UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1228

MICHAEL LEWIS SCOTT,

Plaintiff - Appellant,

v.

WATSONTOWN TRUCKING CO. INC.; WILLIAM A. MILLER, III,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. David Novak, Magistrate 

Judge. (3:12-cv-00176-DJN)

Submitted: June 17, 2013 Decided: July 18, 2013

Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and HAMILTON, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

John R. Garza, Bradley N. Kehr, GARZA, REGAN & ASSOCIATES, P.C., 

Rockville, Maryland, for Appellant. John K. Messersmith, IV, 

James H. Revere, III, KALBAUGH, PFUND & MESSERSMITH, P.C., 

Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Michael Lewis Scott brought negligence claims in the 

district court against Watsontown Trucking Company (“Watsontown 

Trucking”) and William A. Miller (collectively, “Defendants”). 

In his complaint, Scott alleged that Miller’s negligent 

operation of a Watsontown Trucking vehicle resulted in a 

collision with Scott in which Scott suffered injuries. At 

trial, Scott failed to testify on his own behalf, and the 

district court provided the jury with a “missing witness” 

instruction, over Scott’s objection.1

 The jury returned a 

verdict of no liability, and after denying Scott’s motion for a 

new trial, the district court entered judgment in favor of 

Defendants. Scott now appeals that judgment. For the following

reasons, we affirm. 

I.

Although the parties dispute many of the material facts in 

this case, it is undisputed that on July 20, 2010, Miller, a 

Watsontown Trucking employee, was operating a tractor trailer 

 1 By the parties’ consent, a magistrate judge presided over 

all aspects of this matter. See 28 U.S.C. § 636(c)(1). All 

references to “the district court” in this opinion refer to the 

magistrate judge. 
3

owned by Watsontown Trucking.2 As Miller was making a left turn 

from Broad Street onto Parham Road in Richmond, Virginia, he 

collided with a motorcycle driven by Scott, who was proceeding 

southbound on Broad Street. Scott suffered personal injuries as 

a result of the accident. As the district court succinctly 

explained, the dispute at trial “boil[ed] down to whether . . . 

Miller had a green light when he turned left from Broad Street 

onto Parham Road and if not, whether [Scott] acted with 

contributory negligence.” (J.A. 606.) 

Scott filed a complaint against Defendants in the United 

States District Court for the Eastern District of Virginia.3 In 

his complaint, Scott brought various negligence claims arising 

out of the vehicle accident and sought damages. Miller and 

Watsontown Trucking answered, and the case proceeded to trial by 

jury.

Prior to trial, Scott, believing that Miller would not 

testify, requested that the court provide the jury with Virginia 

Model Jury Instruction Civil No. 2.080, which would permit the 

 2 Based on the jury’s verdict, we view the facts in the 

light most favorable to the prevailing party, Defendants. See

United States v. Cone, 714 F.3d 197, 201 n.1 (4th Cir. 2013). 

3 Because the parties to the action were diverse and the 

amount in controversy exceeded $75,000, the district court 

properly exercised diversity jurisdiction over Scott’s personal 

injury claim. See 28 U.S.C. § 1332. 
4

jury to infer from the unexplained failure to call an important 

witness that the witness’ testimony was not favorable to the 

party who failed to call the witness (referred to hereinafter as 

the “missing witness” instruction). Although the court denied 

the request, Miller ultimately testified at trial. 

Also prior to trial, Scott’s counsel tendered witness lists 

to the court that indicated Scott would be called as a witness, 

and the district court itself labored under the belief that 

Scott would testify at trial. Only near the end of trial did 

counsel for Scott finally inform the court that Scott would not 

be taking the witness stand. Indeed, Scott never even appeared 

in the courtroom during the proceedings. 

During trial, Scott (through counsel) elicited testimony 

from one of Scott’s physicians, Dr. Steven Macedo

(“Dr. Macedo”), who averred that he advised Scott not to attend 

the trial because protracted sitting would cause his chronic 

pain (as a result of injuries incurred during the collision in 

question) to “spike.” Dr. Macedo did not, however, explain 

whether he advised Scott not to testify, or otherwise opine on 

the advisability of Scott testifying at trial.4 

 4 Indeed, Scott was deposed prior to trial, and there is no 

indication in the record that he was unable to sit for the 

length of his deposition. Scott did not introduce any portion 

of the deposition into evidence, and the contents are only in 

the record pursuant to a post-trial order of the district court. 
5

On learning that Scott would not testify, the district 

court asked counsel for Scott whether counsel would be able to 

accept a subpoena on Scott’s behalf, compelling him to testify 

the next day. Counsel indicated that he could not accept 

service of a subpoena, and that in any event, a subpoena would 

be untimely pursuant to the local rules of the Eastern District 

of Virginia. 

When Scott failed to testify or make himself amenable to a 

subpoena, Defendants requested that the jury be given the same 

missing witness instruction which Scott had proposed earlier. 

The district court initially declined to give the instruction, 

but sua sponte reconsidered its decision that evening. Prior to 

the district court’s charge conference, the court provided the 

parties with draft jury instructions, including the missing 

witness instruction. Scott objected to the instruction, which 

was overruled on the basis that Scott offered evidence about his 

recollection of the accident and, by calling Dr. Macedo, Scott 

placed his ability to attend the trial in controversy. The 

court therefore gave the following instruction in charging the 

jury:

Let’s talk . . . about the unexplained failure to 

produce an important witness. If you believe that a 

party, without explanation, failed to call an 

available witness who has knowledge of necessary and 

material facts, you may presume that witness’ 
6

testimony would have been unfavorable to the party who 

failed to call the witness.5

(J.A. 382.) 

The jury returned a special verdict, specifically finding 

that Scott failed to prove by a preponderance of the evidence 

that Miller was negligent. The jury never reached the question, 

therefore, of whether Scott was contributorily negligent, and 

never considered damages. 

Scott then moved for a new trial pursuant to Federal Rule

of Civil Procedure 59. The district court held a hearing on the 

motion before denying it by written opinion. The court 

concluded that Scott, who had initially requested a missing 

witness instruction as to Miller, could not later object when 

the court gave an identical instruction after Scott failed to 

testify. Moreover, the court expressed considerable concern

that it had been misled by “gamesmanship” on the part of Scott’s 

counsel, and again observed that Scott had placed the matter of 

his absence in controversy by introducing testimony from Dr. 

Macedo. (J.A. 614.)

The court then entered judgment in favor of Defendants. 

Scott noted a timely appeal, and we have jurisdiction pursuant 

to 28 U.S.C. § 1291. 

 5 The district court’s missing witness instruction is 

identical to Virginia Model Jury Instruction Civil No. 2.080. 
7

II.

Scott raises myriad issues on appeal, but at bottom, he 

simply assigns error to the district court’s decision to give a 

missing witness instruction, and its subsequent decision denying 

Scott’s motion for a new trial. Finding no error in either 

respect, we affirm. 

We review the court’s jury instructions for abuse of 

discretion. See A Helping Hand, LLC v. Baltimore Cnty., Md., 

515 F.3d 356, 370 (4th Cir. 2008). Of course, “[a]n error of 

law constitutes an abuse of discretion.” Id. The “judgment 

will be reversed for error in jury instructions,” however, “only 

if the error is determined to have been prejudicial, based on a 

review of the record as a whole.” Abraham v. Cnty. of 

Greenville, S.C., 237 F.3d 386, 393 (4th Cir. 2001) (quotation 

marks omitted). Similarly, we review the denial of a motion for 

a new trial under Rule 59 for abuse of discretion. Robinson v. 

Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009). 

III.

In this diversity action, we apply the substantive law of 

the forum state, Virginia. See Erie R.R. Co. v. Tompkins, 304

U.S. 64, 78 (1938). Before considering whether the legal 

elements for a missing witness instruction were met under 
8

Virginia law, we observe at the outset that “[b]ecause we 

recognize that an aura of gamesmanship frequently accompanies 

requests for missing witness charges, we afford district judges 

considerable discretion in deciding when they should and should 

not be given.” United States v. Gaskin, 364 F.3d 438, 463 (2d 

Cir. 2004) (internal citation and quotation marks omitted); 

accord VRCompliance LLC v. HomeAway, Inc., 715 F.3d 570, 575 

(4th Cir. 2013) (“[A]ppellants’ procedural gamesmanship renders 

us unable to say that the district court abused its 

discretion.”). 

In this case, we find significant that the district court 

was confronted with considerable gamesmanship throughout the 

course of the litigation below. As the court observed,

the gamesmanship here was not limited only to [Scott] 

seeking the instruction, then objecting to the same 

instruction when Defendants sought it. . . . [Scott’s] 

counsel led the Court to believe that [Scott] was 

going to testify and, importantly, gained a litigation 

advantage from that misdirection. And after [Scott’s] 

counsel finally made clear that [Scott] would not 

testify and defense counsel requested the missing 

witness instruction, the Court sought to cure the 

situation by inquiring whether [Scott’s] counsel would 

accept service of a defense subpoena for [Scott’s] 

testimony the next day, which [Scott’s] counsel 

rejected. [Scott’s] counsel also indicated that a 

request for a subpoena at that time was untimely, 

which was accurate. Consequently, [Scott’s] challenge 

to the missing witness instruction must be viewed 

within the context of his counsel’s gamesmanship. 

(J.A. 614 (internal citations omitted).)
9

In this case, the able magistrate judge who presided over 

the trial was able to evaluate, first hand, Scott’s counsel’s 

actions, and fashion an appropriate remedy. The court noted 

that Scott’s counsel asked for, and later objected to, the 

missing witness instruction, “misdirect[ed]” the court as to 

whether Scott himself would testify, and thwarted the court’s 

initial attempts to amicably resolve the missing witness dispute 

by subpoenaing Scott to testify. (Id.) Under these 

circumstances, we cannot say that the district court abused its 

considerable discretion in giving the missing witness 

instruction. 

Out of an abundance of caution, however, we will briefly 

analyze whether, as a matter of Virginia law, the elements were 

met for the giving of a missing witness instruction. As the 

Supreme Court of Virginia has explained, the missing witness 

instruction is a “statement of the settled rule that the 

unexplained failure of a party to call an available material 

witness gives rise to an inference, sometimes called a 

presumption, that the testimony of such absent witness would be 

adverse to such party.” Neeley v. Johnson, 211 S.E.2d 100, 107 

(Va. 1975). The missing witness instruction has two elements: 

availability and materiality. See id.

Availability may be translated as the power of the

party to produce. Probable availability rather than 

actual availability may be sufficient depending upon 
10

the state of the evidence in each case. The lack of 

power or nonavailability may be due to the person's 

absence from the jurisdiction, his illness, the 

party’s ignorance of the whereabouts of the witness, 

the person's testimony being inadmissible, or other 

like circumstances. “Available” is equated to 

“control” in some cases, that is, the witness is 

available if he “is in such relationship with the 

party that it is likely that his presence could be 

procured.” Nonavailability may be explained and the 

inference, or presumption, rebutted when the litigant 

explains the absence. 

Id. (internal citations omitted). 

Scott first argues that the district court improperly 

placed the burden on him to show that he was unavailable and his 

testimony immaterial.6 Rather, he argues, the burden should have 

been placed on Defendants. 

Our review of the record, however, belies Scott’s 

assertion. We are unable to identify where in the record the 

court improperly assigned the burden to show availability and 

materiality. The discussion cited in Scott’s brief contains no 

mention of burdens, and we are unable to discern where any 

alleged error occurred. More to the point, however, to the 

 6 Scott argues, as a threshold matter, that this Court 

should abrogate or abandon the missing witness instruction as no 

longer appropriate. As this argument was not raised in the 

district court, it is deemed waived and we will not consider it 

for the first time in this appeal. See Muth v. United States, 1 

F.3d 246, 250 (4th Cir. 1993) (issues raised for first time on 

appeal are considered waived absent exceptional circumstances). 
11

extent that the district court did misallocate the burdens, 

Scott cannot demonstrate prejudice. 

The allocation of burdens is subject to harmless error 

review. See Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 

F.3d 305, 328 (4th Cir. 2001) (en banc) (“[B]ecause the district 

court’s findings, which were based on the court’s weighing of 

all of the relevant evidence presented at trial, would have 

yielded the same conclusion under a proper assignment of the 

burden of proof, any error with regard to the burden of proof is 

harmless.”). For the reasons explained below, the district 

court had ample evidence that Scott was available as a witness 

only to his own cause, and his testimony was material.

It is clear that, as the plaintiff, Scott was available to 

testify on his own behalf. See Neeley, 211 S.E.2d at 107 

(“[T]he witness is available if he ‘is in such relationship with 

the party that it is likely that his presence could be 

procured.’”). As plaintiff, it was “likely” that Scott could 

have procured his own presence. The only evidence in the record 

regarding Scott’s availability came from Dr. Macedo, who 

testified on the advisability of Scott’s continued attendance at 

trial. Dr. Macedo never discussed whether Scott could testify. 

Indeed, the record suggests that Scott was deposed for several 

hours leading up to trial with no apparent concerns. 

Importantly, Scott himself concedes that he was available to 
12

testify when he states on appeal that “[h]ad Plaintiff been 

aware that the missing witness instruction would be given, he 

would certainly have testified.” (Opening Br. of Appellant at 

30.) 

Scott argues, however, that he was similarly available to 

Defendants. He observes that he appeared on Defendants’ witness 

list, and would have been available had he been properly 

subpoenaed. But this contention ignores the fact that Scott led

the court and Defendants to believe that he would in fact 

testify until well after the deadline for obtaining a timely 

subpoena. The district court even went so far as to exclaim 

that “never in my life did I think that the Plaintiff was not 

going to be testifying in this case.” (J.A. 332.) Under these 

circumstances, it strains credulity to suggest that Scott was 

equally available to Defendants. 

Similarly, it is clear that Scott’s testimony would have 

been material. Scott suggests in his brief that his testimony 

was not material for two reasons: that he suffered from amnesia 

and would be unable to recall the accident; and that his

testimony would have been merely cumulative because the court 

heard from other eyewitnesses to the accident. We find neither 

reason persuasive.

Scott’s claim that he suffered from amnesia is belied by 

even a cursory review of the record. In his deposition (which 
13

was only made part of the record by order of the district 

court), Scott testified at length as to the events leading up 

to, and including the accident. And during trial, one of 

Scott’s treating physicians opined that Scott had at least 

“partial recollection” of the accident, and that “[i]f he had 

amnesia for any period of time, it was extremely short.” (J.A. 

314.) In other words, there was ample evidence from which the 

district court could conclude that Scott had sufficient memory 

that he could testify to at least some of the events that 

transpired when the accident occurred. 

We are similarly not persuaded that Scott’s testimony would

have been merely cumulative, especially in the context of a 

trial about whether Scott was contributorily negligent. The 

district court observed at length the myriad subjects over which 

Scott, and Scott alone, could testify. These include Scott’s 

training and experience with a motorcycle, Scott’s admission (in 

his deposition) that he stalled the motorcycle a few blocks from 

the accident, and his familiarity with the intersection. 

Moreover, only Scott could provide evidence as to the ongoing 

significance of the injuries to him, thus laying a foundation 

for damages. 

Critical, moreover, to our discussion of materiality is the 

district court’s analysis of the inconsistencies between Scott’s 
14

deposition testimony and other evidence adduced by Scott 

throughout the trial. 

For example, [Scott] testified that he did not stop at 

the intersection and intended to keep moving through 

the intersection when the accident occurred. Yet, two 

of [Scott’s] eyewitnesses . . . testified that 

Plaintiff stopped at the intersection before he 

entered it. Indeed, contrary to [Scott’s] testimony 

during the deposition, the parties stipulated that 

“prior to the incident, Mr. Scott was stopped at the 

white cross line, slash, stop bar in the middle lane 

of West Broad Street.” Perhaps this significant 

inconsistency explains [Scott’s] decision not to 

testify. 

(J.A. 624 (internal citations omitted).)

In short, there can be little doubt that Scott was 

available to testify, and would have provided material 

testimony. Accordingly, the district court did not err in 

giving the missing witness instruction, and similarly did not 

err in denying Scott’s motion for a new trial.7

 7 Scott raises two additional claims of error that we will 

briefly dispense with. He asserts first that the district court 

erred by reversing its decision not to give a missing witness 

instruction. But Scott has not identified how he was prejudiced 

in any way by the court’s change of heart. In the absence of 

any prejudice, we decline to say that the court committed 

reversible error.

Scott also claims that the court erred by excluding certain 

medical evidence. Again, however, Scott cannot demonstrate 

prejudice. The jury concluded specifically that the Defendants 

were not negligent. It thus never considered damages—the only 

issue to which the medical evidence would have been germane. 
15

IV.

For the foregoing reasons, the judgment of the district 

court is affirmed. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

AFFIRMED