                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 20a0254p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 A. K., a Minor by and Through his Parents,                  ┐
 Guardians, and Next Friends, Timothy Kocher and             │
 Teresa D. Kocher; TIMOTHY KOCHER; TERESA D.                 │
 KOCHER,                                                      >        Nos. 18-6008/6020
                                                             │
                Plaintiffs-Appellants/Cross-Appellees,       │
                                                             │
        v.                                                   │
                                                             │
                                                             │
 DURHAM SCHOOL SERVICES, L.P.,                               │
              Defendant-Appellee/Cross-Appellant.            │
                                                             ┘

                         Appeal from the United States District Court
                      for the Western District of Tennessee at Memphis.
                No. 2:15-cv-02663—John Thomas Fowlkes, Jr., District Judge.

                                    Argued: August 8, 2019

                              Decided and Filed: August 11, 2020

                      Before: CLAY, LARSEN, and READLER, Circuit Judges.
                                  _________________

                                            COUNSEL

ARGUED: John R. Holton, HOLTON LAW FIRM, PLLC, Memphis, Tennessee, for
Appellants/Cross-Appellees. Melissa A. Murphy-Petros, WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP, Chicago, Illinois, for Appellee/Cross-Appellant. ON BRIEF:
Timothy R. Holton, HOLTON LAW FIRM, PLLC, Memphis, Tennessee, for Appellants/Cross-
Appellees.   Melissa A. Murphy-Petros, WILSON ELSER MOSKOWITZ EDELMAN
& DICKER LLP, Chicago, Illinois, John I. Houseal, Jr., Andre B. Mathis, GLANKLER
BROWN, PLLC, Memphis, Tennessee, for Appellee/Cross-Appellant.

         LARSEN, J., delivered the opinion of the court in which READLER, J., joined. CLAY,
J. (pp. 11–17), delivered a separate dissenting opinion.
 Nos. 18-6008/6020           A. K., et al. v. Durham School Services, L.P.                 Page 2


                                       _________________

                                            OPINION
                                       _________________

        LARSEN, Circuit Judge. This is a tragic case in which a thirteen-year-old boy was
struck by a truck while riding his bicycle to school after he missed his school bus. The boy’s
parents, Timothy and Teresa Kocher (the Kochers), acting on behalf of their son, sued the bus
company, Durham School Services, for negligence. Although a jury found Durham negligent,
the jury also found the Kochers more than 50 percent responsible for the accident. Accordingly,
Tennessee’s comparative negligence law barred the Kochers from recovering. The Kochers
appealed, challenging the district court’s exclusion of evidence and expert testimony. For the
reasons below, we AFFIRM the judgment of the district court and DISMISS Durham’s cross
appeal as moot.

                                                 I.

        On October 23, 2014, A.K., a thirteen-year-old student at Appling Middle School in
Bartlett, Tennessee, missed his school bus. Linda Threat, an employee of Durham School
Services, was the bus driver. A.K.’s school bus arrived at his stop at 6:28 a.m.—seven minutes
before its official scheduled time of arrival. After A.K. arrived at his designated stop and
realized that the bus was gone, he ran back home to retrieve his bicycle so that he could ride it to
school. A.K.’s father heard him return to the house and heard A.K. shout that he was going to
ride his bike to school. While riding to school, A.K. was struck by a truck and suffered severe
injuries as a result.

        The Kochers, acting on behalf of their son, sued the truck’s driver in Tennessee state
court but settled their claim with him. They also sued Durham in state court, alleging negligence
and seeking compensatory and punitive damages. Durham removed the action to the Western
District of Tennessee pursuant to 28 U.S.C. § 1332.

        The Kochers filed a motion for partial summary judgment, asking the district court to
find that certain facts were not in dispute. The district court denied the motion. Later, Durham
moved for summary judgment. It argued that it did not owe a duty of care to A.K. because A.K.
 Nos. 18-6008/6020               A. K., et al. v. Durham School Services, L.P.                            Page 3


never came into Durham’s custody or control on the date of the accident, and that even if it did
owe a duty to A.K., the duty ended once A.K. returned home, to the custody and care of his
father. Durham also argued that it was not the proximate cause of A.K.’s injuries. The district
court denied Durham’s motion.1

        The case proceeded to trial. At trial, the Kochers’ basic theory was that Durham could
have prevented Threat from leaving A.K.’s bus stop before the scheduled departure time had it
followed its own policies and procedures. They argued that the early departure breached a duty
of care owed to A.K. and was the proximate cause of A.K.’s injuries. Durham maintained that it
was not the proximate cause of A.K.’s injuries, and the Kochers and the truck driver were at
fault. Durham argued that the Kochers had failed to protect A.K. from an unreasonable risk of
harm by allowing him to ride his bike, given that it was dark outside, the roads were busy, and
A.K. lacked proper safety equipment, and that the truck driver had failed to adjust to the
conditions that led to the accident, including the condition of his truck and the poor visibility in
the pre-dawn hours. The jury found Durham negligent, but pursuant to Durham’s affirmative
defense of comparative negligence, allocated fault as follows: 56 percent to the Kochers,
28 percent to the driver of the pick-up truck, and 16 percent to Durham. Because the Kochers
were more than 50 percent at fault, the court entered judgment in Durham’s favor, as required by
Tennessee law. See Tenn. Code Ann. § 29-39-102(b). The trial court denied the Kochers’
motion for a new trial, and they timely appealed.

                                                        II.

        The Kochers take issue with two evidentiary rulings below: the district court’s ruling
preventing them from introducing Durham’s employee handbook or testimony regarding its
internal policies and procedures, and the district court’s exclusion of its expert witness.

        Internal Policies and Procedures.              The district court prevented the Kochers from
admitting Durham’s employee handbook into evidence or eliciting testimony about its contents
or other internal Durham policies. In a pre-trial motion, Durham had argued that Tennessee law

        1In this court, Durham filed a conditional cross appeal limited to the duty question; they did not appeal on
the question of proximate cause, and so that question is not before us. Because we affirm the district court’s
judgment in favor of Durham, we dismiss the cross-appeal as moot.
 Nos. 18-6008/6020                 A. K., et al. v. Durham School Services, L.P.                               Page 4


did not allow the “use of ‘guidelines’ and ‘safety rules’ to establish the standard/duty of care.”
The thrust of Durham’s argument seemed to be that the jury might mistakenly equate a breach of
Durham’s internal policies and procedures with breach of a legal duty. Citing Johnson v.
Rowsell, No. M2009-00731-COA-R3-CV, 2009 WL 3460365 (Tenn. Ct. App. Oct. 27 2009), the
district court agreed with Durham, concluding that, under Tennessee law, a company’s internal
policies and procedures do not “create[] a legal duty” and might not even be “admissible for any
purpose whatsoever.” The Kochers say that this ruling was an abuse of discretion because, on
their reading of Tennessee caselaw, a company’s internal policies may be admitted for many
purposes, including to show negligence. Durham disagrees. We need not decide whether the
trial court correctly interpreted the Tennessee cases2 because, even if it was error for the district
court to exclude Durham’s internal policies, the Kochers have not shown any effect on their
substantial rights. See Fed. R. Evid. 103(a) (“A party may claim error in a ruling to admit or
exclude evidence only if the error affects a substantial right of the party . . . .”); Fed R. Civ. P. 61
(“At every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party’s substantial rights.”); 28 U.S.C. § 2111 (“On the hearing of any appeal . . . , the
court shall give judgment after an examination of the record without regard to errors or defects
which do not affect the substantial rights of the parties.”).

         First, a word on who bears the burden of showing harm. Because this is a civil case, the
Kochers, as “the party that ‘seeks to have a judgment set aside because of an erroneous ruling[,]
carr[y] the burden of showing that prejudice resulted.’” Shinseki v. Sanders, 556 U.S. 396, 409,
411 (2009) (quoting Palmer v. Hoffman, 318 U.S. 109, 116 (1943)). We note that before the
Supreme Court’s decision in Shinseki, this court in Beck v. Haik, 377 F.3d 624, 635 (6th Cir.
2004), overruled on other grounds by Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009), affirmed
the Kotteakos standard as the rule governing harmless-error analysis in civil cases.
         2Whether    evidence is admissible in federal court is ordinarily a question of federal law, even in a diversity
case. Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000). But some state law rules that
“result[] in the exclusion of evidence, . . . in fact serve substantive state policies or are intimately bound up with
state created rights and obligations.” 19 Charles Alan Wright et al., Federal Practice and Procedure § 4512 (3d ed.
supp. 2019). These state “‘substantive rules of evidence,’ . . . have been enforced in federal court” in appropriate
cases. Id. (collecting cases). Both parties in this court, and in the district court below, assumed that Tennessee law
governed the admissibility question. We have no reason to question that assumption because we ultimately
conclude that the Kochers have not shown harm, as required by Federal Rule of Evidence 103 and Federal Rule of
Civil Procedure 61, which clearly apply regardless of the source of the underlying evidentiary rule.
 Nos. 18-6008/6020                 A. K., et al. v. Durham School Services, L.P.                               Page 5


See Kotteakos v. United States, 328 U.S. 750, 765 (1946). Kotteakos, which is used to assess the
harm caused by non-constitutional trial errors in criminal cases, places the burden on the
government (typically, the appellee) to show that an error was harmless. Id. at 760. In a
criminal case, in other words, the tie goes to the criminal defendant.

         To the extent that Beck and subsequent published decisions of this court, see, e.g., Griffin
v. Finkbeiner, 689 F.3d 584, 599 (6th Cir. 2012); Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 676
(6th Cir. 2010); Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 409–10 (6th Cir.
2006), endorsed this allocation of the burden for civil cases, the rule does not survive Shinseki.3
In Shinseki, the Supreme Court expressly rejected the idea of placing the burden of proving
harmlessness on the appellee in a civil case, announcing that “we have placed such a burden on
the appellee only when the matter underlying review was criminal.” 556 U.S. at 410–11 (citing
Kotteakos, 328 U.S at 760). In other words, Shinseki holds that in a civil case, the tie goes to the
verdict.4


         3Our    cases have not been consistent in terms of whether to presume harm from error. Some seem to
presume that errors are harmful. See Tamraz, 620 F.3d at 676 (“Having concluded that Dr. Carlini’s causation
testimony exceeded the permissible boundaries of Rule 702, we must reverse unless we can ‘say, with fair
assurance, . . . that the judgment was not substantially swayed by the error.’” (quoting Mike’s Train House, 472 F.3d
at 409–10) (emphasis added) (alteration in original)); see also Griffin, 689 F.3d at 599 (“This evidence may not have
swayed the jury if it had been admitted, but we cannot say, with fair assurance that it could not possibly have done
so.” (internal quotation marks omitted)); Mike’s Train House, 472 F.3d at 410 (remanding for a new trial because it
was “impossible to conclude with any certainty that [the error] did not sway the jury’s verdict”). Others, including
Beck itself, give mixed signals. See Beck, 377 F.3d at 635–36 (stating that “[t]his 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
outcome-determinative, as under Kotteakos” but also stating that “[i]f we do not have a ‘fair assurance’ that the
trial’s outcome was not altered by the error, we must reverse.” (first and third emphasis added)).
         4Shinseki  involved appellate review of an agency decision. But the Supreme Court left no doubt that the
rule it announced applied also in “ordinary civil case[s].” Shinseki, 556 U.S. at 407, 411 (“We have no indication of
any relevant distinction between the manner in which reviewing courts treat civil and administrative cases.
Consequently, we assess the lawfulness of the [lower court’s] approach in light of our general case law governing
application of the harmless-error standard.”). Before Shinseki, nearly every circuit already followed Shinseki’s
“tie-to-the-verdict” rule in civil cases. See Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102 (1st Cir. 1997);
Tesser v. Bd. of Educ., 370 F.3d 314, 319 (2d Cir. 2004); Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088,
1093 (5th Cir. 1981); Farfaras v. Citizens Bank & Tr. of Chicago, 433 F.3d 558, 564–65 (7th Cir. 2006); Gill v.
Maciejewski, 546 F.3d 557, 562 (8th Cir. 2008); Coletti v. Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir.
1999); Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1352 (11th Cir. 2007); Frank R. Jellef, Inc. v. Braden,
233 F.2d 671, 680 n.22 (D.C. Cir. 1956). Nearly all those that did not, applied it afterward. See Morgan v.
Covington Twp., 648 F.3d 172, 180 (3d Cir. 2011) (citing Shinseki, 556 U.S. at 410); see also Dorman v. Annapolis
OB-GYN Assocs., P.A., 781 F. App’x 136, 142 (4th Cir. 2019) (citing Shinseki, 556 U.S. at 410). After Shinseki,
only the Ninth Circuit seems still to apply the rule that the beneficiary of an error in a civil case bears the burden of
showing the absence of harm. See Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 464–65 (9th Cir. 2014).
 Nos. 18-6008/6020               A. K., et al. v. Durham School Services, L.P.                          Page 6


        Accordingly, the Kochers must demonstrate that any errors affected their substantial
rights. See Fed. R. Evid. 103(a); Fed R. Civ. P. 61; 28 U.S.C. § 2111. The Kochers have not
shown this. First, the evidence the Kochers deem critical, the employee handbook and any other
written policies, is nowhere in the record, so we have no way to review for ourselves what these
documents say.5 At oral argument, the Kochers represented that Durham’s “policy says . . . that
you must run the route as scheduled and a bus driver is never allowed to change a route without
approval.” Durham does not dispute that assertion. Even so, we still cannot conclude that the
Kochers have shown prejudice from the policies’ exclusion.

        The trial court denied the Kochers’ motion for a new trial on the ground that any
evidentiary error was harmless because the jury did find Durham negligent, even without having
access to the employee handbook or testimony regarding Durham’s internal policies. On appeal,
the Kochers seem to acknowledge this point. Accordingly, they emphasize that, because this
was a comparative fault case, “the jury was not only tasked with finding out whether Durham
was negligent, but also how negligent they were in comparison with the Plaintiffs and the
non-party [truck driver].”

        The Tennessee Supreme Court has established a nonexclusive set of factors for juries to
consider when “apportioning fault between the negligent parties.” Eaton v. McLain, 891 S.W.2d
587, 593 (Tenn. 1994). The Kochers center their appellate argument around these factors. They
argue that, without the handbook or other evidence about Durham’s internal policies, the jury
could not properly assess two of the Eaton factors: “the reasonableness of the party’s conduct in
confronting a risk, such as whether the party knew of the risk, or should have known of it” and




        5At    oral argument, counsel for the Kochers stated that, “[t]o [his] knowledge, [the policies] were
introduced.” And counsel for Durham said she believed the policies and procedures were filed as sealed
attachments to the summary judgment filing but were never introduced to the district court as an official offer of
proof. But the policies are not attached to Durham’s motion for summary judgment. See R. 190; R. 191 (attaching,
inter alia, a document entitled, Pupil Transportation Services Agreement, and a document entitled, Bartlett City
Schools’ Transportation Rules, which do not contain the employee handbook or other policies and procedures that
the parties describe). Although Ted Finlayson Schueler’s expert witness report—attached as a sealed exhibit to
Durham’s motion to exclude his expert testimony—recites excerpts from the Durham Employee Handbook and the
Durham Transportation Procedures 1, we still cannot find the policies themselves in the record.
 Nos. 18-6008/6020               A. K., et al. v. Durham School Services, L.P.                            Page 7


“the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid
the injury to the plaintiff.”6 See id. at 592.

        The Kochers face several obstacles in showing that they were harmed with respect to
these factors. First, they did not make this argument to the trial court. Neither in arguing for the
relevance of the handbook at trial, nor in their new trial motion did the Kochers alert the trial
court to these Eaton factors, or argue how the excluded evidence would have helped the jury
evaluate them. Instead, they argued primarily that the handbook would have been relevant to
proving negligence, a conclusion that the jury reached in any event. As for the handbook’s
relevance to proving Durham’s comparative negligence, the motion for new trial offers only this
conclusory assertion: “Evidence about the policies and procedures of Durham would have likely
caused the jury to find Durham to be significantly more at fault when their own policies and
procedures showed that their conduct was unreasonable under the circumstances.” R. 315,
PageID 3910. The Kochers neither developed this argument, nor offered any citation in support;
they have therefore forfeited “the right to have the argument addressed on appeal.” See Thurman
v. Yellow Freight Sys., Inc., 97 F.3d 833, 835 (6th Cir. 1996) (“[V]ague references to an issue
fail to clearly present it to the district court so as to preserve the issue for appeal.”).

        Second, the jury was never instructed that it was to assess Durham’s comparative fault in
light of the Eaton factors the Kochers now press on appeal. The jury was merely instructed that
it should “weigh the respective contributions of the parties and non-parties, considering the
conduct of each as a whole,” “[d]etermine whether one made a larger contribution than the
other(s),” “[a]nd, if so, to what extent it exceeds that of the other(s).” It does not appear that the
Kochers objected to this instruction or asked that the jury be instructed on any of the Eaton
factors, though the Tennessee Supreme Court indicated in Eaton itself that “[t]he trial court
should . . . include the factors, if applicable, in its instructions to the jury on the fault
apportionment question.” Eaton, 891 S.W.2d at 593. Nor did the Kochers suggest, either here or



        6The    Kochers did not argue that the excluded evidence would have helped the jury assess the latter Eaton
factor until their reply brief. Ordinarily, we do not consider arguments raised for the first time in an appellant’s
reply brief, Am. Trim, L.L.C. v. Oracle Corp., 383 F.3d 462, 477 (6th Cir. 2004); however, whether or not we
consider it here has no effect on the outcome because, as we explain below, the Kochers cannot demonstrate harm.
 Nos. 18-6008/6020           A. K., et al. v. Durham School Services, L.P.                    Page 8


in the district court, that they would have sought such an instruction had the trial court admitted
the policies.

        Finally, the jury heard much of what we are told was contained in Durham’s handbook.
Durham employees Rufus Smith and Greg Newman both testified that Durham expected its
school buses to remain at the bus stop until the scheduled departure time unless the child boarded
the bus earlier. Smith, a safety training supervisor for Durham, testified that parents have an
expectation that the school bus will arrive at its designated stops on time, and if it arrived early,
Smith would expect the bus driver not to depart before the scheduled departure time, unless the
child had arrived earlier. Smith acknowledged that early departure from a stop could pose a
safety concern. He further testified that “[i]t is mandatory that every [bus driver] that comes to
Durham . . . gets an employee handbook,” which “keeps the [driver] informed, in tuned and
addresses any and all expectations of that [driver] as well as any responsibilities that the
company may have to that [driver].” Moreover, Newman, the Regional Manager for Durham,
similarly testified that a bus is expected to arrive on time, that its driver cannot change the time
of a stop, and that the bus is not to depart earlier than the arrival time unless the child had already
boarded the bus.

        The Kochers say that there is a difference between presenting the jury with the
“expectations” of Durham’s supervisors and managers and providing them with its actual,
written policies.   That could be so.       But the question is whether any such difference is
sufficiently significant that it would have made a difference in the trial’s outcome. The Kochers
have not demonstrated that here.        Their claim of harm on appeal rests on the policies’
significance for assessing comparative fault in light of the Eaton factors; but the Kochers neither
argued this theory to the district court in seeking admission of the evidence or a new trial, nor
sought to have the jury instructed to consider any of the Eaton factors. Accordingly, taking all of
this into account, we cannot say the Kochers have demonstrated harm from the district court’s
decision to exclude evidence and testimony regarding Durham’s internal policies and procedures.

        Expert Witness. We turn next to the Kochers’ argument that the district court erred by
excluding their expert witness, Ted Finlayson Schueler. Given its ruling on the policies and
procedures, the district court precluded Schueler from testifying about them. The court also
 Nos. 18-6008/6020                A. K., et al. v. Durham School Services, L.P.                              Page 9


ruled that the case was “simple,” such that expert testimony would not assist the trier of fact. 7
See Fed. R. Evid. 702 (stating that for expert testimony to be admissible, it must “help the trier of
fact to understand the evidence or determine a fact in issue”). Once again, the Kochers have
failed to demonstrate harm from these rulings.

         Because the jury found Durham negligent, the Kochers cannot argue that Schueler’s
testimony was needed to establish breach of a duty or causation. The jury found those elements
without Schueler’s assistance. So, on appeal, the Kochers again turn to the Eaton factors to
argue that Schueler’s testimony would have helped them establish Durham’s greater comparative
fault. Relying on the same two Eaton factors discussed above, they argue that Schueler would
have offered opinions regarding Durham’s failure to adequately train its bus drivers and to
properly monitor available data regarding its drivers’ arrival and departure times. Both, they say,
would have assisted the jury in comparing Durham’s fault to that of the other actors.

         Critically, however, the Kochers failed to offer Schueler’s opinions for the purpose of
weighing the fault of the parties. They did not argue to the district court that Schueler’s
testimony would help establish comparative fault, and Schueler admitted that he did not consider
any of the other parties’ roles in the accident, so he could not have opined directly on the
comparative fault question. The Kochers mentioned nothing of the Eaton factors to the district
court, and as mentioned above, the jury was never instructed to consider these factors. We
cannot conclude that the Kochers have shown harm from the district court’s exclusion of
Schueler’s testimony.




          7The district court also ruled that Schueler could not testify to national standards because the duty of care
was based on Tennessee law. The Kochers do not meaningfully challenge this ruling. In the Kochers’ briefs on
appeal, they state that “the national standards and practices of similar operators” are one of Schueler’s “numerous
relevant opinions that could have assisted the fact finder.” But they stop there; they do not explain why the district
court erred by concluding that testimony related to national standards was not relevant. Because they fail to develop
an argument, we find that the Kochers have forfeited any claim that the district court’s ruling on this score was in
error. See United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) (“[I]t is a settled appellate rule that issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
[forfeited].” (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996))). Schueler’s proffered opinions on
adequate training and the proper monitoring of the available data were largely based on national industry standards.
 Nos. 18-6008/6020          A. K., et al. v. Durham School Services, L.P.             Page 10


                                              ***

        For the reasons stated, we AFFIRM the judgment of the district court. Because we affirm
the judgment of the district court in Durham’s favor, we DISMISS Durham’s cross appeal as
moot.
 Nos. 18-6008/6020           A. K., et al. v. Durham School Services, L.P.               Page 11


                                       _________________

                                            DISSENT
                                       _________________

       CLAY, Circuit Judge, dissenting. The district court excluded two significant pieces of
evidence proffered by Plaintiffs: the Durham School Services pupil transportation policies and
the testimony of Plaintiffs’ expert witness. These rulings were not only incorrect, but baffling in
that the district court permitted testimony regarding Defendant’s expectations for its bus drivers,
while excluding the policies on which the testimony was based. This resulted in the admission
of potentially misleading evidence. Plaintiffs, A.K. and his parents, Timothy and Teresa Kocher,
could not test the truth of the testimony regarding the transportation policies, and they were
prevented from fully examining the witnesses who testified with knowledge of the policies. The
verdict, precluding Plaintiffs’ recovery from Defendant Durham School Services, was likely
unreliable because of these significant evidentiary errors.

       The majority argues that even if the district court erroneously prevented Plaintiffs from
introducing this evidence, the district court’s errors were harmless. However, the majority relies
on an incorrect standard for harmless error to reach this conclusion. In accordance with the
correct standard, we cannot say with “fair assurance” that the district court’s errors did not
“substantially sway[]” the jury’s verdict. Beck v. Haik, 377 F.3d 624, 634 (6th Cir. 2004),
overruled on other grounds by Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009).                 The
erroneously excluded evidence was highly relevant to Plaintiffs’ theory of liability. Therefore, a
new trial was warranted.

       The central issue at trial was liability. The jury found Defendant to be 16% at fault,
Plaintiffs to be 56% at fault, and Danny Bearden (who was a non-party) to be 28% at fault under
the theory of comparative negligence. Under Tennessee law, a plaintiff who bears 50% or more
of the fault is precluded from recovery, Tenn. Code Ann. § 29-39-102(b), and so a mere 7% of
the fault separated Plaintiffs from being able to recover damages. If we find that the district
court committed error, then a new trial would be warranted if the error was not harmless and
instead was prejudicial to the movant’s “substantial rights.” Beck, 377 F.3d at 634 (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). If we “cannot say, with fair assurance,
 Nos. 18-6008/6020           A. K., et al. v. Durham School Services, L.P.                 Page 12


. . . that the judgment was not substantially swayed by the [district court’s] error,” then the error
was not harmless and a motion for a new trial is to be granted. Id.

       While the majority declines to decide whether the district court erred, it is plain that the
district court misapplied Tennessee law in excluding the Defendant’s internal pupil
transportation policies. See Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 833 (Tenn. 2010)
(identifying a defendant hospital policy as part of the material evidence presented at trial in a
sufficiency of the evidence appeal); White v. Metro. Gov’t of Nashville & Davidson Cty.,
860 S.W.2d 49, 52 (Tenn. Ct. App. 1993) (“[C]ompany work rules, while not controlling, are
admissible to demonstrate what the company’s employees should have done in a particular
situation.”); Wilson v. E. Tenn. Human Res. Agency, Inc., No. E2010-01712-COA-R3CV, 2011
WL 1642441, at *8 (Tenn. Ct. App. Apr. 29, 2011) (finding relevant to a negligence claim that a
van driver “was aware of the [defendant’s] policies and procedures” and discussing the contents
of those policies). The district court’s finding that the internal policies were inadmissible
evidence pertinent to Defendant’s negligence was clearly in error.

       It is self-evident that the larger the district court’s error and the slimmer the margin of
victory in a given case, the harder it is to “say, with fair assurance,” that an error was harmless.
Beck, 377 F.3d at 634. The district court’s error in interpreting Tennessee law was not a minor,
isolated occurrence. First, the court refused to admit the written transportation policies into
evidence when Plaintiffs proffered them at trial. The district court then refused to admit any
testimony by Defendant’s employees that even arguably went to matters covered by the policies.
For instance, after Plaintiffs’ counsel told the court that he wished to introduce testimony that
“it’s a standard that school bus drivers cannot change the time of a bus stop,” Defendant’s
counsel objected, arguing “[a]gain, that comes from – that’s the standard because that is
Durham’s policy that you can’t change a bus route . . . . There is no question that it is our
internal polic[y].” R. 300, Trial Tr., Page ID# 3055. The court sustained the objection. Id. at
Page ID# 3057.

       Under Tennessee law, the erroneously excluded evidence was directly material to
Defendant’s fault. As discussed, Tennessee courts have specifically referenced an employee’s
“aware[ness] of the [defendant employer’s] policies and procedures” as evidence of negligent
 Nos. 18-6008/6020           A. K., et al. v. Durham School Services, L.P.                  Page 13


breach of duty. Wilson, 2011 WL 1642441, at *8. Evidence of internal policies also bears on the
application of the factors that the Tennessee Supreme Court set forth in Eaton v. McLain,
891 S.W.2d 587, 592 (Tenn. 1994), which are meant to guide a negligence inquiry and include
“the reasonableness of the party’s conduct in confronting a risk, such as whether the party knew
of the risk, or should have known of it.” If a driver was aware of Defendant’s policies, then a
jury could find that she was on notice as to the risks associated with violating that policy. See
Wilson, 2011 WL 1642441, at *8.

       Plaintiffs were never given the opportunity to show that Threat was aware of Defendant’s
internal pupil transportation policies, or to present the specific provisions of those written
policies. Such a showing would have been directly material to Plaintiffs’ theories of liability,
including that Defendant inadequately trained and supervised Threat, that its conduct fell below
“that degree of care and caution as required of a reasonable, prudent bus operator under the same
or similar circumstances,” and that Defendant should be liable for Threat’s negligent conduct. R.
1-1, Complaint, Page ID# 9–10. In fact, the jury was instructed that because Threat “was an
employee of Durham School Services . . . Linda Threat and Durham School Services should be
considered as one in assigning fault.” R. 304, Trial Tr., Page ID# 3620–21.

       Defendant argues that the testimony of Rufus Smith (Defendant’s safety training
supervisor) and Greg Newman (Defendant’s regional manager responsible for Memphis and its
suburbs) relating to their expectations of bus drivers made the introduction of the specific
policies unnecessary and made their exclusion inconsequential.           It is true that Smith and
Newman testified to some extent about their expectations of bus drivers. See, e.g., R. 300, Trial
Tr., Page ID# 3059 (Smith testified that he generally “would expect that [a] bus [arriving at a
stop early would] wait either for the children to get on at that stop to arrive or until the time that
bus schedule says the bus is going to be there”); R. 301, Trial Tr., Page ID# 3210–15 (Newman
testified about his “expectation[s]” of drivers and what they are “supposed to” do).

       However, neither witness testified that their expectations were communicated to the bus
drivers, that the drivers were required to follow those expectations, or what, if any, consequences
would result if such expectations were not followed. This was in part because the district court
was unyielding in its erroneous application of Tennessee evidence law. As noted above, the
 Nos. 18-6008/6020           A. K., et al. v. Durham School Services, L.P.                 Page 14


district court sustained an objection to Plaintiffs’ question as to whether bus drivers are permitted
to change the time of a bus stop, because this arguably went to matters already covered by
testimony concerning Defendant’s internal policies. It is clear under Tennessee law that such
questioning was permissible, and Defendant is wrong in asserting that evidence as to what
Defendant’s written internal policies actually stated was rendered unnecessarily cumulative by
Smith and Newman’s testimony regarding their expectations of drivers. Instead, Plaintiffs are
correct in asserting that “there is a palpable difference between someone’s unwritten and
unspoken expectations (which is what Newman and Smith testified to) and a written policy.”
Appellants’ Reply Br. at 33.      In fact, the district court’s decision to exclude the policies
themselves impeded the examination of Newman and Smith and rendered their testimony
misleading. Evidence that their expectations were, or were not, communicated to drivers in a
formal, written policy that the drivers were obligated to follow would have been useful, material
information to the jury that could have substantially swayed their verdict. See Wilson, 2011 WL
1642441, at *8; Beck, 377 F.3d at 634. After all, it had been conceded that Threat was habitually
violating Durham’s policies by arriving at A.K.’s stop before the scheduled time. And on the
day of the accident she not only arrived nearly seven minutes early but waited a mere nine
seconds before departing. The district court’s decision to exclude the policies appears especially
prejudicial under these facts because the jury’s designation of just 7% less fault to Plaintiffs
would have allowed them to recover.

       Similarly, testimony by Plaintiffs’ expert would have assisted the jury in understanding
the policies and, because the expert would have testified more generally concerning the pupil
transportation industry, his testimony would have gone to the issue of Durham’s negligence in
not ensuring that driver Threat complied with the policies. If such testimony had been admitted,
the jury would have more fully understood the technologies involved in pupil transportation,
including other pupil transportation and safety options available to Durham, and would have
received an expert appraisal of those options. Such knowledge is not common to lay people and
so the expert’s testimony would have informed the jury’s consideration of “the reasonableness of
the party’s conduct in confronting a risk” and “the extent to which the defendant failed to
reasonably utilize an existing opportunity to avoid the injury to the plaintiff.”             Eaton,
891 S.W.2d at 592.
 Nos. 18-6008/6020          A. K., et al. v. Durham School Services, L.P.                Page 15


       Rather than address these points of law, the majority seeks to dismiss Plaintiffs’ argument
because Plaintiffs did not specifically recite the Eaton factors when they sought to introduce the
policies at trial and Plaintiffs did not request the judge to specifically instruct the jury on the
Eaton factors. Nevertheless, Plaintiffs clearly argued that the policies in question went not only
to the issue of whether Durham was negligent, but to how negligent it was as well. For example,
Plaintiffs argued that “Defendants have yet to offer any reason why weighing Durham’s
negligence . . . should be done without the benefit of knowing what Durham’s policies and
procedures were.” R. 315-1, Pls.’ Mot. for New Trial, Page ID# 3907. The majority erroneously
attempts to reduce Plaintiffs’ claim to one based entirely on Eaton; but Eaton merely provides
greater support for Plaintiffs’ position regarding comparative negligence.

       Additionally, Plaintiffs persuasively argued below that “[e]vidence about the policies and
procedures of Durham would very likely have caused the jury to find Durham to be significantly
more at fault when their own policies and procedures showed that their conduct was
unreasonable under the circumstances.” Id. at Page ID# 3910. In arguing that this sentence was
insufficient to preserve Plaintiffs’ argument, the majority conveniently ignores the statement that
immediately preceded it: “The unfair prejudice Plaintiffs experienced under this Court’s rulings
on policies and procedures is especially palpable when considering that the jury’s verdict found
Durham negligent and at fault, and so the question became how negligent and at fault were
they?” Id. Far from constituting a conclusory assertion of prejudice, this argument connects
Plaintiffs’ thorough discussion of Tennessee evidence law to the relevance of Durham’s policies.

       With respect to their expert, Plaintiffs argued below that the expert “had multitudes of
opinions about what is reasonable and ordinary care under the circumstances. These opinions
are relevant and go to the heart of the case. These opinions would also have helped the jury
understand the facts of the case and the pupil transportation industry generally.” Id. at Page ID#
3916. Therefore, this Court should consider Plaintiffs’ arguments in relation to Eaton, even
though Eaton was not specifically cited in the district court. And, as discussed above, Plaintiffs’
arguments make clear the gravity of the court’s errors.         Rather than the district court’s
evidentiary rulings being harmless, correct evidentiary rulings from the district court may have
 Nos. 18-6008/6020           A. K., et al. v. Durham School Services, L.P.              Page 16


produced an outcome at trial in Plaintiffs’ favor. Consequently, remand is warranted for a new
trial in which all admissible evidence could be presented to the jury.

       The majority also articulates a standard for harmless error that is at odds with our well-
established precedent. We have repeatedly applied the “fair assurance” standard: if we “cannot
say, with fair assurance, . . . that the judgment was not substantially swayed by the [district
court’s] error,” then the error was not harmless and a motion for a new trial should be granted.
Beck, 377 F.3d at 634. The majority simply asserts that “the Kochers must demonstrate that any
errors affected their substantial rights,” without explaining how the Kochers could accomplish
that. Ante at 6.

       In doing so, the majority conflates the Supreme Court’s holding in Shinseki v. Sanders,
556 U.S. 396 (2009), regarding the allocation of the burden of proving harmlessness, with the
content of that burden. The Supreme Court in Shinseki said nothing about the standard we apply
to determine whether there was prejudice. While the Court did indicate that the appellant in a
civil case bears the burden of demonstrating prejudice in a motion for a new trial, this Court has
long held precisely that.    See Clarksville-Montgomery Cty. Sch. Sys. v. U.S. Gypsum Co.,
925 F.2d 993, 1002 (6th Cir. 1991).

       Moreover, contrary to the majority’s assertion of “mixed signals,” ante at 5 n.3, our cases
have consistently applied the “fair assurance” test to determine whether any harm resulted from
the district court’s error. In fact, Beck merely reaffirmed this test as the proper standard.
377 F.3d at 635 (“Th[is] is the traditional formulation of the harmless error standard, deriving
from Kotteakos v. United States[, 328 U.S. 750 (1946)] . . . . We have applied this standard in
civil cases.”). This reaffirmation was necessary because after we established the “fair assurance”
test in Schrand v. Federal Pacific Electric Co., 851 F.2d 152 (6th Cir. 1988), abrogated on other
grounds by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), several panels of this Court
erroneously applied the stricter “different outcome” standard for harmless error. Beck, 377 F.3d
at 635; see also id. (collecting cases applying the “different outcome” standard). The “different
outcome” test provided: “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.” Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 891 (6th Cir. 2004)
 Nos. 18-6008/6020                A. K., et al. v. Durham School Services, L.P.                             Page 17


(quoting Morales v. American Honda Motor Co., 151 F.3d 500, 514 (6th Cir. 1998)). Beck
rightly declined to follow those cases that ignored the “fair assurance” test established in
Schrand, a binding, published case. Beck, 377 F.3d at 635; see also, e.g., Salmi v. Sec’y Health
& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (holding that prior published opinions of this
Court remain binding on future panels “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”). We then found that we did not have a “fair assurance” that the exclusion of
evidence did not substantially sway the verdict below and thus reversed and remanded for a new
trial. Beck, 377 F.3d at 645.1

         Because Shinseki did not address which of these standards is correct, we are bound by our
decision in Schrand and must use the “fair assurance” test. The majority misreads the Supreme
Court’s opinion in Shinseki and arrives at a nebulous standard for harmless error contrary to our
controlling case law. As the foregoing analysis illustrates, under the proper “fair assurance” test,
the district court’s mistakes were far from harmless.

         Ultimately, the district court deprived Plaintiffs of a fair trial by refusing to admit crucial
material evidence in the form of Defendant’s transportation policies and by excluding Plaintiffs’
expert witness testimony. The gravity of the district court’s errors and the slim margin of
Plaintiffs’ loss make it impossible to say, “with fair assurance,” that the error was harmless.
Beck, 377 F.3d at 634. Plaintiffs are entitled to a new trial to present their full case to a jury and
to seek recovery for A.K.’s tragic accident. I therefore respectfully dissent.




         1Contrary   to the majority’s contention, none of the cases it cites that used the “fair assurance” test placed
the burden of showing harmlessness on the appellee in civil trials. On the contrary, in Beck, this Court observed that
applying the erroneous “different outcome” test “would seem to require an appellant to do more than merely deprive
the appellate court of a ‘fair assurance’ that the error was not outcome-determinative, as under Kotteakos.” 377 F.3d
at 635 (first emphasis added); see also Griffin v. Finkbeiner, 689 F.3d 584, 599 (6th Cir. 2012) (citing Fed. R. Evid.
103(a) (explaining that a party challenging the exclusion of evidence must show that “the error affects a substantial
right”)); Mike’s Train House, Inc. v. Lionell, LLC, 472 F.3d 398, 409–10 (6th Cir. 2006); Tamraz v. Lincoln Elec.
Co., 620 F.3d 665, 676 (6th Cir. 2010).
