                                                                      [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                                                                               FILED
                          ------------------------------------------- U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                       No. 06-12531                          April 5, 2007
                                 Non-Argument Calendar                   THOMAS K. KAHN
                         --------------------------------------------         CLERK

                       D.C. Docket No. 03-00195-CV-AAA-2

BARBARA POWELL,
as legal guardian of Jeffrey A. Powell,

                                                          Plaintiff-Appellant,

                                           versus

W&W HAULING, INC.,
A Georgia Corporation,
RICHARD D. LITTLE,
JOHNNY WHELLIS,
d.b.a.W&W Hauling,

                                                          Defendants-Appellees.

               ----------------------------------------------------------------
                    Appeal from the United States District Court
                         for the Southern District of Georgia
               ----------------------------------------------------------------

                                     (April 5, 2007)

Before EDMONDSON, Chief Judge, ANDERSON and BARKETT, Circuit
Judges.
PER CURIAM:

      Barbara A. Powell (“Plaintiff”) appeals the district court’s order denying her

motion for new trial after a jury verdict in favor of W & W Hauling, Inc., Johnny

Wheelis, and Richard D. Little (“Defendants”). No reversible error has been

shown; we affirm.

      This case arises from an automobile accident between a vehicle driven by

Plaintiff’s son, Jeffrey A. Powell (“Mr. Powell”), and a tractor trailer driven by

Richard D. Little (“Little”), a truck driver employed by W & W Hauling, Inc. The

accident resulted in serious permanent injury to Mr. Powell. Plaintiff alleged that

Little operated the tractor trailer in a negligent and reckless manner in excess of

the speed limit and that Defendants were negligent in maintaining the tractor

trailer. At trial, Defendants presented evidence that Mr. Powell was operating his

vehicle while under the influence of alcohol and drifted into oncoming lanes,

causing the accident. The jury returned a verdict in favor of Defendants, and the

district court entered judgment upon the jury’s verdict.

      Plaintiff then filed a motion for new trial, claiming (1) defense counsel’s use

of peremptory strikes during jury selection was a violation of Batson v. Kentucky,

106 S. Ct. 1712 (1986); (2) defense counsel’s mention of Mr. Powell’s bankruptcy

and a restraining order against him was unfairly prejudicial; and (3) Defendants’

                                          2
accident reconstruction expert gave an improper toxicology opinion at trial that he

was not qualified to give. The district court denied Plaintiff’s motion, and this

appeal ensued.

       We review a district court’s denial of a motion for new trial for abuse of

discretion. Bianchi v. Roadway Exp., Inc., 441 F.3d 1278, 1282 (2006). A district

court’s resolution of a Batson challenge is reviewed for clear error. Cent. Ala.

Fair Hous. Ctr. v. Lowder Realty, 236 F.3d 629, 635 (11th Cir. 2000). Also, we

review a district court’s evidentiary rulings for abuse of discretion. Tran v. Toyota

Motor Corp., 420 F.3d 1310, 1315 (11th Cir. 2005).

       First, Plaintiff argues that defense counsel’s use of peremptory challenges to

strike three potential black jurors was a violation of Batson.1 Under the three-step

Batson analysis, (1) the objecting party must make a prima facie showing that the

exercise of a peremptory challenge discriminates on the basis of race; (2) the

challenging party then must articulate a race-neutral reason for striking the juror in

question; and (3) the court then must determine whether the objecting party has

met its burden of proving the existence of purposeful discrimination. United

States v. Novation, 271 F.3d 968, 1002 (11th Cir. 2000).



  1
   The Supreme Court has extended Batson to apply in civil cases. Edmonson v. Leesvill Concrete
Co., 111 S. Ct. 2077 (1991).

                                              3
       In this case, the final venire consisted of fourteen potential jurors, six of

which were black.2 During voir dire, the magistrate judge presiding over jury

selection asked the panel whether any of them would excuse the behavior of a

party shown to have consumed alcohol in excess of the legal limit. One juror, Ms.

Fisher, asked what the legal limit was. The court responded that such information

may or may not be offered at trial. Defense counsel then asked for a show of

hands for which jurors would not excuse such behavior. All of the panel

members, except Ms. Fisher, raised their hands. Plaintiff’s counsel then asked

whether the jurors could put aside the fact that someone had alcohol in his or her

blood if the evidence showed alcohol was not a factor in the accident. Defense

counsel claims Ms. Fisher nodded her head in agreement to this question, saying

“yes, yes, I understand.” According to defense counsel, another juror, Mr. Davis,

looked to Ms. Fisher before responding affirmatively to the question from

Plaintiff’s counsel.

       A third juror, Ms. Jackson, was a replacement juror who answered a

different question about alcohol and causation than that posed to the other panel

members. When asked whether that someone had consumed alcohol before the



  2
    Plaintiff and her son who was injured in the accident are black. Defendants Wheelis and Little
are white men.

                                                4
accident would influence Ms. Jackson’s decision in any way, she responded that it

would not. Defense counsel then exercised three peremptory challenges to strike

Ms. Fisher, Mr. Davis, and Ms. Jackson, all of whom were black.

        For Ms. Fisher and Mr. Davis, the district court determined Plaintiff had not

made out a prima facie case of discrimination for these two strikes.3 We agree.4

The record does not indicate that defense counsel either said or did anything that

would create “a reasonable inference of an improper motive or purpose” for these

first two strikes. Johnson v. California, 125 S.Ct. 2410, 2415 n.3 (2005). “[A]

showing that a party used its authorized peremptory strikes against jurors of one

race does not, standing alone, establish a prima facie case of discrimination.”

Cent. Ala., 236 F.3d at 637.5 Here, Plaintiff alleges no more than “the bare fact of

the removal of certain venire persons and the absence of an obvious reason for the




   3
     The magistrate judge failed to address the first step in the Batson analysis. Nonetheless, we
afford “great deference to the district court’s finding as to the existence of a prima facie case.” Cent.
Ala., 236 F.3d at 635 (quoting United States v. Stewart, 65 F.3d 918, 923 (11th Cir. 1995)).
   4
    Unless we conclude that a prima facie showing was made, we will not reverse a trial court’s
refusal to disallow challenged strikes. Cent. Ala., 236 F.3d at 636. No party is entitled to an
explanation for a peremptory strike unless and until a prima facie case is made. Id.
    5
     We have said that “the number of jurors of one race struck by the challenged party may be
sufficient by itself to establish a prima facie case where a party strikes all or nearly all of the
members of one race on a venire.” Cent. Ala., 236 F.3d at 637. However, this case presents no such
facts.

                                                   5
removal,” which is insufficient to make out a prima facie case of discrimination.

Id. (quotation marks and citation omitted).

      For the third peremptory strike of Ms. Jackson, Defendants concede that

Plaintiff did make out a prima facie case of discrimination. In step two of the

Batson analysis, defense counsel offered race-neutral reasons for the strike, which

included Ms. Jackson’s response that a person’s alcohol consumption before the

accident would not affect Ms. Jackson’s decision in any way. In step three, the

district court determined that Ms. Jackson’s response was a credible basis for

removing her from the jury because her answer suggested that she might not

consider Defendants’ claim that Mr. Powell’s intoxication -- not Defendants’

negligence -- caused the accident. We cannot say that this factual determination

by the district court was clearly erroneous. We conclude, therefore, that

Defendants’ use of peremptory strikes against these three black jurors was no

equal protection violation under Batson.

      Next, Plaintiff argues that a new trial is warranted because defense counsel

unfairly prejudiced Plaintiff by mentioning certain character evidence. During

cross-examination of Plaintiff, defense counsel asked about Mr. Powell’s

bankruptcy in violation of a previous in limine order. After Plaintiff’s counsel

objected, the district court instructed the jury that this “questioning was not

                                           6
appropriate at this time.” Defense counsel then asked Plaintiff about a restraining

order obtained against Mr. Powell by his ex-wife. Again, counsel for Plaintiff

objected, and the court sustained the objection.

       We cannot say that the district court’s handling of these evidentiary

questions was an abuse of discretion or that these questions resulted in unfair

prejudice that was “inconsistent with substantial justice.” Fed. R. Civ. P. 61. We

conclude that brief mention of these collateral issues -- which the district court

appropriately excluded and were never mentioned again at trial -- did not have a

substantial likelihood of affecting the jury’s verdict.6

       Plaintiff claims that the trial court committed reversible error by allowing

Defendants’ accident reconstruction expert, James Burke (“Burke”), to offer a

toxicology opinion that he was not qualified to give. After Burke expressed his

opinion that the likely cause of the accident was that Powell fell asleep, defense

counsel asked Burke the basis of his opinion. Burke cited (1) the lack of any

evasive action; (2) that the accident occurred late at night; and (3) his belief that

the accident involved “an alcohol-impaired, intoxicated driver.” Plaintiff’s




   6
    Plaintiff’s assertion in her brief that these questions “falsely painted Mr. Powell as a violent
individual who did not accept responsibility for his bills” is speculative at best.

                                                 7
counsel objected, and the district court responded that Burke could “testify that he

is making that assumption.”

      Under Fed. R. Evid. 705, “[t]he facts or data in the particular case upon

which an expert bases an opinion or inference may be those perceived by or made

known to the expert at or before the hearing.” Because Defendants already had

introduced evidence of Powell’s intoxication at trial, Burke could use that

evidence as part of the basis of his own expert opinion. The district court,

therefore, did not abuse its discretion in allowing this testimony.

      AFFIRMED.




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