                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 05 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


OSCAR W. AGUILAR, surviving spouse               No.   14-15580
of Nancy Bran, deceased, for and on behalf
of all those entitled by law to recover for      D.C. No. 2:11-cv-01385-HRH
the death of Nancy Bran,

              Plaintiff-Appellant,               MEMORANDUM*

 v.

WERNER ENTERPRISES, INC. and
RONALD WAYNE MAUPIN,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Ronald S.W. Lew, District Judge, Presiding

                    Argued and Submitted November 14, 2016
                            San Francisco, California

Before: REINHARDT and OWENS, Circuit Judges, and MENDOZA,** District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Salvador Mendoza, Jr., District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
      Oscar W. Aguilar appeals the district court’s order denying his Rule 59

motion for a new trial following the jury’s determination that Defendants-

Appellees were not liable for the death of Aguilar’s wife. We AFFIRM.

      1. The district court reasonably found that the jury could have relied on Dr.

Edwards’s testimony that the defendant likely checked his mirrors and began

braking when he could not change lanes as a reasonable person would have done.

This evidence alone was sufficient for this court to affirm. See Kode v. Carlson,

596 F.3d 608, 612 (9th Cir. 2010) (“[W]e reverse for a clear abuse of discretion

only where there is an absolute absence of evidence to support the jury’s verdict.”

(citation omitted)).

      2. Because Dr. Dawes’s testimony only pertained to comparative fault – an

issue the jury did not reach because it found defendants entirely faultless – there is

no possibility that Dr. Dawes’s testimony prejudiced the plaintiff. See United

States v. 4.85 Acres of Land, 546 F.3d 613, 617 (9th Cir. 2008) (“To reverse a jury

verdict for evidentiary error, we must find that the trial court abused its discretion

in a manner that prejudiced the appealing party.”). Therefore, it is unnecessary to

address whether Dr. Dawes was sufficiently reliable.

      3. The district court properly sustained defense counsel’s objections during

direct examination of Dr. Philbrick. Plaintiff’s counsel failed to properly qualify


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Dr. Philbrick as an expert before asking questions requiring expertise in trucking.

The district court also properly sustained objections to questions outside the scope

of the witness’s area of expertise. Moreover, because plaintiff’s counsel had the

opportunity to establish the proper foundation and rephrase questions while Dr.

Philbrick was still on the stand, Aguilar suffered no prejudice from the district

court’s rulings.

      4. The district court did not abuse its discretion when it prevented Dr. Stein

from testifying as to the cause of the accident at the center of this case. Moreover,

even if the district court’s ruling was erroneous, Aguilar suffered no prejudice as a

result: plaintiff’s counsel had sufficient opportunity to rephrase his question or lay

any necessary foundation to establish Dr. Stein’s expertise in assessing the cause of

accidents.

      5. Aguilar has not demonstrated judicial misconduct or bias rising to the

level of “a disposition . . . to treat [him] unfairly,” nor has he made “a clear and

precise showing of prejudice.” See Stuart v. United States, 23 F.3d 1483, 1486

(9th Cir. 1994) (citation omitted). The district court’s evidentiary rulings were not

abuses of discretion for the reasons explained above. The district court’s statement

about preventing runaway verdicts was a reasonable comment to induce settlement.

The district court’s statement “Your country is the United States. You’re a citizen”


                                            3
was inappropriate and irrelevant to the plaintiff’s testimony about customs in his

country of origin. However, because Aguilar has not demonstrated how this

isolated comment resulted in unfair treatment during the trial or how that comment

prejudiced him to the jury, the comment does not warrant reversal.

      6. Because the district court did not commit multiple errors, reversing for

cumulative error is unwarranted.

      Accordingly, we AFFIRM.




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