this "friendly cross," the expert testified

about new subjects and gave new opinions that were not addressed in

the previous examination by any party. After a careful review of the

record, we find that this argument is without merit. 

Appellants claim that crucial expert testimony went unchallenged

here because counsel for Arce and H&M, in asking about Arce’s

actions, went beyond the scope of previous examination, which had

only related to Clark’s actions.8 The fault with this argument lies in

the fact that Ngyuen’s counsel, on cross-examination of Mr. Gosnell,

asked the expert, "Should Mr. Arce have been able to see the Mercedes over the white car in front of him?" J.A. 899. This opened the

door for Arce’s counsel, on "friendly cross," to ask questions pertaining to whether Arce would have been able to perceive that the Mercedes was stopped.9

In addition, the litigants were well aware of the order of examination, and were on notice that the district court would not permit second examinations of witnesses, expert or otherwise. The district court

had established a protocol at the beginning of trial and the parties

agreed to that protocol. For these reasons, we find that the court did

not abuse its discretion in denying Nguyen’s counsel’s request to "recross" Gosnell. 

8Nguyen’s counsel never objected during Gosnell’s testimony that the

questioning by counsel for Arce was beyond the scope of direct or of

cross-examination. 

9The other testimony claimed by appellants to be new material was

both cumulative and irrelevant, and any error in admitting it was harmless. 

8 NGUYEN v. ARCE
D.

Finally, appellants contend that the trial court erred in accepting

Arce and H&M’s explanation for their peremptory strike of juror

number 3, Thinh D. Tran. Appellants challenged the strike pursuant

to Batson v. Kentucky, 476 U.S. 79 (1998), alleging that juror Tran

was struck because of his "Asian heritage."10 In response to the challenge, counsel for Arce and H&M explained that his purpose "was to

strike the youngest jurors for inexperience in driving." Tran, age 25,

was one of the youngest jurors in the pool. The district court, assuming a prima facie case of discrimination, found the explanation "justifiable" and overruled the Batson challenge. 

Trial court findings concerning whether peremptory challenges are

made for racially discriminatory reasons are given great deference by

this court. United States v. Grimmond, 137 F.3d 823, 833 (4th Cir.

1998) (quoting Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995)).

As such, we review a district court’s Batson finding only for clear

error. Id. Here, we find no such error. 

We have held that age is a legitimate race-neutral factor on which

counsel may rely when striking a potential juror. See Howard v.

Moore, 131 F.3d 399, 408 (4th Cir. 1997) (en banc). Because counsel

for Arce and H&M articulated a race-neutral explanation for the challenge, the burden then shifted to appellants to prove that the explanation was a pretext for discrimination. Id. at 407; Batson, 476 U.S. at

98. 

Appellants attempted to meet this burden by arguing that a juror

who was younger than Tran was not stricken. A discussion ensued,

where counsel for Arce and H&M explained that he did not strike the

younger juror because counsel for co-defendants had already stricken

that juror. The district court found no discriminatory purpose. Appellants now argue on appeal that we should find evidence of discriminatory purpose because counsel for Arce and H&M did not question

jurors about their driving experience, and juror Tran could have had

more driving experience than an individual on the panel who was

10Juror Tran and appellant Nguyen are both Vietnamese. Appellant

Yeung is from China. 

NGUYEN v. ARCE 9
twice his age. We find this argument unpersuasive. It is certainly not

unreasonable to infer a lack of driving experience from one’s young

age. Appellants simply have not shown that the explanation offered

by counsel for Arce and H&M was a pretext for discrimination. 

III.

Based on the foregoing, we affirm the district court’s decision

denying the motion for a new trial.

AFFIRMED

10 NGUYEN v. ARCE