       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2        Beck, et al. v. Haik, et al.                   No. 01-2723
    ELECTRONIC CITATION: 2004 FED App. 0252P (6th Cir.)
                File Name: 04a0252p.06                                    Decided and Filed: July 29, 2004

                                                              Before: BOGGS, Chief Judge; GILMAN, Circuit Judge;
UNITED STATES COURT OF APPEALS                                          and MARBLEY, District Judge.*
              FOR THE SIXTH CIRCUIT                                               _________________
                _________________
                                                                                       COUNSEL
GALEN BECK, as                  X
                                 -                        ARGUED: Mark R. Bendure, BENDURE & THOMAS,
representative of the estate of                           Detroit, Michigan, for Plaintiffs.    Joseph Nimako,
Eugene Beck; and SHARON          -
                                 -     No. 01-2723        CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia,
BECK,                            -                        Michigan, Mary Massaron Ross, PLUNKETT & COONEY,
         Plaintiffs-Appellants, >                         Detroit, Michigan, for Defendants. ON BRIEF: Mark R.
                                 ,                        Bendure, BENDURE & THOMAS, Detroit, Michigan, Grant
                                 -                        W. Parsons, PARSONS, RINGSMUTH, Traverse City,
           v.                    -                        Michigan, for Plaintiffs. Joseph Nimako, CUMMINGS,
                                 -                        McCLOREY, DAVIS & ACHO, Livonia, Michigan, Mary
EDWARD A. HAIK ,                 -                        Massaron Ross, PLUNKETT & COONEY, Detroit,
individually and officially for  -                        Michigan, for Defendants.
                                 -
Manistee County; and
                                 -                                                _________________
ROBERT C. HORNKOHL,              -
individually and officially as   -                                                    OPINION
Director of Public Safety for    -                                                _________________
City of Manistee,                -
                   Defendants, -                            BOGGS, Chief Judge. The plaintiffs in this 42 U.S.C.
                                 -                        § 1983 civil rights suit appeal from the judgment entered
                                 -                        against them after a jury verdict for the defendants. The
MANISTEE COUNTY; and CITY -                               plaintiffs challenge the correctness of several of the district
OF MANISTEE,                     -                        court’s rulings on the admission of evidence and other trial
        Defendants-Appellees. -                           matters, and argue that the effect of these rulings substantially
                                N                         prejudiced their case. Though we do not accept all of the
                                                          plaintiffs’ contentions, we agree that a number of errors
      Appeal from the United States District Court        occurred, and that these were sufficiently prejudicial to
 for the Western District of Michigan at Grand Rapids.    require a new trial. We therefore reverse and remand.
No. 97-00533—Robert Holmes Bell, Chief District Judge.

                 Argued: June 18, 2003                         *
                                                               The Honorable Algenon L. Marbley, United States District Judge for
                                                          the Southern District of Ohio, sitting by designation.

                            1
No. 01-2723                    Beck, et al. v. Haik, et al.   3    4       Beck, et al. v. Haik, et al.                     No. 01-2723

                               I                                   Kowalkowski, who was not formally trained or certified in
                                                                   dive rescue. By the time of Mr. Beck’s plunge, it included
   This case arose from the June 28, 1995, drowning death of       several officers who were certified in diving, but not in dive
Eugene Beck, who dropped from a bridge (apparently after           rescue.
jumping) into the Manistee River in Manistee, Michigan. The
plaintiffs contend that Mr. Beck died because officials of the       After a fatal drowning accident in the Manistee River in
City and County of Manistee, pursuant to a municipal policy,       1993, a group of trained civilian divers formed a private
prevented qualified civilian rescue divers on the scene from       rescue organization called the Manistee Search and Rescue
saving him, even though the city and county provided no            Dive Team (“MSRDT”). The MSRDT entered into a contract
meaningful alternative rescue service of their own. In an          to provide rescue and recovery services to the City of
earlier, unpublished, opinion, Beck v. Haik, No. 99-1050,          Manistee as needed. The members of the MSRDT carried
2000 WL 1597942 (6th Cir. Oct. 17, 2000), we held that these       pagers, which the city authorities could use to summon the
allegations, if proven, were jointly sufficient to establish a     MSRDT. A protocol developed whereby the City would page
claim under 42 U.S.C. § 1983 for violation of Beck’s due           the county dive team first in case of a water emergency, and
process rights under the Fourteenth Amendment. 2000 WL             would call out the MSRDT if the county team was likely to
1597942 at *4. We upheld the district court’s grant of             have difficulty responding promptly. However, a city
summary judgment dismissing plaintiffs’ other claims. Id. at       memorandum on this subject, produced at trial, included a
*9.                                                                handwritten annotation that “Sheriff Ed” would “decide”
                                                                   when the MSRDT would be called out – apparently a
   On remand, the district court held a seven-day trial. Each      reference to then-Sheriff Edward Haik.1
element of the plaintiffs’ case was significantly contested:
(1) whether the defendants city and county had a policy that          The plaintiffs presented evidence that some local officials
prevented private rescuers from assisting Mr. Beck;                were hostile to the MSRDT’s activities. Art Krause, the
(2) whether the rescue services made available by the              founder of the MSRDT, testified that Sheriff Haik personally
defendants were sufficiently effective to constitute a             told him that he would be subject to arrest if he interfered
“meaningful alternative” to private rescue; and (3) whether        with the county’s operations at a water accident scene.
the Becks were able to show causation, by establishing that        Michael Mosack, a Michigan State Police trainee and also a
Mr. Beck would likely have lived if private rescuers had been      member of the MSRDT, likewise testified that Haik
allowed to dive after him.                                         threatened him with criminal charges if he entered the water
                                                                   at an accident scene. Fred LaPoint, a City of Manistee
   The following facts emerged at trial. In 1993, the Manistee     firefighter and another MSRDT member, testified that he had
County Sheriff’s Department formed a county dive team. The         seen a memo from Manistee County Sheriff Edward Haik
sheriff’s department concluded after consultation with an          stating that all water accident scenes were to be treated as
expert that the county was too large to permit this dive team
to be held out to the public as a “rescue” team; instead, it was
deemed a “recovery” team. There was evidence that this term            1
                                                                         Sheriff Haik was originally named in the Becks’ complaint as a
connoted the simple recovery of bodies, rather than the rescue     defendant in his individual capacity. The district court granted him (and
and resuscitation of drowning victims. For a time, the only        the other individual defendant, Chief Hornkohl) summary judgment on
member of the dive team was then-deputy sheriff Dale               the ground of qualified immunity. W e affirmed that ruling in the Becks’
                                                                   previous ap peal. Beck, 2000 WL 1597942 at *7.
No. 01-2723                   Beck, et al. v. Haik, et al.   5   6    Beck, et al. v. Haik, et al.                No. 01-2723

“crime scenes,” and that anyone who entered such a scene           Firefighter LaPoint also responded to the call. LaPoint
without his permission would be subject to arrest. While no      drove to the scene in a city rescue ambulance designated R5.
official copy of the alleged memo was produced at trial,         However, LaPoint testified that shortly after he arrived, he
several other witnesses acknowledged that they had either        received another call telling him that R5 had been “released.”
seen or heard of such a memo. Sergeant Douglas Cermak of         This, he said, implied that the accident was no longer
the Sheriff’s Department dive team testified that he had seen    considered a rescue scene, but was instead a body recovery
a “crime scene” memo, and that Haik had instructed him to        scene. LaPoint left the scene shortly thereafter.
take “appropriate action” if the MSRDT interfered with a
county dive operation. On the other hand, the defendants           Meanwhile, a Coast Guard boat arrived on the scene at
presented testimony from several local township fire chiefs      10:27 p.m. The local Coast Guard officer, Chief Timothy
who worked with Sheriff Haik, and stated that they had never     Monck, would later testify in a deposition that the Guard had
heard of such an “arrest policy.”                                learned of the incident by a phone call from a private citizen.

  Beck and another man, Mark Sander, plunged into the               The county dive team also responded to the call. Then-
Manistee River at approximately 10:07 p.m. on June 28,           Sergeant Douglas Cermak, a member of the sheriff’s
1995. A bystander saw their fall and immediately called 911.     department, was driving a patrol car with his partner Jim
The county dispatcher called personnel from the Manistee         Doerning when a call from the dispatcher alerted him that
Police Department, the Manistee Fire Department, and the         Beck was in the river. Cermak proceeded to the sheriff’s
Manistee County Sheriff's Department Dive Team (the              office, where he and Doerning gathered their diving
“county dive team”) to the scene.                                equipment. Cermak also put on part of his wet suit. The men
                                                                 left the sheriff’s office at 10:33 p.m. Cermak estimated that
  The Manistee police arrived in time for one of the officers    it took him only a couple of minutes to drive from the
to see Beck disappear beneath the river’s surface at 10:17       sheriff’s office to the river and the scene of the accident.
p.m. They notified both Manistee Police Chief Robert
Hornkohl and the county dive team.                                 At the scene, a partially suited-up member of the MSRDT
                                                                 – apparently Mosack – approached Cermak and asked if the
   The city did not page the MSRDT that night. However,          county team needed help. Cermak told him that the county
Michael Mosack, a member of the MSRDT who was a                  “had everything under control.” Moreover, Mosack testified
Michigan State Police trainee and a certified diver, overheard   that he approached Chief Hornkohl and told him that the
the original 911 call reporting Beck’s plunge. Mosack            MSRDT was ready to attempt a rescue. He testified that
immediately gathered his diving equipment, put on the lower      Hornkohl consulted with Sheriff Haik by radio, and then
half of his wet suit, and drove to the scene. Mosack estimated   instructed the divers not to enter the water. However,
that he arrived between 10:19 and 10:22 p.m., no more than       Hornkohl contradicted this version of events, testifying that
five minutes after Beck went under the water. Another            he was never aware that MSRDT divers were on the scene.
MSRDT diver, Gordon Cole, learned of the situation by            Sheriff Haik likewise denied having any such conversation
overhearing the dispatcher’s call to the fire department. Cole   with Hornkohl. Cole testified that he did not see Chief
drove to the scene with his equipment and arrived shortly        Hornkohl at the scene.
before Mosack did.
No. 01-2723                    Beck, et al. v. Haik, et al.    7    8    Beck, et al. v. Haik, et al.                 No. 01-2723

  Eugene Beck’s mother, Sharon Beck, eventually arrived at          Beck in a bag underwater was in some tension with his
the scene. Firefighter LaPoint physically restrained her to         deposition, in which he had said that the bag containing Beck
prevent her from attempting to rescue Eugene herself.               was “zip[ped] up” at the time the county dive team lifted him
                                                                    into the boat.
   Although the accident scene was quite close to the sheriff’s
office (about a two-minute drive), the county divers did not          Gordon Cole, a defense witness, testified under cross-
enter the water until 11:05 p.m., nearly one hour after Mr.         examination that he saw the county dive personnel lift Beck
Beck’s plunge. Cermak and Doering held on to a tow bar              out of the water by his ankles. He testified that the use of a
attached to the sheriff’s boat. The boat experienced                body bag, and the practice of drawing a victim out of the
mechanical difficulties with its lights and radio, but it           water feet-first, were inconsistent with standard procedures
proceeded into the water. The boat slowly canvassed the             for a live drowning rescue.
river, which was slightly less than 30 feet deep. The water
temperature in the river, as measured by the divers’                  Mosack testified that he did not enter the water on the night
equipment, was 68 degrees. Cermak testified that this reading       of the accident because he feared being arrested under the
was an average, and that the temperature at the river bottom        policy that Sheriff Haik had allegedly announced. Cole, on
was likely somewhat colder.                                         the other hand, testified that such a policy would not have
                                                                    deterred him from attempting a rescue if he had thought he
  Cermak and Doering located Beck on the floor of the river,        had a good chance of rescuing the victim. He testified that he
close to the “last seen” point where he had submerged.              refrained from entering the water on the night of June 28
Cermak grasped him by the body and surfaced with him                simply because the officers on the scene had told him that the
approximately 14 minutes after the county divers had entered        MSRDT was not needed.
the water. The county divers were unable to hoist Beck into
the sheriff’s boat, and instead transferred him onto the Coast        Mosack estimated that if he had dived after Beck, he could
Guard boat, with some difficulty, as will be discussed              have been in the water by 10:22 p.m., five minutes after Beck
momentarily. The personnel on the boat began CPR and                submerged. He estimated that he could then have swum to
other resuscitative measures as they returned Beck to the           Beck’s “last seen” location, brought him to the surface, and
shore and a waiting ambulance. However, Beck did not                swum back with him in three to six minutes. Thus he would
survive.                                                            have been able to return Beck to the shore within
                                                                    approximately ten minutes of his original submergence.
   Chief Monck, the Coast Guard officer who assisted with the
recovery of Beck, testified in a deposition read to the jury that      The plaintiffs bolstered their case with the expert testimony
the county divers placed Beck inside a body bag underwater,         of Dr. Alan Steinman, a former Coast Guard rear admiral and
and zipped up the bag with Beck in it. Cermak testified             the author of numerous articles in the fields of cold-water
somewhat differently: he stated that he asked for a porous          drowning and resuscitation. Steinman had also studied
mesh bag to use as a sling to lift Beck, but was instead given      hundreds of drowning cases in his official capacity at the
a body bag. As the county and Coast Guard personnel tried           Coast Guard. He opined that if Beck had been recovered as
to place Beck partially into the bag to hoist him onto the boat,    late as 24 minutes after submerging, he probably could have
he testified, the bag filled with water and he had to cut it open   been resuscitated. (In his deposition, he had testified that the
with a knife. Cermak’s testimony that the divers did not place
No. 01-2723                   Beck, et al. v. Haik, et al.   9    10   Beck, et al. v. Haik, et al.                 No. 01-2723

cut-off time after which Beck probably would not have             small.” Dr. Dueker criticized as unscientific the Nemiroff
survived was between 20 and 30 minutes after submersion.)         research on which Dr. Steinman had partially relied, because
                                                                  it was based simply on case studies. He noted that other peer-
  Steinman testified that his opinion was based on numerous       reviewed research in the field supported much shorter
published articles, particularly the work of Dr. Martin           survival times in drowning victims. Dueker also testified,
Nemiroff, a researcher who had compiled case studies of           based on his experience as a diver, that a diver who, like
cold-water drowning victims who had been revived after long       Mosack or Cole, arrived at an accident scene before fully
periods of submersion, and concluded that cold water prompts      suiting up, would normally take 10 to 15 minutes to don his
special physiological responses that increase survivability. In   equipment and enter the water.
Beck’s favor were the facts that he was relatively young (age
28) and that his accident occurred in cold water (defined as         At the close of their case-in-chief, the plaintiffs called
less than 70 degrees Fahrenheit). Steinman testified that         Sharon Beck, the deceased’s mother. Mrs. Beck testified to
contemporary professional standards, as adopted by the            a close relationship with her son, and recounted feeling anger
American Heart Association and other national bodies,             and frustration at what she perceived as the county and city’s
recommend that rescuers should make aggressive efforts to         indifference to rescuing him. She testified that she was
resuscitate cold-water drowning victims who had been              undergoing ongoing counseling for this loss. On cross-
submerged for as long as 60 minutes. This “golden hour” was       examination, defense counsel questioned Mrs. Beck about her
generally viewed as marking the outer limit of survivability.     relationship with her son, eliciting testimony that he had an
                                                                  alcohol problem and that the relationship between Beck and
  Steinman admitted on cross-examination that the most            his father was sometimes difficult. At one point, counsel
pronounced increases in survivability in cold-water               asked Mrs. Beck if she was in counseling for other reasons
drownings tended to occur with victims younger than Beck.         besides her son’s death. He then elicited, over the strenuous
He also admitted that if Beck had jumped into the water with      objection of plaintiffs’ counsel, testimony that Mr. and Mrs.
suicidal intent, as some of the evidence suggested, then this     Beck had been accused of child molestation. These
would have decreased his chances of survival. Steinman also       accusations were apparently abandoned after Mrs. Beck
admitted that Dr. Nemiroff’s research had identified only         passed a lie detector test. Plaintiffs’ counsel moved for a
about 50 cases of very long-term survival in about 1500 Coast     mistrial, which was denied.
Guard drowning case studies. However, Steinman contended
that many of these cases involved periods of submersion             In addition to the evidence presented at trial, as discussed
much longer than the 24-minute period in which, he believed,      above, the plaintiffs attempted to enter several other pieces of
Beck probably could have been revived.                            evidence dealing with the county’s response. These were
                                                                  rejected by the district court.
  The County countered Dr. Steinman’s testimony with the
expert testimony of Dr. Christopher Dueker, a diver and a           First, plaintiffs argued that they were entitled to present
specialist in underwater medicine. Dr. Dueker opined that         evidence that the county destroyed the audio dispatch tape of
even if Beck had been recovered within 15 minutes of              the evening’s events despite receiving a Freedom of
submerging, it would have been “unexpected” for him to            Information Act request for it. The dispatch tapes, the
survive, and he would likely have suffered brain damage. By       plaintiffs contended, would have confirmed the sequence of
30 minutes, his chances of survival would be “vanishingly         events on that night, and would have included transmissions
No. 01-2723                    Beck, et al. v. Haik, et al.   11    12    Beck, et al. v. Haik, et al.                 No. 01-2723

between officers that were absent from the written dispatch         efforts were less than ideally effective, this was not relevant
log. The county regularly maintained tapes for thirty days,         to any of the elements of plaintiffs’ case.
then demagnetized and reused them unless a request to
preserve the tape came in. Near the end of the 30-day period,         Third, the plaintiffs attempted to introduce the opinion
an attorney (not a participant in this case) filed a request with   testimony of Steven J. Linton, an experienced dive rescue
the Sheriff’s Department for a copy of the tape containing          instructor and the author of many textbooks and articles on
Beck’s accident. However, the request was not transferred to        the subject. Linton evaluated the municipal policies for water
the dispatcher’s office in time, and the tape was demagnetized      accidents at the time of Beck’s drowning, and severely
on the 30th day. After a separate hearing, the district court       criticized the defendants’ actions. He would have testified
held that plaintiffs had provided no evidence of deliberate         that the use of a tow bar was inappropriate for a rescue
destruction, and excluded the proffered testimony as                scenario like Beck’s, in which would-be rescuers had a good
irrelevant.                                                         “last seen” point. He also criticized the county divers’
                                                                    lengthy delay in entering the water, the use of a body bag to
  Second, plaintiffs proffered a letter that Coast Guard Chief      recover Beck, and the decision to send LaPoint’s rescue
Monck had written to Cheryl Debano-Griffin, the Manistee            ambulance, R5, back from the scene before Beck had been
County dispatch director, shortly after the Beck drowning. In       recovered. Linton concluded from the county’s and city’s
the letter, Monck expressed dismay that the county had failed       activities that “the officials intended not to rescue Beck, but
to notify the Coast Guard of Beck’s plunge. He stated that          simply recover his body.” Finally, Linton would have
the Guard could have responded in two minutes, but due to           testified that if Mosack and Cole had been permitted to enter
the lack of notification, the Guard arrived at the accident 25      the water and dive at the “last seen” point, they would likely
minutes later, after a call from a private citizen. Monck           have had little difficulty finding Beck. Linton opined on
added: “In many instances, the difference between the rescue        causation in his deposition, indicating that if Mosack and
of a cold water near drowning victim and a body recovery is         Cole had been allowed to dive, Beck would have survived.
the timely notification of available rescue agencies.” The
district court had previously quashed plaintiffs’ attempt to          As with the Monck letter, the district court excluded
subpoena Monck, on the ground that he was a military                Linton’s proffered testimony as irrelevant. It reasoned that
serviceman. However, Monck supported the letter with an             “the issue [of whether] this was a perfect rescue operation”
affidavit attesting to its accuracy. The letter had another         was not raised by the trial. Moreover, the court concluded
notable feature: a handwritten annotation that read, “cut tape.”    that “Mr. Linton as this case is focused cannot help the jury
The plaintiffs argued that this annotation must have been           evaluate th[e] question of whether or not this policy or
made by the county dispatcher who received the letter, and          practice in fact caused death.”
that it was relevant to plaintiffs’ claim of spoliation.
                                                                      At the close of all evidence, the district court instructed the
  The district court first held this letter inadmissible as         jury on the three elements of the plaintiffs’ case as follows:
hearsay. Then, when Monck filed his affidavit, the court
reconsidered its ruling and held the letter inadmissible due to       First, that the plaintiffs’ decedent, Eugene Beck, was
a lack of relevancy. It reasoned that the letter dealt with           arbitrarily deprived of his right to private rescue pursuant
matters collateral to Beck’s drowning. Moreover, it reasoned,         to the [defendants’] custom, policy, ordinance,
even if the letter tended to show that the defendants’ rescue         regulation, or decision preventing private rescue efforts.
No. 01-2723                    Beck, et al. v. Haik, et al.   13    14    Beck, et al. v. Haik, et al.                 No. 01-2723

  Second, that the defendant[s] . . . did not provide a             (6th Cir. 1989). The Federal Rules of Civil Procedure use
  meaningful alternative to private rescue efforts.                 similar language. See Fed. R. Civ. P. 61 (“No error in the
                                                                    admission or exclusion of evidence . . . is ground for . . .
  Third, that the defendant[s’] actions were a proximate            disturbing a judgment or order, unless refusal to take such
  cause of the damages sustained by the plaintiffs’                 action appears to the court inconsistent with substantial
  decedent, Eugene Beck.                                            justice.”). Another provision in the same vein appears in the
                                                                    federal judicial code, and applies by its terms to all
The plaintiffs objected to use of the word “preventing” in the      proceedings in the courts of appeals: “On the hearing of any
first element of this instruction. They noted that this court’s     appeal . . . , the court shall give judgment . . . without regard
earlier opinion had used the term “hinder” to describe the          to errors . . . which do not affect the substantial rights of the
kind of government interference with private rescue that a          parties.” 28 U.S.C. § 2111. In McDonough Power Equip.,
plaintiff was required to show. The district court overruled        Inc. v. Greenwood, 464 U.S. 548 (1984), the Supreme Court
this objection. Plaintiffs’ counsel argued in his closing that      held that the “substantial rights” language of § 2111
“prevent” did not necessarily mean physical restraint, but          “incorporates the same principle as that found in [Civil] Rule
merely to “hinder” or “deter” a rescuer.                            61,” id. at 554, which speaks of “substantial justice.” Fed. R.
                                                                    Civ. P. 61.
  The jury received the case on November 21, 2001. At one
point during deliberations, the jurors sent a note to the court,       The “substantial right” standard may elude exact definition,
asking the court to define the term “arbitrary” as used in the      see Charles Wright, Arthur Miller, & Mary Kay Kane,
instructions. At the urging of the plaintiffs, the district court   Federal Practice & Procedure: Civil 2d § 2883 (1995 & Supp.
declined to supply a definition, telling the jury that the term     2004), but our court has explained it in the following terms,
had its ordinary and common meaning in the instructions.            in a case in which we held that reversible error had occurred:
  After four hours of deliberation, the jury returned a general       Th[e] inquiry involves an assessment of the likelihood
verdict for the defendants.                                           that the error affected the outcome of the case. As the
                                                                      Supreme Court has described the test: “[I]f one cannot
  The plaintiffs now appeal, arguing that the district court          say, with fair assurance, . . . that the judgment was not
committed several evidentiary errors that collectively require        substantially swayed by the error, it is impossible to
reversal.                                                             conclude that substantial rights were not affected.”
                                                                      Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct.
                               II                                     1239, 1248, 90 L.Ed. 1557 (1946). Application of this
  This case turns in part on the application of the “harmless         test is highly sensitive to the unique context of the
error” standard that governs mistakes in the admission or             particular case, including the one-sided or closely
exclusion of evidence at trial. This standard is embodied in          balanced nature of the evidence bearing upon the issue
several provisions. The Federal Rules of Evidence state that          which the error arguably affected, and the centrality of
erroneous rulings are grounds for reversal only when “a               that issue to the ultimate decision.
substantial right of [a] party is affected.” Fed. R. Evid.
103(a); Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 103
No. 01-2723                        Beck, et al. v. Haik, et al.      15     16       Beck, et al. v. Haik, et al.                        No. 01-2723

Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 157 (6th                  Schrand is a published opinion adopting the Kotteakos “fair
Cir. 1988) (quoting Jordan v. Medley, 711 F.3d 211, 218-19                  assurance” standard of harmless evidentiary error in a civil
(D.C. Cir. 1983)) (some citations omitted).                                 case. Schrand, 851 F.2d at 157; Taylor, 193 F.3d at 235
                                                                            (classifying the Sixth Circuit as following Kotteakos in civil
   That is the traditional formulation of the harmless error                cases, citing Schrand; embracing the same rule). To the
standard, deriving from Kotteakos v. United States. It calls                extent the language of our later panel decisions is inconsistent
for reversal when the appellate court lacks a “fair assurance”              with this holding, we follow Schrand. “[A] panel of this
that the outcome of a trial was not affected by evidentiary                 [c]ourt cannot overrule the decision of another panel. The
error. We have applied this standard in civil cases, Schrand,               prior decision remains controlling authority unless an
ibid., habeas corpus proceedings, Caldwell v. Bell, 288 F.3d                inconsistent decision of the United States Supreme Court
838, 842 (6th Cir. 2002), and criminal cases, United States v.              requires modification of the decision or this Court sitting en
Haywood, 280 F.3d 715, 724 (6th Cir. 2002). It is also                      banc overrules the prior decision.” Darrah v. City of Oak
followed by most other circuits in both civil and criminal                  Park, 255 F.3d 301, 309 (6th Cir. 2001); accord 6th Cir. R.
cases alike. E.g., Bacou Dalloz USA, Inc. v. Cont’l Polymers,               206(c).
Inc., 344 F.3d 22, 29-30 (1st Cir. 2003); Taylor v. Va. Union
Univ., 193 F.3d 219, 235 (4th Cir. 1999) (en banc); Williams                  Accordingly, we begin by asking whether there was
v. U.S. Elevator Corp., 920 F.2d 1019, 1022-23 (D.C. Cir.                   evidentiary error in the trial. If so, then we “examin[e] the
1990); Aetna Cas. & Sur. Co. v. Gosdin, 803 F.2d 1153, 1159                 proceedings in their entirety,” Kotteakos, 328 U.S. at 762, in
(11th Cir. 1986).                                                           the light of the proofs at trial, to determine whether the errors
                                                                            affected substantial rights. If we do not have a “fair
   However, after Schrand, several of our opinions in civil                 assurance” that the trial’s outcome was not altered by error,
cases stated the following standard: “Even if a mistake has                 we must reverse. Schrand, 851 F.2d at 157.3
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.” Morales v. Am. Honda
Motor Co., Inc., 151 F.3d 500, 514 (6th Cir. 1998) (emphasis                harmless error when it “worke d no substantial prejudice”); Polk, 876 F.2d
                                                                            at 532 (declining to reverse when erroneous evide ntiary decision “could
added); Nida v. Plant Prot. Ass’n Nat., 7 F.3d 522, 527 (6th                not have resulted in a d ifferent resu lt at trial”).
Cir. 1993); Polk v. Yellow Freight Sys., Inc., 876 F.2d 527,
532 (6th Cir. 1989). This version would seem to require an                       3
                                                                                   W hile Schrand held that the Kotteak os standard applies to civil and
appellant to do more than merely deprive the appellate court                criminal cases alike, we do not interpret Schrand to say that the prejudice
of a “fair assurance” that the error was not outcome-                       inquiry must ignore differences between the two types of case. In
determinative, as under Kotteakos. Instead, he must show by                 particular, different burdens of persuasion apply in civil and criminal
a preponderance of the evidence that the error was outcome-                 trials. In a criminal case, where proof must be beyond a reasonable d oub t,
determinative.2                                                             a reviewing court might find itself unable to say, with “fair assura nce,”
                                                                            Kotteakos, 328 U .S. at 765, that a given evidentiary error, or set of errors,
                                                                            was harmless. Reve rsal would then b e required . Yet in an otherwise
                                                                            similar civil trial, the same error or errors might not be enough to shake
    2
                                                                            the court’s fair assurance that the jury still would have found against the
     Oth er formulations tha t have appe ared are more consisten t with     appellant in the absence of the error, in light of the lower, preponderance
Schrand. See Ho rn by Parks v. M adiso n Coun ty Fiscal Ct., 22 F.3d 653,   of the evid ence, standard of proo f. Cf. Schrand, 851 F.2d at 157
662 (6th Cir. 1994) (trial court’s erroneous exclusion of evidence was      (instructing courts to pay attention to “the one-sided or closely balanced
No. 01-2723                        Beck, et al. v. Haik, et al.      17     18   Beck, et al. v. Haik, et al.                 No. 01-2723

                                  III                                          We agree with the plaintiffs that some of Linton’s proposed
                                                                            testimony was relevant to the “meaningful alternative” issue,
  A district court’s decisions to admit or exclude evidence are             and should have been admitted. To be sure, the district court
reviewed for abuse of discretion. United States v. Cline, 362               was right to observe that the question of whether or not “this
F.3d 343, 348 (6th Cir. 2004). An abuse of discretion occurs                was a perfect rescue operation” was irrelevant to the case.
when the district court “relies on clearly erroneous findings of            Our previous opinion in this matter drew upon the analysis in
fact, . . . improperly applies the law, . . . or . . . employs an           the Seventh Circuit’s opinion in Ross v. United States, 910
erroneous legal standard.” Ibid.                                            F.2d 1422 (7th Cir. 1990), in describing the constitutional due
                                                                            process claim raised by the Becks’ complaint. We adopted
   Claims of error in jury instructions require the instructions            Ross’s formulation: a municipality cannot “arbitrarily cu[t]
to be reviewed as a whole, in order to determine whether they               off private sources of rescue without providing a meaningful
adequately informed the jury of the relevant considerations                 alternative.” Beck, 2000 WL 1597942 at *4 (quoting Ross,
and provided a basis in law for aiding the jury in reaching its             910 F.2d at 1431). The concept of “meaningfulness” at issue
decision. O-So Detroit, Inc. v. Home Ins. Co., 973 F.2d 498,                here must be understood with reference to the underlying
502 (6th Cir. 1992); Blackwell v. Sun Elec. Corp., 696 F.2d                 constitutional doctrine of due process, which prohibits only
1176, 1181 (6th Cir. 1983).                                                 “egregious or arbitrary government conduct,” City of
                                                                            Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.
                                   A                                        188, 198 (2003), not conduct that is merely ill-reasoned or ill-
                                                                            advised. Thus, a broad range of possible dive rescue
   Plaintiffs first contend that the district court erred by                techniques might qualify as “meaningful,” even if they were
excluding the testimony of Mr. Linton. They argue that his                  not the most effectively adapted for the task.
evaluation of the county’s dive efforts was relevant to the
question of whether the defendants provided a “meaningful                     In this case, however, Linton offered testimony that several
alternative” to private rescue. They also argue that Linton’s               aspects of the county’s response to the Beck drowning
experience qualified him to testify about the degree of                     suggested the county was not, in fact, engaged in a rescue
difficulty the MSRDT divers would likely have faced in                      operation at all, but only in a body recovery operation. This
recovering Beck, had they dived after him. When reviewing                   would obviously fall short of being a meaningful alternative
proposed expert testimony, the district court must determine                to rescue. There was evidence that the county had
whether the evidence rests upon a reliable foundation and is                specifically decided not to hold itself out as providing water
relevant. Fed. R. Evid. 702; Daubert v. Merrell Dow                         rescue services, because it believed that it could not provide
Pharms., Inc., 509 U.S. 579, 597 (1993). A district court                   a timely response across the length of Manistee County.
abuses its discretion if it bases “its ruling on an erroneous               Indeed, when Beck’s fall occurred, the county divers were
view of the law or a clearly erroneous assessment of the                    unable to enter the water until 58 minutes after Beck’s plunge,
evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,                   even though the accident site was only two or three minutes
405 (1990).                                                                 from the sheriff’s office. Moreover, some trial testimony
                                                                            suggested that when the county divers did recover Beck, they
                                                                            placed him in a body bag and dragged him out by his feet.
                                                                            Other testimony indicated that the city’s rescue vehicle, R5,
nature of the evidence” in deciding whether error was harmless in a given
case).                                                                      had been on the scene but had been sent home by Chief
No. 01-2723                    Beck, et al. v. Haik, et al.   19   20    Beck, et al. v. Haik, et al.                 No. 01-2723

Hornkohl before Beck’s body was recovered. Linton would            dispatch director, in which he complained that the municipal
have testified that these facts were inconsistent with an          authorities never notified the Coast Guard of the Beck
attempt at live rescue. He would also have explained the           drowning. We agree that this letter should not have been
“golden hour” protocol recognized in the field of water            excluded as irrelevant. The letter is relevant for reasons
rescue: one hour of submersion is the outer limit of survival      similar to those that required admission of part of Mr.
for a drowning victim. Furthermore, Linton testified in his        Linton’s testimony, discussed above. Monck stated that the
deposition that water rescue operations are rarely run out of      county had not notified the Coast Guard of Beck’s accident,
sheriff’s departments, as the Manistee County dive team was;       even though the Coast Guard boat was on patrol and could
rather, such operations are more commonly run out of local         have arrived at the scene in about two minutes. If believed by
fire departments, which can respond faster.                        the jury, this evidence would clearly support one of the
                                                                   plaintiffs’ main theories of the case: that the county was not
   Such testimony meets the general relevance requirement of       interested in providing live rescue at all, only body recovery.
Fed. R. Evid. 401 and the expert opinion requirements of Fed.      Thus, the letter is relevant to the “no meaningful alternative”
R. Evid. 702. In light of Linton’s expertise, his testimony        element of the plaintiffs’ case.
could have been helpful to the jury in deciding whether what
occurred was a rescue operation or a recovery operation, and          The defendants argue that even if the letter is relevant, it
thus whether it was a meaningful alternative to private rescue.    still should have been excluded as hearsay. The district court
See Fed. R. Evid. 702 (permitting opinion testimony based on       did originally exclude the letter as hearsay, but later
relevant “scientific, technical, or other specialized              reconsidered this part of its ruling sua sponte and reversed it.
knowledge” if, inter alia, the witness is appropriately
“qualified as an expert by knowledge, skill, experience,              The parties have not included in the record sufficient
training, or education”). As a water rescue expert, Linton also    documents or transcripts of the proceedings to allow us to
could have provided potentially helpful testimony on whether       revisit the district court’s thinking on the hearsay issue, which
Mosack and Cole would have been likely to encounter                appears to involve a number of complex considerations. As
difficulty in recovering Beck if they had entered the water on     best we can gather from this vantage point, the plaintiffs
that night.                                                        attempted to subpoena Chief Monck to testify about the
                                                                   matters addressed in his letter to the county dispatcher. The
  We agree with the district court, however, that Linton was       district court quashed the subpoena. It is unclear whether it
not sufficiently qualified to opine on whether Beck’s life         did so because the Coast Guard had refused to comply with
would have been saved if Mosack and Cole had entered the           the subpoena (perhaps pursuant to its authority as a federal
water and searched for him. That was properly a medical            agency to “prescribe regulations for . . . the conduct of its
judgment, and Linton (unlike plaintiffs’ other proffered expert    employees [and] . . . the custody, use, and preservation of its
witness, Dr. Steinman) lacked the medical training to qualify      records, papers, and property,” under the so-called
him to render such a judgment.                                     “housekeeping statute,” 5 U.S.C. § 301), or for another
                                                                   reason. Monck later offered an affidavit that authenticated his
                               B                                   letter. The district court then revisited its hearsay ruling, and
                                                                   concluded that the Coast Guard’s response rendered Monck
  Plaintiffs’ second issue concerns the district court’s           an “unavailable” witness within the meaning of Fed. R. Evid.
decision to exclude, as irrelevant, Monck’s letter to the county   804, and apparently concluded that Monck’s testimony also
No. 01-2723                          Beck, et al. v. Haik, et al.       21    22   Beck, et al. v. Haik, et al.                No. 01-2723

satisfied an appropriate hearsay exception – perhaps the                      standard of care, training, equipment, etc. As I read the
“catch-all” exception of Fed. R. Evid. 807.4                                  statute the[re] is no duty to provide a rescue team!” The note
                                                                              closed by stating that “the liability would significantly
  In the end, the district court explicitly rested its ruling on              increase” if the county created a rescue team.
lack of relevance, not on hearsay. The parties have not
provided a sufficient appellate record for us to decide whether                 On March 25, 1993, after a drowning accident in the
the hearsay issue provides an alternative basis for affirming                 Manistee River, Page sent a typed letter to Kaminski
the district court’s ruling. We accordingly express no opinion                “reinforc[ing] our risk control opinion that Manistee County
on this question. The district court may choose to revisit the                should not expand its present services in the Sheriff’s
point on remand.                                                              Department in the area of water recovery.” Page referred in
                                                                              this letter to a “position taken and expressed . . . by Sheriff
                                     C                                        Haik” that the county should decline to provide official rescue
                                                                              services, and Page endorsed this position. Echoing his
  The plaintiffs also challenge the district court’s decision to              previous note, Page added: “Any agreement to provide
exclude two letters written to Tom Kaminski, the Manistee                     underwater rescue service would generate considerable
County Administrator, by William Page, a risk consultant                      expenditures in staffing, trainin[g], and equipment while at
with the Michigan Municipal Management Authority (a                           the same time greatly increasing exposure to liability.”
public-entity liability and property insurer). On Februrary 8,
1993, Page wrote a note on the cover page of a fax to                           Plaintiffs proffered these two letters as admissions of an
Kaminski, stating that “[l]egislation indicates sheriff / police              opposing party, admissible under the hearsay exception of
chiefs have duty to establish “recovery” capacity . . . but may               Fed. R. Evid. 801(d)(2)(D). They offered to redact the letters
also call upon other agencies to aid in recovery of a body.”                  to exclude the closing references to liability, in conformity
Page added: “Rescue operations signify an even higher                         with Fed. R. Evid. 411. The district court held the letters
                                                                              inadmissible on the grounds that they were irrelevant and
                                                                              excessively prejudicial. It reasoned that the letters could not
      4                                                                       be redacted to remove the references to liability without
      It is an interesting question whether such a refusal by the Coast
Guard (if that is what happe ned) wo uld, in fact, render a witness           rendering them misleadingly incomplete. On appeal, the
“unavailable” for purposes of Fed. R. Evid. 804 and/or 807, thereby           defendants argue that the district court’s ruling was correct,
making his earlier hearsa y stateme nts potentially admissible. The           and renew their argument, presented below, that the letters
agency’s say-so does not conclude the matter of whether the witness is        were also subject to exclusion as hearsay.
unavailable. Rather, our court has held that the “housekeeping” statute
for military and other federal agenc ies, 5 U.S.C. § 301, does not empower
agencies “to prescribe regulatio ns that direct a party to deliberately
                                                                                We are compelled to conclude that the letters should have
disobey a court order, subpoena, or other judicial mechanism requiring        been admitted. They were relevant. They dealt with whether
the production of information.” In re Bankers Trust Co., 61 F.3d 465,         the county had decided to forego live rescue attempts in water
470 (6th C ir. 199 5); accord Exxon Shipping Co. v. United States Dep't of    accidents. If the jury believed it had done so, this would be
Interior, 34 F.3d 77 4, 777 (9th Cir.1994), although we have also held that   highly relevant, if not decisive, as to the question of whether
an agency employee cannot be held in contempt for relying on such a           the defendants failed to provide a meaningful alternative to
regulation, Appeal of S.E.C., 226 F.2d 501 , 516 (6th C ir. 195 5).
                                                                              private rescue. As to prejudice, the thrust of the letters was
      W e express no opinion on this question, which is not properly before   to advise the county not to adopt water rescue, and to report
us.
No. 01-2723                           Beck, et al. v. Haik, et al.         23     24   Beck, et al. v. Haik, et al.                 No. 01-2723

that Sheriff Haik had taken such a position. The letters could                    605-06 (6th Cir. 1995) (assuming arguendo that an employee
easily have been redacted by removing the sentences referring                     of a professional services company hired by a union fund was
to liability without distortion of their meaning.                                 the fund’s “agent” under Rule 801(d)(2)(D) with respect to
                                                                                  his assertions dealing with his company’s work for the fund).
   Defendants’ argument that the letters were improper
hearsay also requires consideration. Fed. R. Evid. 801(d)(2)                        Defendants argue next that the letters would have been
provides that statements are not hearsay if they are “offered                     merely cumulative. They point out that the County’s former
against a party and [are made] . . . by the party’s agent or                      deputy sheriff, Kowalkowski, admitted under cross-
servant concerning a matter within the scope of the agency or                     examination by plaintiffs’ counsel that, prior to Beck’s
employment, made during the existence of the relationship.”                       drowning, the county had decided not to hold itself out as
The chief issue is the nature of Page’s relationship with the                     offering rescue services. However, the letters would have
county. Defendants state that Page was simply a consultant,                       provided additional perspective on the county’s actions. The
providing risk assessment services as part of the county’s                        thrust of Kowalkowski’s testimony was that the county chose
agreement with the Michigan Municipal Management                                  not to offer rescue services “[i]n name.” The letters went
Authority. Assuming this is so, we hold that Page’s                               further, suggesting that the county did not merely decline to
statements in the letters still count as “admissions” under                       offer rescue services by name, but that it affirmatively
Rule 801(d)(2)(D). The statements dealt directly with the                         decided, on financial grounds, to offer only body recovery
subject matter of the Management Authority’s contract with                        services. Thus, while the defendants are correct that
the county, and were expressed during the course of that                          Kowalkowski’s testimony tended to mitigate the effect of
relationship. Though there is little precedent on the matter,                     erroneously excluding the letters, it did not render the letters
courts confronting similar factual situations have tended to                      merely cumulative.
hold contractors and advisors to fall within the “agency”
relationship contemplated by Rule 801(d)(2)(D).5 Our court                                                       D
reached a similar conclusion in a criminal case, United States
v. Branham, 97 F.3d 835, 851 (6th Cir. 1996), in which we                           Plaintiffs presented testimony at trial from Cheryl Debano-
held that a paid civilian informant was the government’s                          Griffin, the Manistee County dispatch director. At one point,
“agent” under Rule 801(d)(2)(D) with respect to statements                        plaintiffs’ counsel made an offer of proof, and asked Debano-
he made in order to establish a relationship with the                             Griffin questions aimed at developing a foundation for the
defendant. See also United States v. Wiedyk, 71 F.3d 602,                         argument that the county had deliberately destroyed the
                                                                                  dispatcher’s audio tape of the events of June 28, 1995.
                                                                                  Debano-Griffin confirmed that the tape was demagnetized by
    5
                                                                                  the dispatcher’s office, and thus was unavailable. (Plaintiffs
      See EEOC v. Watergate at Landmark Condo., 24 F.3d 635, 640 (4th             did introduce into evidence the printed dispatch log.
Cir. 1994) (holding that statements of condominium residents on advisory          However, this was less complete, and the time stamps on the
committees were admissible under Rule 801(d)(2)(D) in a former
employee’s discrimination action against the condominium association);
                                                                                  printed log were not always contemporaneous with events.)
United States ex rel. Remtech, Inc. v. Nat’l Union Fire Ins. Co. of               She testified that it was the routine practice of the office to
Pittsburgh, Pa., Nos. 99-3 503 8, 99 -352 97, 2 000 W L 11 711 39, *3 n.4         maintain tapes for thirty days, and then, if no one requested
(9th Cir. 2000) (unpublished opinion) (holding a consultant’s statement           preservation of the tape or a copy, to demagnetize and reuse
about his desire to help his client avoid a co ntract to be ad missible against   them. She further testified that the Coast Guard verbally
the client under Rule 801(d)(2)(D )).
No. 01-2723                    Beck, et al. v. Haik, et al.   25    26   Beck, et al. v. Haik, et al.                 No. 01-2723

requested the tape from her office during that 30-day period,       that date. Yet it was not. The fact that Monck’s letter to the
and that she reviewed the tape with Chief Monck and other           county dispatcher was marked with the written annotation,
Coast Guard personnel. In addition, an attorney (not a              “cut tape,” could also be viewed as supporting the plaintiffs’
participant in the present litigation) filed a written Freedom of   arguments.
Information Act requesting the tape from the night of Beck’s
death. This FOIA request was filed one or two days before              Spoliation is the intentional destruction of evidence that is
the expiration of the 30-day period, but it was filed with the      presumed to be unfavorable to the party responsible for the
Manistee County Sheriff’s Department, rather than the               destruction. Ibid. The rules that apply to the spoiling of
dispatcher’s office. Debano-Griffin testified that her office       evidence and the range of appropriate sanctions are defined
did not receive the written FOIA request until shortly after the    by state law; in this case, the law of Michigan. Nationwide
expiration of 30 days, and that by then the tape had been           Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th
demagnetized. Plaintiffs argued that the Coast Guard’s verbal       Cir. 1999). Michigan treats evidence of spoliation as relevant
request, and the sheriff’s failure to convey the written request    to trial proceedings in a number of respects. “A trial court has
to the dispatch office, raised an inference of spoliation of        the authority . . . to sanction a party for failing to preserve
evidence by the County. The district court did not agree. It        evidence that it knows or should know is relevant before
reasoned that the written request was filed only one or two         litigation is commenced.” Bloemendaal v. Town & Country
days before the expiration of the 30-day deadline, and was          Sports Ctr. Inc., 659 N.W.2d 684, 686 (Mich. Ct. App. 2003).
filed with the sheriff’s office rather than the county dispatch     A party may also be entitled to special instructions if he can
office. Thus, it concluded, the logical inference was that an       raise an issue of fact as to whether a party has failed to
innocent bureaucratic error had prevented the request from          preserve relevant evidence. See Brenner v. Kolk, 573 N.W.2d
being received in time to prevent the destruction of the tape.      65 (Mich. Ct. App. 1998); Mich. Std. Jury Instruction 2d
                                                                    6.01. In the posture in which this appeal reaches us, we need
   We review the district court’s decision to exclude evidence      not consider whether any of these measures could be
of spoliation for abuse of discretion. United States v.             appropriate in this case. It is enough to say that there was
Copeland, 321 F.3d 582, 597 (6th Cir. 2003). The district           sufficient evidence to entitle the plaintiffs to present their
court’s reasoning here would have been within its discretion        spoliation evidence to the jury.
if the failure to respond to the written request were the only
evidence of a possible spoliation. However, it was not.                                            E
Debano-Griffin also testified that the dispatch office received
a direct verbal request from the Coast Guard for a copy of the        Plaintiffs argue next that the court committed reversible
tape. While the plaintiffs, during their brief offer of proof,      error when it allowed the defendants to elicit testimony that
did not establish the date of the receipt of this verbal request,   Eugene Beck had a criminal record and that his parents had
it must have preceded the written FOIA request, because it          been accused of child molestation. They argue that this
occurred in time for the tape to be produced intact to the          questioning was irrelevant and highly prejudicial. Defendants
Coast Guard. Debano-Griffin also testified that receipt of a        argue that it was proper cross-examination, because plaintiffs
verbal request was enough to justify preserving a tape. That        had opened the door to it.
being so, it would appear that the tape should have been
preserved after the regular 30-day deadline expired, regardless       Sharon Beck, Eugene’s mother, testified on direct
of whether the written FOIA request had been received by            examination that she had sought counseling for her grief and
No. 01-2723                   Beck, et al. v. Haik, et al.   27   28   Beck, et al. v. Haik, et al.                No. 01-2723

anger after the death of her son. The plaintiffs had previously   detector test. It was unclear whether any charges were ever
secured a ruling from the district court that forbade             filed.
defendants from introducing any evidence of Eugene’s
criminal record, unless Mrs. Beck’s testimony opened the            This questioning was both irrelevant and unduly
door to it as rebuttal. In cross-examining Mrs. Beck about her    prejudicial, and should have been disallowed. It certainly did
relationship with her son, defense counsel asked Mrs. Beck if     not satisfy the requirements of Fed. R. Evid. 608, which
Eugene was “difficult” and “got into trouble.” She replied        permits the use of past crimes for impeachment, but only
that if so, “he didn’t go out and cause it” and added that “he    where, among other requirements, the evidence indicates “that
wasn’t convicted on none of them.” Defense counsel then           a witness . . . has been convicted of a crime.” We have
asked Mrs. Beck directly whether her son had gone to prison,      cautioned that introducing unrelated evidence of sexual
and she admitted he had.                Plaintiffs’ counsel’s     crimes or deviancy risks “cater[ing] to the passions of the
contemporaneous objection was overruled.                          jury” and “prejudic[ing] [a party’s] chance for a fair trial.”
                                                                  United States v. McFadyen-Snider, 552 F.2d 1178, 1182 (6th
  We do not believe this was error. The district court acted      Cir. 1977). Here, plaintiffs’ choice to present Mrs. Beck’s
within its discretion by implicitly ruling that Mrs. Beck’s       testimony about her love of her son and her need for grief
remark that Eugene “wasn’t convicted” opened the door to          counseling could fairly be seen as opening the door to
counsel’s question. “When a party opens up a subject . . . the    questions about the stormy aspects of her relationship with
party cannot complain on appeal if the opposing party             her family. But counsel’s question about apparently
introduces evidence on the same subject.” United States v.        uncharged, and certainly unproven, accusations of child
Bender, 265 F.3d 464, 471 (6th Cir. 2001) (quoting United         molestation by others against Mrs. Beck simply was not
States v. Ramos, 861 F.2d 461, 468-69 (6th Cir.1988))             relevant to that subject. The record does not even indicate
(holding that defense counsel was permitted to cross-examine      that defense counsel had any reason to believe the charges
defendant about her prior drug conviction, notwithstanding        were meritorious. Therefore, Mrs. Beck’s request for
district court’s earlier order excluding such testimony, when     clarification of counsel’s previous question about “upsetting
defendant testified on direct examination that she had never      events” requiring counseling could not have “opened the
sold drugs).                                                      door” to any follow-up question about the accusations of
                                                                  molestation.
   However, we cannot say the same of the other line of
questioning challenged by plaintiffs. In the course of              The district court’s denial of a motion for mistrial is
questioning Mrs. Beck about her need for counseling, defense      reviewed for an abuse of discretion. United States v. Green,
counsel asked whether she had “other upsetting events” in her     305 F.3d 422, 428 (6th Cir. 2002). In appeals of civil cases,
life besides Eugene’s death. Mrs. Beck replied: “Like what?”      grants of mistrial on the basis of a single episode of improper
Defense counsel then asked: “Well, on several occasions you       questioning or argument have been rare. See, e.g., Vineyard
and your family were accused of child molestation?”               v. Murray County, Ga., 990 F.2d 1207 (11th Cir. 1993)
Plaintiffs’ counsel objected strenuously, but was overruled.      (affirming the district court’s decision to deny motion for
Plaintiffs’ counsel then moved for a mistrial, which was          mistrial in excessive force case under § 1983 when plaintiff’s
denied. It emerged that the accusation had originated with the    counsel urged jury in closing argument to “send a message”
adoptive parents of Mrs. Beck’s granddaughters. An                in light of recent Rodney King riots; district court gave
investigation was dropped after Mrs. Beck passed a lie            curative instruction). One court has held that, where an
No. 01-2723                    Beck, et al. v. Haik, et al.   29    30    Beck, et al. v. Haik, et al.                 No. 01-2723

appellant challenges a denial of mistrial on the basis of           Ross, 910 F.2d at 1431 (holding that plaintiff stated a
evidence that the trial court held admissible, the appellant        constitutional claim when he alleged that the county “had a
faces an “unusually heavy appellate burden” of demonstrating        policy of arbitrarily cutting off private sources of rescue
that the denial of mistrial was an abuse of discretion, on top      without providing a meaningful alternative”). It is not
of demonstrating that the admission of the evidence was an          reversible error when a court refuses to use the exact language
abuse of discretion. Tamko Roofing Prod., Inc. v. Ideal             counsel requests in a jury instruction. Blackwell, 696 F.2d at
Roofing Co., Ltd., 282 F.3d 23, 39 (1st Cir. 2002).                 1183; Thompson v. Underwood, 407 F.2d 994, 997 (6th Cir.
                                                                    1969). There is, in any event, great semantic overlap among
   For reasons we discuss in Part IV, infra at pp. 30-32, we        the terms “prevent,” “hinder,” and “deter.” Compare The
need not consider whether the improper questioning of Mrs.          American Heritage Dictionary of the English Language 1391
Beck was sufficiently prejudicial by itself to merit a mistrial.    (4th ed. 2000) (noting that “prevent” and related verbs “mean
It is enough that the error was significant and, in conjunction     to stop or hinder . . ., especially by advance planning or
with the other evidentiary errors we have identified, deprived      action”) with id. at 494 (defining “deter” as “[t]o prevent or
the Becks of a fair trial.                                          discourage from acting”) and id. at 830 (noting that “hinder”
                                                                    means “to hold back and often implies stopping or
                               F                                    prevention”). The instructions were proper.
   The plaintiffs offer one other argument meriting discussion.       The plaintiffs have offered other assignments of error,
It concerns the instructions given as to the first element of       which we have considered. Because we find them to be
their case. The district court instructed the jury that the         clearly without merit, we see no need to discuss these
plaintiffs had to show that the defendants imposed a policy         additional arguments.
“preventing” private rescue efforts. The plaintiffs argue that
this was an inappropriate gloss on the language of this court’s                                    IV
previous opinion, thereby improperly increasing the
plaintiffs’ burden. The plaintiffs urge that the instruction           The last issue is whether the errors in the trial require
should have stated that defendants’ policies must “hinder” or       reversal. Examining the proceedings in their entirety, we
“deter” private rescue. They note accurately that this court        believe that the substantive issues were significantly
used these words in some passages of its earlier opinion.           contested. The Becks argued forcefully that the County and
                                                                    City arbitrarily prevented private rescue as a matter of policy.
   We conclude that the district court’s instructions adequately    They presented testimony from MSRDT members Hornkohl
informed the jury about the law and the relevant                    and Krause that they had been threatened with arrest were
considerations. As defendants point out, the district court’s       they to enter the water at an accident scene. Several other
instructions were also grounded in our prior opinion, which         local witnesses testified that they had seen or heard of a
used the word “prevent” to describe the elements of the             memo from the sheriff declaring water accidents to be crime
plaintiff’s claim: “Ross holds that official action preventing      scenes, and some testified that they had heard of an arrest
rescue attempts by a volunteer civilian diver can be arbitrary      policy connected with that memo. The individual defendants,
in a constitutional sense if a state-sponsored alternative is not   in turn, squarely denied adopting such a policy or threatening
available when it counts – and we are constrained to agree.”        the MSRDT members. The defendants presented testimony
Beck, 2000 WL 1597942 at *4 (emphasis added); see also              from the local fire chiefs that tended to support their position.
No. 01-2723                    Beck, et al. v. Haik, et al.   31   32   Beck, et al. v. Haik, et al.                 No. 01-2723

  Likewise, the plaintiffs offered pertinent evidence that,        molestation. In our view, errors (2) and (4) involved
despite some of the trappings of rescue, the county really         affirmative evidence with a significant potential to persuade
offered only body recovery services, and thus offered no           the jury, and error (5) raised a significant possibility of
meaningful alternative to private rescue. Cole, a trained          improper prejudice.
diver, and Dr. Steinman, plaintiffs’ expert witness, testified
that several aspects of the county dive team’s response, such         Should these effects be weighed together? Our court has
as the use of the body bag, and failure to enter the water for     adopted the doctrine of “cumulative error” in criminal cases:
58 minutes, suggested that they were not serious about rescue.     we consider the “combined effect” of multiple trial errors to
But this aspect of the plaintiffs’ case would have been            determine whether they are unfairly prejudicial. United States
bolstered significantly if the testimony of Linton, the dive       v. Parker, 997 F.2d 219, 222 (6th Cir. 1993). We have not
expert, and the letter from Coast Guard officer Monck had          yet had occasion to decide whether the same rule applies in
been admitted.                                                     civil cases. However, most of our sister circuits follow the
                                                                   cumulative-error doctrine in both civil and criminal cases.
   Causation was perhaps the weakest element of plaintiffs’        See, e.g., Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d
case. However, they presented Dr. Steinman’s expert                183, 188 (7th Cir. 1993); Malek v. Fed. Ins. Co., 994 F.2d 49,
testimony that Beck probably could have survived if rescued        55 (2d Cir. 1993); Hendler v. United States, 952 F.2d 1364,
within 20 to 30 minutes of submerging. If the jury believed        1383 (Fed. Cir. 1991); United States v. Rivera, 900 F.2d
the testimony of Mosack, it easily could have concluded that       1462, 1469 (10th Cir. 1990); but see SEC v. Infinity Group
the MSRDT divers could have recovered Beck during this             Co., 212 F.3d 180, 196 (3d Cir. 2000).
time. Defendants’ medical expert, Dr. Dueker, testified that
it was unlikely that Beck would have survived even 10 to 15           We agree with the majority of courts that the cumulative-
minutes’ submersion, thus casting doubt on plaintiffs’ claims      error doctrine should extend to civil cases. The “substantial
of causation. He also offered plausible criticisms of the          right” standard that governs harmless error analysis is defined
research that underpinned Dr. Steinman’s opinion. We think         in terms of whether errors may have influenced the jury’s
it is relevant, though, that during its deliberations, the jury    verdict. Schrand, 851 F.2d at 157; see generally Part II,
asked a question about the meaning of the term “arbitrarily”       supra at pp. 13-16. Since a jury reaches its verdict in light of
in the jury instructions. This was not part of the definition of   the evidence as a whole, it makes no sense to try to analyze
the causation element of plaintiffs’ case. The question            errors in artificial isolation, when deciding whether they were
suggests that the jury may have thought plaintiffs had             harmless.
presented enough evidence of causation to justify careful
attention to whether they had proved the other elements of            Applying this standard, we conclude that we lack a “fair
their case.                                                        assurance” that the verdict below was not substantially
                                                                   swayed by error. Schrand, ibid.; Kotteakos, 328 U.S. at 765.
  We have identified five errors that inured to the detriment      The trial was contested enough that fairness requires a new
of the Becks: (1) the exclusion of Linton’s expert testimony;      trial in which the Becks may present the range of relevant
(2) the exclusion of the Coast Guard letter; (3) the exclusion     evidence denied to them below.
of the letters from the county risk consultant, Mr. Page;
(4) the exclusion of the spoliation evidence; and (5) the
improper questioning of Mrs. Beck on accusations of child
No. 01-2723                Beck, et al. v. Haik, et al.   33

                           V
  For the foregoing reasons, the judgment is REVERSED and
the case is REMANDED for a new trial.
