United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1875

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Greyhound Lines, Inc., *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Robert Wade; and *

Archway Cookies, LLC, * 

doing business as Specialty Foods, *

*

Appellants. *

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Submitted: December 15, 2006

Filed: April 24, 2007

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Before BYE, COLLOTON, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Greyhound Lines, Inc. sued Robert N. Wade and Archway Cookies, LLC

(collectively Archway). In August 2000, an Archway truck driven by Wade rearended a Greyhound bus operated by Debra Johnson on Interstate 80 in Nebraska.
1

The Honorable F.A. Gossett III, United States Magistrate Judge for the District

of Nebraska. 

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After a bench trial, the district court1

 apportioned fault at 85 percent to Archway and

15 percent to Greyhound. Archway appeals, asserting the court erred in refusing

sanctions, determining credibility and competency of a witness, and apportioning

fault. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

 At the time of the collision, due to mechanical failure, the Greyhound bus was

traveling below the posted minimum speed, in the right lane, hazard lights flashing,

as the driver tried to reach the nearest off-ramp. The bus had an electronic control

module (ECM) that stored information, including speed, starts, stops, and the time and

type of a mechanical failure. Ten days after the accident, Greyhound removed the

ECM and retrieved the information. The ECM indicated that a speed-sensor failure

caused the bus's slow speed. Greyhound then sent the ECM to the engine

manufacturer, who erased the information before this case was filed. Archway

requested sanctions against Greyhound for spoliation of evidence, and misleading and

false discovery responses. The district court denied Archway's motions.

This court reviews the imposition of sanctions for an abuse of discretion. See

Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 745 (8th Cir. 2004). The district

court, familiar with the case and counsel, receives substantial deference in determining

sanctions. See Willhite v. Collins, 459 F.3d 866, 869 (8th Cir. 2006). If the court

bases its ruling on "an erroneous view of the law or on a clearly erroneous assessment

of the evidence," the court abuses its discretion. Plaintiffs' Baycol Steering Comm.

v. Bayer Corp., 419 F.3d 794, 802 (8th Cir. 2005). 
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Archway contends that Greyhound deserves sanctions for destroying the ECM

data and giving evasive and misleading responses in discovery. According to

Archway, Greyhound had a duty to preserve the ECM data because litigation was

likely, and the ECM data detailed the bus's operation before the accident. Archway

believes that by failing to retain the ECM data, Greyhound prevented identifying when

and where the bus first had problems. As to the discovery responses, Archway alleges

that Greyhound's initial interrogatory responses identified a "vapor lock" as the

mechanical impairment, although Greyhound knew it was a speed-sensor failure.

Archway claims that three months before trial, it learned about the ECM data and the

speed-sensor failure. 

A spoliation-of-evidence sanction requires "a finding of intentional destruction

indicating a desire to suppress the truth." Stevenson, 354 F.3d at 746; see Richter v.

City of Omaha, __ N.W.2d __, 2007WL865842 at *4 (Neb. March 23, 2007)

(unfavorable inference where "spoliation or destruction was intentional and indicates

fraud and a desire to suppress the truth"). "Intent is rarely proved by direct evidence,

and a district court has substantial leeway to determine intent through consideration

of circumstantial evidence, witness credibility, motives of the witnesses in a particular

case, and other factors." Morris v. Union Pac. R.R., 373 F.3d 896, 902 (8th Cir.

2004).

Before, during and after trial, the district court reviewed Archway's spoliation

claims, each time denying sanctions. Archway argues that because litigation was

likely, Greyhound had a duty to preserve the ECM data. The ultimate focus for

imposing sanctions for spoliation of evidence is the intentional destruction of evidence

indicating a desire to suppress the truth, not the prospect of litigation. Morris, 373

F.3d at 901. Thus, the district court did not err in finding spoliation had not occurred.

Additionally, although some material was not preserved, the ECM data identified the

specific mechanical defect that slowed the bus, and several bus passengers testified

how the bus acted before the collision. See Stevenson, 354 F.3d at 748 ("There must
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be a finding of prejudice to the opposing party before imposing a sanction for

destruction of evidence").

As to the discovery responses, the district court found that Greyhound's answers

were responsive and that Archway was not prejudiced by untimely disclosure. See

Martin v. DaimlerChrysler Corp., 251 F.3d 691, 694 (8th Cir. 2001) (sanctions

"under either Rule 37 of the Federal Rules of Civil Procedure or the inherent powers

of the district court" are reviewed for abuse of discretion). Because Archway received

responsive answers months before trial, the district court properly refused discovery

sanctions.

 

The district court did not base its determinations on an erroneous view of the

law or the evidence, and did not abuse its discretion by refusing sanctions against

Greyhound.

II.

Under Federal Rule of Evidence 601, in this diversity case Nebraska law

governs the competency of Debra Johnson to testify. See Fed. R. Evid. 601 (when

"State law supplies the rule of decision, the competency of a witness shall be

determined in accordance with State law"); see also Neb. Rev. Stat. § 27-601.

Competency of a witness is reviewed for abuse of discretion. United States v. Peyro,

786 F.2d 826, 830 (8th Cir. 1986). 

Challenging Johnson's competency, Archway cites her statements that she

cannot handle her business and legal affairs. Johnson suffers from a serious brain

impairment "that makes normal thinking and processing almost impossible," partly

due to this very collision. After a pre-trial hearing, the district court, seeing and

hearing Johnson's testimony, was satisfied with her ability to recall the events at issue.

The court concluded that she was competent to testify, and that her testimony on the
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whole was accurate and reliable. On this record, the district court was within its

discretion.

 

Archway also argues that the district court erred in deciding factual issues based

upon Johnson's testimony. Findings of fact are reviewed for clear error. Amtrust,

Inc. v. Larson, 388 F.3d 594, 600 (8th Cir. 2004). The district court's evidentiary

rulings at trial merit substantial deference. McPheeters v. Black & Veatch Corp., 427

F.3d 1095, 1103 (8th Cir. 2005). Just as admission of Johnson's testimony was not

error, the district court did not clearly err in allowing her testimony to be the basis of

other testimony, or in using the testimony for factual findings.

After trial, Archway moved to alter or amend the judgment, and for relief from

judgment under Federal Rules of Civil Procedure 59(e), 60(b)(2) and (3). Before and

at trial, Johnson said her felony conviction was for failure to make payments on a car

purchased on a "lease with option to buy" contract. In fact, the felony was for failure

to return a rental car rented under a false address and telephone number. Archway

reasons that evidence of a past felony conviction should make Johnson's testimony

unusable by the experts and the judge. The district court denied the motions. 

Denial of these post-trial motions is reviewed for abuse of discretion. Harley

v. Zoesch, 413 F.3d 866, 870 (8th Cir. 2005); Broadway v. Norris, 193 F.3d 987, 989

(8th Cir. 1999). To prevail on a Rule 59(e) or Rule 60(b)(2) motion, a party must

show that (1) the evidence was discovered after trial; (2) the movant exercised due

diligence to discover it before the end of trial; (3) the evidence is material and not

merely cumulative or impeaching; and (4) the evidence would probably produce a

different result. See United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933

n.3 (8th Cir. 2006) ("Rule 59(e) or Rule 60(b)(2) are analyzed identically"). See also

U.S. Xpress Enters., Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir.

2003). Likewise, a Rule 60(b)(3) motion is granted when a party shows "with clear

and convincing evidence, that the opposing party engaged in fraud or
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misrepresentation that prevented the movant from fully and fairly presenting its case."

Harley, 413 F.3d at 870.

The district court did not abuse its discretion in refusing to amend or set aside

the judgment. The evidence of Johnson's conviction was – or should have been –

explored before trial. The district court found that the evidence, if admitted, was

merely cumulative or impeaching. The court further noted that admission of the

evidence would not produce a different result because liability rested not only on

Johnson's testimony, but on the record as a whole. Finally, there is no clear and

convincing evidence of fraud or misrepresentation that prevented Archway from fully

and fairly presenting its case. 

The trial court did not abuse its discretion in denying Archway's challenges to

Johnson's competency and credibility, or Archway's post trial motions. 

III.

Archway requests that fault be apportioned de novo on appeal. To the contrary,

the fact finder assesses and apportions negligence among the parties, and its

apportionment will be reversed only upon a showing of clear error. Mandel v. United

States, 793 F.2d 964, 969 (8th Cir. 1986); Nodaway Valley Bank v. Cont'l Cas. Co.,

916 F.2d 1362, 1365 (8th Cir. 1990); seeBaldwin v. City of Omaha, 607 N.W.2d 841,

853 (Neb. 2000) ("apportionment is solely a matter for the fact finder"). 

Archway claims the district court should have separated Greyhound's

negligence from that of its driver, Johnson. Archway requests that Greyhound's

percent of liability be increased for failing to implement safety and communication

measures to prevent the accident. 

As clear from the ruling on the post-trial motions, the district court apportioned

some fault to Greyhound principally because as a common carrier it had a higher duty
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of care. See Ware v. Yellow Cab, Inc., 225 N.W.2d 565, 567 (Neb. 1975). The court

assessed the 15 percent fault because driver Johnson traveled the interstate instead of

parking on the shoulder. On the other hand, the district court found Archway was

"extremely negligent" because its driver Wade did not see a vehicle in plain view

ahead of him under ideal conditions. The district court's assessment of fault is not a

clear error. 

IV.

The judgment of the district court is affirmed.

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