UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BARBARA LISA CORBETT,
Plaintiff-Appellant,

v.

FLEETWOOD HOMES OF NORTH
CAROLINA, INCORPORATED; FLEETWOOD
ENTERPRISES, INCORPORATED,
                                                               No. 99-1726
Defendants-Appellees,

and

HAMMER, INCORPORATED, d/b/a
National Housing Sales,
Incorporated,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Patrick Michael Duffy, District Judge.
(CA-97-3448-4-23)

Argued: April 5, 2000

Decided: May 3, 2000

Before MOTZ and KING, Circuit Judges, and
John C. GODBOLD, Senior Circuit Judge of the
United States Court of Appeals for the Eleventh Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Lauri J. Soles, GRIER LAW FIRM, L.L.C., Columbia,
South Carolina, for Appellant. Richard Kennon Hines, V, NELSON,
MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South
Carolina, for Appellees. ON BRIEF: Deborah Harrison Sheffield, F.
Barron Grier, III, GRIER LAW FIRM, L.L.C., Columbia, South Car-
olina, for Appellant. Susan M. Glenn, NELSON, MULLINS, RILEY
& SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The question presented in this appeal is whether the district court
abused its discretion in excluding a list of lawsuits offered to prove
notice of a claim. Finding no abuse of discretion, we affirm.

I.

Beginning in the early 1950's, manufacturers have used particle
board made from an organic compound that emits formaldehyde gas
to construct mobile homes. Formaldehyde gas can cause health prob-
lems. After the Department of Housing and Urban Development
(HUD) increased energy efficiency standards by limiting ventilation
in mobile homes in the 1970's, some inhabitants began to experience
health effects; in response HUD promulgated standards in 1984 that
required testing of the particle board to ensure it met specified limits
on formaldehyde gas emissions.

In January 1997, Barbara Lisa Corbett purchased a mobile home
that was manufactured by Fleetwood Homes of North Carolina, Inc.,

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a subsidiary of Fleetwood Enterprises, Inc. (collectively, Fleetwood).
Corbett alleges that she moved out of her mobile home in June 1997
because of health problems caused by formaldehyde gas. On Novem-
ber 6, 1997, she filed this action against Fleetwood Homes and Fleet-
wood Enterprises, as well as against the seller of the home, Hammer,
Inc. She settled with Hammer, and Hammer is not a party to this
appeal.

Corbett maintains that the HUD standards were insufficient, that
Fleetwood knew that the HUD standards were insufficient, and that
Fleetwood did not conduct the additional testing necessary to ensure
the higher air quality standards that it knew were required to make the
mobile homes safe. A critical element of this claim is that Fleetwood
knew that there were problems with its homes. To demonstrate notice
"that relying on just the particle board manufacturer's certification
that they met [HUD's] standards [wa]s not enough," Corbett sought
to introduce a list of 118 lawsuits filed against Fleetwood Enterprises.
The court excluded the list, but allowed Corbett to argue--and Fleet-
wood stipulated to the same--that Fleetwood had"known that there
were people who claim to have had these problems since 1984, and
they continue to have them." The court also permitted Corbett to read
into the record Fleetwood's express admission (in response to an
interrogatory request) that Fleetwood Homes had received seven com-
plaints and three lawsuits, and instructed the jury that those com-
plaints and lawsuits were relevant "for notice."

At trial several additional references were made to the lawsuits
against Fleetwood. First, Corbett's counsel asserted in his opening
statement that "there were hundreds, hundreds of prior complaints."
The plant manager of Fleetwood Homes, Scott Harkin, testified that
there were seven claims and three lawsuits against Fleetwood Homes;
he did not mention the 118 lawsuits against Fleetwood Enterprises. In
closing argument defense counsel asserted that "all [Harkin] could
find complaints of were seven complaints and three lawsuits. That's
not an epidemic."

The jury returned a verdict for Fleetwood and the district court
denied Corbett's motion for a new trial. She now appeals, arguing that
the district court erred in excluding the list of prior lawsuits both
because they should have been initially admitted as relevant and not

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unfairly prejudicial and because they should have been admitted after
the defense "opened the door."

II.

The district court found that admission of the list of 118 lawsuits
would be "highly prejudicial," and that the lawsuits were only ques-
tionably comparable to Corbett's claim. The court therefore excluded
the list and instead accepted a stipulation that the defendants had
notice of complaints. We review asserted evidentiary errors for abuse
of discretion. Martin v. Deiriggi, 985 F.2d 129, 137 (4th Cir. 1992).

A district court may exclude even relevant evidence if unfair preju-
dice substantially outweighs its probative value. Fed. R. Evid. 403.
Interpreting this rule, we articulated a four-prong test for admissibility
in Westfield Ins. Co. v. Harris, 134 F.3d 608, 614 (4th Cir. 1998): "(1)
[t]he evidence must be relevant to an issue, such as an element of an
offense, and must not be offered to establish the general character of
the defendant. In this regard, the more similar the prior act is (in terms
of physical similarity or mental state) to the act being proved, the
more relevant it becomes. (2) The act must be necessary in the sense
that it is probative of an essential claim or element of the offense. (3)
The evidence must be reliable. And, (4) the evidence's probative
value must not be substantially outweighed by confusion or unfair
prejudice in the sense that it tends to subordinate reason to emotion
in the fact-finding process." Id. (internal quotations omitted). Apply-
ing this test in an insurance company's suit against an allegedly fraud-
ulent claimant for fire damage, we found that a district court erred by
excluding evidence of the defendant's prior claims and the insurance
company's prior payment when all five prior claims were for undis-
putedly similar fires. Id. at 615-16. Corbett asserts that Westfield
requires us to find an abuse of discretion here.

Fleetwood disputes Corbett's contentions on two grounds. First,
Fleetwood asserts that Corbett's claim that she only wants to admit
the prior lawsuits as evidence of notice is a ruse, and that she in fact
wants to admit them as evidence that the HUD standards were insuffi-
cient; under these circumstances, the prior lawsuits must be "substan-
tially similar" to Corbett's case to be admissible. See Renfro Hosiery
Mills Co. v. Nat'l Cash Register Co., 552 F.2d 1061, 1068 (4th Cir.

                     4
1977). Alternatively, Fleetwood argues that if in fact Corbett only
seeks to introduce the prior lawsuits as evidence of notice, then the
lawsuits are not admissible because they are not"sufficiently similar"
to Corbett's case. Benedi v. McNeil-P.P.C., Inc. , 66 F.3d 1378 (4th
Cir. 1995). We first address the alternative argument, because if we
find that the district court did not abuse its discretion in finding that
the lawsuits were not "sufficiently similar" to Corbett's case, then
they cannot be "substantially similar."

The record contains evidence that some of the lawsuits were irrele-
vant to the notice issue and contains no evidence as to whether the
remaining lawsuits were relevant. Approximately half of the 118 law-
suits were filed prior to 1984 and are thus dissimilar and irrelevant to
the claim in the instant case that Fleetwood should have known that
the 1984 HUD standards were insufficient. At no time did Corbett
seek to introduce a list of only the post-1984 lawsuits. Moreover, Cor-
bett has provided no evidence that the remaining lawsuits were based
on homes like her own, which were built after the promulgation of the
HUD standards in 1984. Nor has she provided evidence that any of
the lawsuits were based on the same symptoms as she suffered. On
this evidentiary record, the district court did not abuse its discretion
in finding that Corbett did not establish the "sufficient similarity"
required to introduce the 118 lawsuits as relevant evidence of notice
that the HUD regulations were inadequate.1

Corbett relies on two of our cases finding no abuse of discretion
in admitting evidence of prior complaints on the grounds that the
_________________________________________________________________
1 At oral argument, Corbett repeatedly noted that Fleetwood provided
the list of 118 lawsuits in response to a discovery request for "similar
lawsuits." Corbett maintains that therefore the district court abused its
discretion in finding that the list did not meet the legal standard of "suffi-
ciently similar." Fleetwood's own internal determination that the lawsuits
may be "similar" is irrelevant, however, to our determination of whether
they were "sufficiently similar" to be relevant to notice; indeed, Fleet-
wood asserts, and Corbett does not dispute, that during discovery Cor-
bett's counsel conceded that "[t]he fact that[the list] is produced [in
response to a request for similar lawsuits] does not ma[k]e it admissible
and that is another battle to be fought at another time." Brief of Appellee
at 7.

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complaints were relevant to notice. See Benedi , 66 F.3d at 1385 (dis-
trict court did not abuse discretion in admitting"evidence case
reports" of drug reactions for notice); Ellis v. International Playtex,
Inc., 745 F.2d 292, 305 (4th Cir. 1984) (district court did not abuse
discretion in admitting consumer complaints for notice). As we
explained in Benedi, however, even when complaints are relevant to
notice, "district courts have the discretion either to admit the prior
reports [complaints] or to exclude them under Rule 403 and instruct
the jury that the defendant received notice through prior reports."
Benedi, 66 F.3d at 1385 (emphasis added); see also Gardner v. S. Ry.
Sys., 675 F.2d 949, 952 (7th Cir. 1982). The court here chose the lat-
ter option, allowing Corbett to read to the jury Fleetwood's admission
that it had received notice of seven complaints and three lawsuits, and
instructing the jury that the complaints and lawsuits were relevant
"for notice." It acted within its discretion in making that choice.

III.

Corbett also argues that the district court abused its discretion in
excluding the list of lawsuits because the defense"opened the door"
and therefore the list should have been admitted in order to "cur[e]"
misrepresentations by the defense. See 1 John Henry Wigmore, Evi-
dence § 15 (4th ed. 1983).

A.

As an initial matter, we must determine if Corbett preserved the
issue for appellate review.

Corbett asserts that Fleetwood "opened the door" three times to the
evidence of prior lawsuits. First, she contends that in his opening
statement, defense counsel mischaracterized the symptoms of formal-
dehyde as "odor in the home, and eyes watering and tearing." Next,
she claims that Harkin, the Fleetwood Homes plant manager, "opened
the door" with his testimony. Finally, Corbett maintains that defense
counsel "opened the door" with his closing arguments that "we don't
have an epidemic of complaints," and that "[t]here are no complaints."

Though Corbett's counsel properly objected to the defense's open-
ing statement, the statement and objection in opening argument were

                    6
related to the symptoms of formaldehyde, not prior complaints or
notice. Corbett therefore did not preserve the issue of whether the
lawsuits were improperly excluded as evidence of notice of com-
plaints with that objection. Corbett also did not preserve the issue of
whether the defense "opened the door" with its counsel's arguably
deceptive comments in closing argument because her counsel did not
lodge any objection at that time.

However, Corbett's counsel did properly object to Harkin's testi-
mony and seek to introduce the printout of the 118 prior lawsuits after
Harkin stated that "if I felt or if Fleetwood felt that we had a problem
with formaldehyde we would definitely test." In response to Corbett's
argument that "he has opened the door," the district court responded
that "[y]ou've got all you need on that." Therefore, Corbett has pre-
served the issue of whether Harkin's testimony "opened the door."

B.

The decision as to whether to admit otherwise inadmissible evi-
dence after the other party has "opened the door" lies firmly within
the "discretionary authority" of the trial judge. See Hinkle v. Hamp-
ton, 388 F.2d 141, 145 (10th Cir. 1968) (affirming trial judge's deci-
sion to admit otherwise inadmissible evidence "to allow the defendant
to meet [the plaintiff's `minimiz[ing]' prior injuries] on an equally
broad front by allowing the development of the true facts").

In this case, the district court determined that permitting Corbett to
argue the point, reading to the jury Fleetwood's admission that Fleet-
wood Homes had received seven complaints and three lawsuits, and
instructing the jury that those complaints and lawsuits were relevant
to notice was sufficient to demonstrate notice. We cannot conclude
that this ruling constituted an abuse of discretion. We also note that
Harkin's statement was not necesarily inconsistent with Fleetwood's
concession that it had notice of complaints--the filing of a lawsuit
does not invariably indicate that a problem exists with the product at
issue, and Harkin and Fleetwood may have continued to "feel" that
the suits were frivolous. Accordingly, while we might have reached

                    7
a different conclusion, we believe the district court acted within its
discretion in excluding the list of lawsuits.2

AFFIRMED
_________________________________________________________________
2 We are uncertain whether Corbett also asserts error in the district
court's denial of a new trial on the grounds that the court had erred in
its exclusion of the lawsuits. If so, we reject that argument because the
district court did not abuse its discretion in its evidentiary ruling. See
Bristol Steel Iron Works v. Bethlehem Steel Corp. , 41 F.3d 182, 186 (4th
Cir. 1994); Fed. R. Civ. P. 61.

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