     Case: 18-60896   Document: 00515545111     Page: 1   Date Filed: 08/28/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                 No. 18-60896                     August 28, 2020
                                                                   Lyle W. Cayce
BRADLEY STUBBLEFIELD; KRISTAN STUBBLEFIELD,                             Clerk


             Plaintiffs—Appellants
v.

SUZUKI MOTOR CORPORATION, a foreign corporation; NISSIN KOGYO
COMPANY, LTD, a limited liability company,

             Defendants—Appellees


consolidated with
______________

No. 19-60812
______________


BRADLEY STUBBLEFIELD; KRISTAN STUBBLEFIELD,

              Plaintiffs—Appellants
v.

SUZUKI MOTOR CORPORATION, a foreign corporation,

               Defendant—Appellee


                 Appeals from the United States District Court
                    for the Southern District of Mississippi
                             USDC No. 3:15-CV-18
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                                       No. 18-60896
                                     c/w No. 19-60812
Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Having suffered an adverse jury verdict in this products liability
personal     injury    lawsuit,    Plaintiffs—Appellants           Bradley    and    Kristan
Stubblefield (hereinafter, “the Stubblefields”) appeal a number of rulings
regarding evidence admissibility, juror selection, and personal jurisdiction.
The Stubblefields also appeal the district court’s post-judgment award of
$38,543.64 in costs to Defendant-Appellee Suzuki Motor Corporation
(“Suzuki”). Finding no reversible error, we AFFIRM.
                                              I.
       This products liability action arises from a motorcycle accident that
occurred on January 12, 2012, in Canton, Mississippi. Specifically, Plaintiff—
Appellant Bradley Stubblefield (“Brad”) alleges that, while riding his 2006
Suzuki GSX R1000 motorcycle to work, as he typically did, the bike’s front
braking system suddenly and unexpectedly failed, causing him to be unable to
stop. After crossing over a 132-foot concrete gore 1 and another lane of traffic,
the motorcycle plunged down a grassy embankment, crashing into the ravine
below. The bike fell on top of Brad, severing his spinal cord. Brad’s injuries
have rendered him permanently paralyzed from the chest down.
       In January 2015, contending the motorcycle’s front brake master
cylinder (hereinafter referred to as “FBMC”) was defective and caused Brad’s
accident, the Stubblefields filed this suit against Suzuki Motor of America, Inc.,
and Suzuki Motor Corporation, as the manufacturer of the motorcycle, and


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1A “gore” is defined as “a small usually triangular piece of land.” See “gore.” Merriam-
Webster.com. 2020. https://www.merriam-webster.com/dictionary/gore. (2 July 2020).
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Nissin Kogyo Co., LTD (“Nissin”), the manufacturer of component parts of the
FBMC. 2 On March 23, 2018, the district court found personal jurisdiction over
Nissin lacking and dismissed it from the action. In doing so, the court rejected
the Stubblefields’ contention that Nissin had waived any personal jurisdiction
objection by litigating for almost two years before filing, on March 17, 2017,
the motion to dismiss for lack of personal jurisdiction that then remained
under advisement for a year.
      After a five-week trial in the United States District Court for the
Southern District of Mississippi, Northern Division, the jury returned a verdict
in favor of Suzuki on December 7, 2018. 3 The jury, responding to special verdict
questions, was asked to answer “yes” or “no” as to whether the evidence
presented at trial established the following elements of the Stubblefields’
design defect claim:
             (1) On September 3, 2005, when the motorcycle left Suzuki’s
             control, Suzuki knew or, in the light of reasonably available
             knowledge or in the exercise of reasonable care should have
             known, about the danger of brake failure that is alleged to
             have caused Brad Stubblefield’s crash;

             (2) Brad used the front brake on January 12, 2012, and the
             front brake failed to function as expected;

             (3) On September 3, 2005, when the motorcycle left Suzuki’s
             control, a feasible alternative design existed that would to a
             reasonable probability have prevented the crash without
             impairing the utility, usefulness, practicality or desirability
             of the motorcycle;




      2  Defendant Suzuki Motor of America, Inc., was dismissed prior to trial.
      3 Trial began in early November 2018. Near the end of the trial, before closing
arguments were made, the Stubblefields withdrew their manufacturing defect and failure to
warn claims, leaving only the design defect claim for jury determination.
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            (4) A defective condition rendered             the   motorcycle
            unreasonably dangerous for Brad to use;

            (5) Brad was harmed by the motorcycle; and

            (6) A defective and unreasonably dangerous design of the
            motorcycle proximately caused Brad’s damages.

      For the Stubblefields to have prevailed against Suzuki at trial, the jury
had to provide affirmative responses to all six elements. Instead, the jury
answered “no” to all of them. Thus, the jury found that the Stubblefields failed
to establish even one of the six elements necessary to prevail, under
Mississippi law, on their design defect claim.
      Following entry of judgment, the Stubblefields filed their December 31,
2018 notice of appeal. They challenge multiple evidentiary rulings of the trial
court, arguing the errors had the cumulative effect of depriving them of a fair
trial against Suzuki.    The Stubblefields also appeal Nissin’s dismissal,
contending the district court erred in finding that Nissin had not waived its
personal jurisdiction defense.     Additionally, during the course of the first
appeal, the trial court ordered the Stubblefields to pay $38,543.64 in costs to
Suzuki. Upon the Stubblefields’ October 24, 2019 appeal of the September 29,
2019 order, the two appeals were consolidated for consideration by this panel.
                                        II.
      Focusing first on Nissin, we consider whether the trial court erred in
dismissing Nissin for lack of personal jurisdiction rather than finding that it
had waived the objection by participating in the litigation. A district court’s
ruling on personal jurisdiction is reviewed de novo. Ham v. La Cienega Music
Co. 4 F.3d 413, 415 (5th Cir. 1993). However, when facts underlying the
jurisdictional determination are disputed, the district court’s factual findings
are reviewed only for clear error. DeJoria v. Maghreb Petroleum Expl., S.A.,
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                                 No. 18-60896
                               c/w No. 19-60812
935 F.3d 381, 390 (5th Cir. 2019) (“Even when an appellate court considers a
legal question de novo, that plenary power of review does not extend to
subsidiary factual findings.”), cert. denied, No. 19-789, 2020 WL 1978947 (U.S.
Apr. 27, 2020); Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir. 2000)
(resolutions of factual dispute are overturned only if clearly erroneous);
Loumar, Inc. v. Smith, 698 F.2d 759, 763 (5th Cir. 1983).
      Brad lives in Mississippi. His motorcycle, however, was never sold or
purchased in Mississippi. Originally titled in Florida, the bike subsequently
was purchased, in 2008, by John Mojtabaee, in Georgia. Mojitabaee bought the
motorcycle, after it was repossessed from its original Florida owner, from
Accu-Car Expo, Inc. In May 2010, Brad traveled from Mississippi to Georgia
to purchase the used motorcycle from Mojitabaee, whom Brad had located on
Craigslist. Brad personally transported the motorcycle from Georgia to
Mississippi, which already had been driven for 8,000 miles, before its first
entry into Mississippi.
      The district record does not reflect any dispute relative to Nissin’s
foreign (Japan) manufacturing location and the absence of any actions by it to
direct or market its products to Mississippi. Nissin manufactures FBMCs and
other brake components in accordance with its customers’ purchase orders,
plans, specifications, and instructions. Following manufacture in Japan,
Nissin delivers its FBMCs as uninstalled parts to its manufacturing
customers. Once the parts are delivered to its various customers, Nissin has
no control over the FBMCs or other brake components, including where they
may be installed in vehicles, or where any vehicles that may contain the
component parts are ultimately shipped, distributed, sold, or re-sold.
      Instead, its products—component parts—are manufactured for and
delivered only to foreign buyers. Indeed, given the bike’s initial purchase by a

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Florida resident, the only apparent nexus between the bike in question and the
state of Mississippi is Brad’s decision to buy the bike—second-hand—from a
Georgia resident who had advertised it on Craigslist. On these facts, a finding
of no personal jurisdiction over Nissin is easily supported. Thus, on appeal,
the real question is whether Nissin waived its right to object by participating
in the litigation.
      In challenging the district court’s “no waiver” ruling, the Stubblefields
understandably complain that their suit was pending for two years before
Nissin filed its motion to dismiss on March 17, 2017, and that, in the interim,
Nissin participated in discovery and filed a demand for trial by jury.
Nevertheless, this court has recognized that Federal Rule of Civil Procedure
12(b) allows a “non-resident defendant ‘to simultaneously protest personal
jurisdiction while vigorously advocating the merits of his case.’” Halliburton
Energy Servs., Inc. v. Ironshore Specialty, 921 F.3d 522 (5th Cir. 2019) (quoting
Toshiba Int’l Corp. v. Fritz, 993 F. Supp. 571, 573–74 (S.D. Tex. 1998)). Here,
Nissin denied the existence of personal jurisdiction in its first Rule 12 filing—
its answer—and reiterated that objection in the March 2017 status report
required by the district court.
      Furthermore, the two years prior to the filing date of Nissin’s motion to
dismiss included a five-month stay, a delay associated with the parties’ efforts
to negotiate a protective order, multiple extensions of discovery deadlines, and
the district court’s entry of a new scheduling order, in December 2016, setting
a November 2017 trial date and new pre-trial deadlines. At no time did Nissin
seek affirmative relief sufficient to submit itself to the court’s jurisdiction.
Finally, when Nissin filed its motion to dismiss, the deadline for amendment
of pleadings was a month away, the discovery deadline was five months away,



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                               c/w No. 19-60812
and the dispositive motion deadline was six months away. On this showing,
affirmance of the district court’s dismissal order is warranted.
                                       III.
      Turning next to the Stubblefields’ claims against the motorcycle
manufacturer, Suzuki, we note again that Brad has alleged that his January
12, 2012 accident occurred during the course of his usual morning ride to work
when the front braking system on his motorcycle suddenly and unexpectedly
failed, causing him to be unable to stop. The motorcycle crossed over a 132-
foot concrete gore, and another lane of traffic, before plunging down a grassy
embankment and crashing into the ravine below.
      The cause of the accident could not be definitively determined from the
available evidence and was hotly contested at trial. On the day of the accident,
Brad was immediately taken by ambulance to the emergency room of
University of Mississippi Medical Center. There, he was placed in a medically
induced coma and, upon awakening in the ICU a week later, remembered
nothing about the day of the accident or his interim hospital stay. Rather, his
last memory prior to awakening in the hospital is riding the motorcycle home
from work the night before the accident.
      Initially, Brad and his family assumed the accident was caused by a
patch of gravel along the outer edge of the roadway in which Brad was
traveling prior to the accident. Despite the memory loss rendering him unable
to actually recall the events, Brad, on October 14, 2012, explained the crash,
in an online forum for motorcycle enthusiasts, as follows:
            Back in January, I was on my way to work when I
            came across some gravel mid corner. There was too
            much to avoid so I had to stand the bike up, hit the
            brakes, and slide off the road into the grass (no big deal



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                                      c/w No. 19-60812
               right?). I ended up going down an embankment and
               landing on my left side at impact. 4

       After Brad’s accident, his wife, Kristan Stubblefield (“Kristan”) created
an online blog regarding the event and his injuries. In her first entry, dated
May 19, 2012, she likewise blamed the crash on roadway gravel: “My husband
was on his way to work, just like every other day, when he hit a patch of gravel
on his motorcycle. Brad had to straighten the bike out and ended up riding
down an embankment.”
       Thereafter, on November 18, 2013, Suzuki issued a Safety Recall of the
front brake master cylinder of GSX-R motorcycles for the model years 2004–
2013. The Safety Recall Notice states, in pertinent part:

                          IMPORTANT SAFETY RECALL

       This Notice Applies to Your Motorcycle VIN XXXXXXXXXXXXXXXX
               November 18, 2013
               Dear Suzuki Owner:
               This notice is sent to you in accordance with the
               requirements of the National Traffic and Motor
               Vehicle Safety Act. Suzuki Motor Corporation has
               decided that a defect which relates to motor vehicle
               safety exists in 2004-2013 GSX-R600, 2004-2013 GSX-
               R750 and 2005-2013 GXX-R1000 Suzuki motorcycles.

               What is the problem?

               After a long service life of the motorcycle without
               changing the brake fluid, the brake fluid can


       4 In the same post, Brad said his father rode the motorcycle after the crash “to make
sure the motor, brakes, suspension, steering, etc., still work like they used to and [his father
said that he] couldn’t tell a difference.” In a June 3, 2013 post, Brad described the motorcycle’s
post-crash condition: “There is no damage to the frame, motor, suspension, steering, wheels,
brakes, clutch, exhaust, etc.”
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                            No. 18-60896
                          c/w No. 19-60812
       deteriorate and absorb moisture. The brake piston
       inside the front brake master cylinder of some
       motorcycles may not have uniform surface treatment.
       This combination of conditions can lead to corrosion of
       the brake piston. Corrosion of the brake piston
       generates gas, which may not be adequately purged
       from the master cylinder due to the side position
       location of the reservoir port. Gas remaining in the
       master cylinder can affect braking power by reducing
       proper fluid pressure transmission to the front brake.
       Over time, as gas continues to slowly accumulate
       above the reservoir port, the front brake lever may
       develop a “spongy” feel and stopping distances may be
       extended, increasing the risk of a crash.

        For your safety and customer satisfaction we are
       initiating a safety recall campaign to replace the
       affected front brake master cylinder.

                             WARNING
        Operating your motorcycle without having
        the recall service performed may increase the
        risk of a crash.

        To minimize the risk of a crash, do not ride or
        allow anyone else to ride your motorcycle
        until this recall service has been completed.


       What is Suzuki doing to solve the problem?

       Your dealer will replace the front brake master
       cylinder. The redesigned master cylinder has the
       reservoir port located at the top to allow better purging
       of gas and a uniform surface treatment on the master
       cylinder piston. Your dealer will also flush the brake
       hydraulic system of old brake fluid. The brake
       hydraulic system will then be refilled with fresh brake
       fluid and bled to remove any air from the system. This
       procedure will take approximately 2 hours to

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            complete. Parts are available now, and there will be
            no charge to you for any recall service-related parts or
            labor.

      Upon learning of Suzuki’s November 2013 Safety Recall, Kristan and
Brad’s father, Dan, reportedly recalled comments and a hand motion that Brad
allegedly had made in the hospital emergency room on the day of the accident.
Specifically, the Stubblefields contend, Brad told Kristan and Dan: “front
brake, front brake,” while, at the same time, clenching his right hand as if
squeezing something (as if referring to the manner in which a motorcycle’s
front hand brake is used). At that point, they reconsidered their previous
assumptions regarding the cause of the accident. Indeed, in a January 9, 2014
blog post, Kristan states: “Forget the former things . . .,” referencing “new
information about Brad’s accident.”
      Suzuki attributes Kristan’s January 9, 2014 statement regarding the
accident to its November 18, 2013 Safety Recall. It also emphasizes that
Kristan had not previously referenced “Brad’s alleged ‘front brakes’ statements
in the hospital” in her blog.
      In any event, the Stubblefields filed suit in January 2015, contending the
FBMC on Brad’s motorcycle suffered the same defect identified in the
November 2013 Safety Recall and had caused the January 2012 accident. At
the November 2018 trial, the Stubblefields argued that Brad crossed over the
concrete gore, before crashing down the grassy ravine, because the car in front
of him (driven by Karen Richmond) unexpectedly slowed, requiring him to also
slow to avoid hitting her. Then, when Brad’s front brake did not “work right,”
he tried to avoid her on the left where, because there was gravel, he
appropriately applied his rear brake (as evidenced by the skid mark in the




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                                     No. 18-60896
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gravel), but not his front brake, until he was atop the gore. 5 Once there, Brad
argues, he, an experienced rider, absolutely would have used his front brake
as he traversed the gore, but it failed, causing him to go down in the ravine
where he crashed with the motorcycle on top of him.
       Suzuki, on the other hand, argues that Brad was never in the lane behind
Ms. Richmond. Rather, having unsuccessfully tried to pass her while entering
the single lane ramp, Brad knew that he could not use his front brake in the
gravel, so he steered on the gore, where, Suzuki argues, “there’s no evidence of
any attempt to use that [front] brake” on the gore “to lock up the front brake,”
or any evidence of use of the rear brake. Indeed, Suzuki contends that “with
the rear brake only, he could have stopped onto the gore.” Instead, Suzuki
maintains, once out of the gravel and on the gore, Brad “had choices,” and given
his “thousands of hours of off-road [riding] experience,” likely decided his best
option “was to ride into the grass that was in front of him,” slowing down there,
prior to returning to the roadway, “[not] realizing or fully appreciating how
steep the ravine was.” In support of its theory, Suzuki cites Brad’s
aforementioned October 2012 post-accident forum post, describing his going
off-road as “having to slide off the road into the grass. No big deal. Right? [until
going down the embankment].”
       As set forth above, the jury, responding to special verdict questions,
determined that the Stubblefields had failed to establish any of the required
elements of their design defect claim. Appealing the adverse verdict, the
Stubblefields raise the following issues:




       5 According to the parties’ submissions, it is undisputed that use of the front brake
should be avoided in gravel if possible because of associated safety concerns.
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                                 No. 18-60896
                               c/w No. 19-60812
      Issue 1: Did the district court err in excluding Suzuki’s Product Recall
               Notice from evidence pursuant to Federal Rule of Evidence 407
               and Federal Rule of Evidence 403?

      Issue 2: Did the district court err in interrupting the Stubblefields’
               cross-examination of Suzuki expert Todd Hoover for the
               weekend to allow him to review his testimony from a prior trial
               and then excluding the testimony from evidence?

      Issue 3: Did the district court err in excluding from evidence testimony
               by Kristan (Brad’s wife) and Dan (Brad’s father) regarding
               statements and hand gestures allegedly made by Brad in the
               emergency room shortly after the accident?

      Issue 4: Did the district court err in failing to remove two jurors who
               may have openly discussed the case before the trial began?

      Issue 5: Did the district court err in admitting character evidence of
               Brad’s driving, in the form of blog posts written by Brad in a
               GSX-R riders’ forum?

      Issue 6: Did the district court err in excluding from evidence all of
               Suzuki’s customer complaints of front brake problems
               resulting in loss of braking ability, nine other accidents
               resulting in lawsuits, and all investigation documents, which
               all involved Suzuki GSX-R motorcycles with the front brake
               design identical to Brad’s?

Because it concerns jury selection, rather than the evidentiary determinations
challenged in the Stubblefields’ other assertions of error against Suzuki, we
begin our analysis with Issue No. 4, and then continue with the remainder.
      Issue on Appeal No. 4 – Jury Selection Ruling
      In Issue No. 4, the Stubblefields contend the trial court erred in failing
to remove two jurors who may have openly discussed the case before the trial
began. Potential jurors should be excused for cause if his or her “‘views would
prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’” United States v. Ross, 367 F.

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App'x 519, 524 (5th Cir. 2010) (quoting Soria v. Johnson, 207 F.3d 232, 242
(5th Cir. 2000)). The party seeking to exclude a juror because of bias bears the
burden of demonstrating partiality. Wainwright v. Witt, 469 U.S. 412, 423
(1985). “We review a district court’s ruling on a prospective juror’s impartiality
for manifest abuse of discretion.” United States v. Wharton, 320 F.3d 526, 535
(5th Cir. 2003); United States v. Munoz, 15 F.3d 395, 397 (5th Cir. 1994).
      The trial transcript reveals that the district court thoroughly
investigated the Stubblefields’ negative assertions and confirmed, on the
record, that the two jurors understood that the jury’s verdict must rest solely
on the evidence—not sympathy, other emotion, or any biases—and that they
were capable of satisfying that duty. The district judge also confirmed that the
two jurors understood that they were not to discuss the case until their
deliberations at the end of trial. On this record, we find no abuse of discretion
in the district court’s decision to retain these jurors.
      Issues on Appeal Nos. 1, 2, 3, 5 and 6 – Evidentiary Rulings
      Issue Nos. 1, 2, 3, 5 and 6 challenge evidentiary rulings germane to
questions that the jury was asked regarding the elements of a products liability
defective design claim, i.e., whether Brad used the front brake, whether it
failed, whether brake failure caused the accident, whether the brake was
defective and unreasonably dangerous at the time that it left Suzuki’s control
in September 2005, whether Suzuki knew or should have known of the danger
at that time, and whether a feasible design alternative that would have
prevented the harm also existed at that time.
      Regarding this query, the Stubblefields’ briefs include the following
synopsis of their position vis-à-vis the district court’s treatment of their design
defect claim against Suzuki:



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             The exclusion of the investigation documents, the exclusion
      of the customer complaints, and the exclusion of the Safety Recall
      notice misled the jury into believing that Brad’s front brake failure
      was a unique, isolated event. This error also served to buttress
      Suzuki’s narrative that Brad’s accident was solely the result of
      Brad’s dangerous driving and improper maintenance, rather than
      Suzuki’s mechanical failure. “This wholesale, blanket exclusion of
      evidence led to some obviously artificial and unreasonable results.”
      Jackson, 788 F.2d at 1084. These errors substantially prejudiced
      Plaintiffs by depriving them of their right to a fair trial.

For the Stubblefields to have prevailed at trial, the jury would have had to
provide affirmative responses to all six of the verdict form questions set forth
above. Instead, the jury answered all of them in the negative. Thus, in order
to prevail on appeal, the Stubblefields must establish reversible error sufficient
to invalidate the entirety of the jury verdict—either considering it as a whole
or as to each of the six individual elements of their design defect claim.
      Before addressing the Stubblefields’ evidentiary challenges seriatim, we
pause to emphasize certain points guiding our analysis. To start, this appeal
follows a full 19-day jury trial resulting in a unanimous jury verdict in Suzuki’s
favor. Furthermore, we review the district court’s evidentiary rulings for abuse
of discretion. Wallace v. Andeavor Corp., 916 F.3d 423, 428 (5th Cir. 2019)
(citations omitted). “A trial court abuses its discretion when it bases its
decision on an erroneous view of the law or a clearly erroneous assessment
of the evidence.” Id. “A finding is ‘clearly erroneous' when although there is
evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.” Anderson
v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Importantly, “[t]his
standard plainly does not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would have decided the case
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differently.” Anderson, 470 U.S. at 573. Finally, in order to vacate a judgment
based on an error in an evidentiary ruling, “this court must find that the
substantial rights of the parties were affected.” Seatrax, Inc. v. Sonbeck Int’l,
Inc., 200 F.3d 358, 370 (5th Cir. 2000) (quoting Carter v. Massey-Ferguson, Inc.,
716 F.2d 344 (5th Cir. 1983).
      As indicated above, the first element of the Stubblefields’ products
liability claim is whether Suzuki knew or should have known, in 2005, when
the motorcycle left its control, about the danger of brake failure that is alleged
to have caused Brad’s motorcycle accident. Issue on Appeal No. 6, concerning
so-called “OSIs” (other similar incidents) is relevant to this first element.
      Issue on Appeal No. 6 – Other Similar Incidents
      At trial, the Stubblefields attempted to introduce evidence of “customer
complaints,” and “other similar incidents” involving motorcycle accidents, as
well as post-accident investigation documents leading to the November 2013
recall, to support their assertion that Suzuki had had the requisite notice
required by Mississippi law. The district court’s rejection of this evidence for
that purpose, however, falls within the scope of its discretion. In reaching this
conclusion, we note that much of the evidence in question involved incidents
that occurred after 2005 (the year that Suzuki introduced this bike into
commerce), incidents for which the applicable date was not apparent, and/or
incidents that were not sufficiently similar, and thus lacked relevance.
Certainly, another judge, tasked with addressing this evidentiary dispute in
the first instance, might permissibly conclude that a portion of the proffered
evidence should be admitted into evidence, rather than excluded. In that
scenario, the parties’ focus would shift to debating the proper weight of the
evidence, utilizing witness testimony, vigorous cross-examination, and
argument. That possibility, however, does not govern our appellate review.

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Rather, the scope of our review is properly limited by the applicable abuse of
discretion standard.
       On this point, the Stubblefields argue little more than “everyone in the
world knows that brake components can corrode under the wrong situation,
like the zinc/steel galvanic connection,” which gives off hydrogen gas. They do
not point to pertinent expert testimony or admissible trial evidence
demonstrating that Suzuki either knew or should have known, when Brad’s
bike left its control in 2005, that its FBMC design would yield sufficient levels
of corrosion, and/or resulting trapped gas, to cause front brake failure even if
the brake fluid were changed as directed by the manufacturer. 6
       The district court also was tasked with determining evidentiary disputes
relevant to the second, third, fourth, fifth, and sixth elements of the
Stubblefields’ design defect claim. Those determinations are presented for
appellate review by Issues on Appeal Nos. 1, 2, 3, and 5.




       6   Suzuki’s brief describes the alleged design defect as follows:
                First, a zinc piston in the FBMC contacted a steel return spring,
                allegedly creating a galvanic couple that corroded the piston,
                disrupted a seal in the FBMC, and impaired brake performance.
                The corrosion also allegedly created hydrogen gas in the FBMC,
                reducing fluid power transmission to the front brake, and
                further interfering with the brake’s performance.

                Second, locating a reservoir return port on the side of the FBMC,
                rather than the top, prevented hydrogen gas from escaping, also
                interfering with braking performance.

A “galvanic couple” is a pair of dissimilar substances (such as metals) capable of acting
together as an electric source when brought in contact with an electrolyte. See “galvanic
couple.” Merriam-Webster.com. 2020.
https://www.merriam-webster.com/dictionary/galvanic%20couple (2 July 2020).

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                                       No. 18-60896
                                     c/w No. 19-60812
      Issue on Appeal No. 1 – Product Recall Notice
      Issue No. 1 concerns whether the district court erred in excluding
Suzuki’s November 2013 Product Recall notice pursuant to Federal Rule of
Evidence 407, regarding subsequent remedial measures, 7 and Federal Rule of
Evidence 403. 8 The Stubblefields maintain that the safety recall notice is
relevant to the second, third, fourth, fifth, and sixth elements of their claim.
Specifically, they contend that the recall should have been admitted as
evidence of causation, for impeachment, and to demonstrate that a feasible
alternative design existed when the motorcycle left Suzuki’s control, in 2005,
that would, to a reasonable probability, have prevented the crash.
      Pertinent to this inquiry, the parties have disputed the ongoing validity
and impact of Brazos River Auth. v. GE Ionics, Inc. 469 F.3d 416 (5th Cir. 2006),
and Rutledge v. Harley-Davidson Motor Co., 364 F. App’x 103, 106 n.4 (5th Cir.
2010), regarding use of such evidence to prove causation and impeachment.
Based on these cases, Suzuki has argued, and the district court agreed, that


      7   Federal Rule of Evidence 407 (Subsequent Remedial Measures) states:
                When, after an injury or harm allegedly caused by an event,
               measures are taken that, if taken previously, would have made
               the injury or harm less likely to occur, evidence of the
               subsequent measures is not admissible to prove negligence,
               culpable conduct, a defect in a product, a defect in a product’s
               design, or a need for a warning or instruction. This rule does not
               require the exclusion of evidence of subsequent measures when
               offered for another purpose, such as proving ownership, control,
               or feasibility of precautionary measures, if controverted, or
               impeachment.

      8   Federal Rule of Evidence 403 provides:
                  The court may exclude relevant evidence if its probative value
               is substantially outweighed by a danger of one of the following:
               unfair prejudice, confusing the issues, misleading the jury,
               undue delay, wasting time, or needlessly presenting cumulative
               evidence.

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                                  No. 18-60896
                                c/w No. 19-60812
Federal Rule of Evidence 407, as amended in 1997, disallows use of such
evidence to prove causation, and for impeachment, when doing so would allow
the evidence to be used in proving a defect. In support of Suzuki’s position, its
counsel, at oral argument, additionally cited Hardy v. Chemetron Corp., 870
F.2d 1007, 1011 (5th Cir. 1989) (“[e]vidence of subsequent measures is no more
admissible to rebut a claim of non-negligence than it is to prove negligence
directly”). In response, the Stubblefields continue to argue that their proposed
use of the recall notice falls outside Rule 407’s exclusionary boundaries.
      Given the record before us, it us unnecessary for us to parse the fine
points of these arguments. As Suzuki has emphasized, the recall, as written,
is not applicable because it addresses conditions occurring only when the brake
fluid of a motorcycle with a long service life has not been changed timely. In
this instance, it is undisputed that Brad had changed his brake fluid within
the recommended time frame. Furthermore, regarding impeachment, when
the expert witness statements at issue are read carefully, in context, and with
attention to detail, it is apparent that they actually are not contrary to the
information set forth in the recall.
      Finally, regarding possible use of the recall notice to establish that a
feasible alternative design existed when the motorcycle left Suzuki’s control,
that would, to a reasonable probability, have prevented the crash, the district
court determined such use was likewise impermissible under Mississippi law.
This conclusion rests on the Stubblefields’ expert’s opinion that using the
substitute FBMC provided with the recall would not “to a reasonable
probability have prevented the crash.”
      On this point, the Stubblefields’ expert, Jeffrey Hyatt, opined that the
primary cause of the crash was corrosion (in the form of a gel substance) rather
than the hydrogen gas resulting from that corrosion. Because the post-recall

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                                  No. 18-60896
                                c/w No. 19-60812
FBMC maintained the design (a zinc piston directly contacting a steel spring)
that Hyatt opined would have created corrosion, having the port at the top of
the FBMC (as did the post-recall FBMC) to better vent the gas would only
lessen the chances of, not prevent, the crash. Based on this reasoning, the
“feasible alternative design” exception to Rule 407 would not be triggered.
Thus, we find no abuse of discretion in the district court’s decision precluding
the admission of the recall notice and post-recall FBMC.
      Issue on Appeal No. 2 – Hoover Testimony
      Issue No. 2 concerns the district court’s weekend interruption of the
Stubblefields’ examination of Suzuki expert Todd Hoover so that Hoover could
first review prior testimony, but then excluding the entirety of that testimony.
Hoover’s previous testimony concerned the reason for which the FBMC was
replaced on Hoover’s personal motorcycle. The Stubblefields’ examination of
Hoover did not resume the following Monday, however, because, in the interim,
the district court decided the prior testimony would not be allowed since it
would reference, or elicit a reference to, the excluded recall notice. Because the
panel has found no abuse of discretion regarding the district court’s exclusion
of Suzuki’s November 18, 2013 recall notice, we likewise find no reversible
error in interrupting, and then excluding from evidence, prior testimony that
would have included a reference to, and most likely discussion of, the banned
recall notice.
      Issue on Appeal No. 3 – Hearsay in the ER
      Issue No. 3 concerns Brad’s alleged emergency room “front brake, front
brake” statements and hand gesture (as if he were attempting to squeeze his
motorcycle’s front brake) about which his father and wife unsuccessfully
sought to testify. Given Brad’s inability to remember the day of his accident,
this excluded testimony is relevant to the second element of the Stubblefields’

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                                       No. 18-60896
                                     c/w No. 19-60812
claim, i.e., Brad’s alleged attempted “use” of his front brake and its “failure” on
the day of the accident. Despite the Stubblefields’ arguments for the
application of either the “excited utterance” hearsay exception provided by
Federal Rule of Evidence 803(2), the “dying declaration” exception provided by
Federal Rule of Evidence 804(b)(2), or the “residual hearsay exception”
provided by Federal Rule of Evidence 807(a), the district court’s rejection of
this evidence is likewise well within the scope of its discretion. 9




      9   Federal Rule of Evidence 803(2) (Hearsay Exceptions) states:

              The following are not excluded by the rule against hearsay,
          regardless of whether the declarant is available as a witness:

               ...

                (2) Excited Utterance. A statement relating to a startling
               event or condition, made while the declarant was under the
               stress of excitement that it caused.

           Federal Rule of Evidence Exception 804(b) states:

               The following are not excluded by the rule against hearsay if the
               declarant is unavailable as a witness:
                      ...

                 (2) Statement Under Belief of Imminent Death. In a
               prosecution for homicide or in a civil case, a statement that the
               declarant, while believing the declarant’s death to be imminent
               made about its cause or circumstance.

           Federal Rule of Evidence 807(a)(Residual Exception) states:

               (a) In General. Under the following conditions, a hearsay
               statement is not excluded by the rule against hearsay even if the
               statement is not admissible under a hearsay exception in Rule
               803 or 804:
                    (1) the statement is supported by sufficient guarantees of
               trustworthiness—after considering the totality of circumstances
               under which it was made and evidence, if any, corroborating the
               statement; and
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                                    No. 18-60896
                                  c/w No. 19-60812
      Notably, both Brad’s father (Dan) and wife (Kristan) purportedly failed
to remember and/or mention Brad’s emergency room “front brake” statements
and hand gesture until almost two years later, after they learned of Suzuki’s
November 18, 2013 recall of its FBMC. They also apparently failed to question
Brad (or any of the first responders/health care providers) while in the
emergency room regarding his unclear statements, and have not shown that
the comments were made in response to particular questions asked by anyone
there. One reasonably could question the likelihood of these circumstances,
given that all of these persons, then present in the emergency room,
presumably would have some significant interest in knowing what had
happened.
      Furthermore, the district judge could reasonably doubt that Dan, an
experienced motorcycle rider of many years, who had helped Brad select the
wrecked motorcycle, would leave the hospital to retrieve the bike for
safekeeping, and then ride and examine the bike to ascertain its condition, but
not promptly investigate, or even remember, for almost two years, the cryptic
message that his severely injured son reportedly struggled to convey about the
bike’s front brake upon arriving at the emergency room. Certainly, some delay
in recollection and investigation is understandable given the tragedy of Brad’s
injuries and the resulting major impact on his and his family’s lives.
Nevertheless, given the totality of the circumstances, the district court




                (2) it is more probative on the point for which it is offered
            than any other evidence that the proponent can obtain through
            reasonable efforts.



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                                       No. 18-60896
                                     c/w No. 19-60812
reasonably concluded the proffered emergency room evidence lacked the
necessary indicia of reliability.
      Lastly, the “dying declaration” hearsay exception applies only when a
declarant’s state of mind is such that death is thought to be imminent. Here,
whereas Brad’s injuries undisputedly were serious, nothing in the record
supports an inference that, while in the emergency room, he thought that he
was about to die. Although Kristan testified that she inquired whether Brad
“would make it” and was thankful that he was alive, despite his paralysis,
neither point is sufficiently indicative of Brad’s state of mind to require that
the evidence in question be admitted.
      Issue on Appeal No. 5 – Brad’s Pre-Accident Blog Posts
      Issue No. 5 challenges the district court’s pre-trial denial of the
Stubblefields’ motion in limine seeking to exclude any testimony that Brad was
a “careless, reckless, or aggressive motorcycle driver,” reasoning any such proof
“is highly probative” of the first and second elements of the design defect
claim—whether he attempted to “use” his front brake and whether the brake
failed to perform as expected. At trial, the district court, citing Federal Rule
of Evidence 406, regarding evidence of a “habit or preferred behavior,”
admitted into evidence five pre-accident posts written by Brad in a GSX-R
riders’ forum, between March 14, 2011 and July 27, 2011, over the
Stubblefields’ objections asserted under Federal Rules of Evidence 404(b)(1)
and 403. 10 The posts at issue state:



      10   Federal Rule of Evidence 406 (Habit; Routine Practice) states:

               Evidence of a person's habit or an organization's routine practice
               may be admitted to prove that on a particular occasion the
               person or organization acted in accordance with the habit or
               routine practice. The court may admit this evidence regardless
                                              22
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                                    No. 18-60896
                                  c/w No. 19-60812
      Exhibit D-475-1: “I wanted a bike I could ride every day while still
      hitting the twisties out in the country on the weekends . . . the bike
      is also a beast up top and in the twisties so it was perfect for me.”
      (posted on May 19, 2011).

      Exhibit D-475-4: “During the week, I ride about 15 miles each way
      to work and back on the interstate. I stay around 80mph.” (posted
      on May 19, 2011).

      Exhibit D-475-6: In response to a thread started by another, asking
      the question “What pisses you off?” Brad posted the following:
      “People pulling out in front of me so late that the only option is to
      pass them somehow, even if it requires splitting the middle lane or
      going off road. It’s either that or smashing into them, time to brake
      is not an option. People driving under the speed limit.” (posted on
      March 14, 2011).

      Exhibit D-477-5: “I’m intentionally doing a wheelie, I let off the gas
      then give it about ½ throttle.” (posted on June 10, 2011).

      Exhibit D-477-7: “My goal for this bike was comfort . . . and speed
      (back country roads/mountains)” (posted on July 27, 2011).

      Considering the record at hand and the parties’ submissions, we
conclude the district court’s admission of these statements was a reasonable
exercise of its discretion or, even if error, not reversible error. The posts provide



             of whether it is corroborated or whether there was an
             eyewitness.

          Federal Rule of Evidence 404(b) (Character Evidence; Crimes or
         Other Acts) states:
             ...

             (b) Crimes, Wrongs, or Other Acts.
                    (1) Prohibited Uses. Evidence of a crime, wrong, or other
             act is not admissible to prove a person's character in order to
             show that on a particular occasion the person acted in
             accordance with the character.

                                           23
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                                  No. 18-60896
                                c/w No. 19-60812
some insight into Brad’s pre-accident riding habits and preferences, including
the possibility of riding off-road in circumstances where he would lack
sufficient time to brake because of another driver’s actions. Furthermore,
witness testimony, argument by counsel, and, if warranted, instructions from
the court were available to address the appropriate weight to be given and/or
any applicable limitations to be applied.
                                       IV.
      Following the district court’s entry of final judgment on the jury’s verdict,
Suzuki submitted a bill of costs, as a prevailing party, pursuant to 28 U.S.C.
§ 1920 and Rule 54 of the Federal Rules of Civil Procedure. The Stubblefields
filed a motion objecting to the bill of costs and the district court denied the
Stubblefields’ motion. The Stubblefields appeal the $38,543.64 cost award
rendered in Suzuki’s favor.
      The Federal Rules of Civil Procedure explicitly permit the prevailing
party at trial to recover costs. Rule 54 states: “Unless a federal statute, these
rules, or a court order provides otherwise, costs—other than attorney’s fees—
should be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). Thus,
taxable costs are presumptively awarded to the prevailing party. Moore v.
CITGO Ref. & Chem. Co., L.P., 735 F.3d 309, 320 (5th Cir. 2013). The denial
of costs requires the trial court to “articulat[e] some good reason for doing
so.” Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985). Nevertheless, the
word “should” in § 1920 “makes clear that the decision whether to award
costs ultimately lies within the sound discretion of the district court.” Marx
v. Gen. Revenue Corp., 566 U.S. 371, 377 (2013) (internal quotations
omitted). “Because the Rule authorizes the district court to deny the award,
we review that exercise of authority for abuse of discretion.” Pacheco v.
Mineta, 448 F.3d 783, 793 (5th Cir. 2006). The district court’s award of costs

                                       24
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                                 No. 18-60896
                               c/w No. 19-60812
will only be reversed upon a clear showing of an abuse of that discretion.
Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998). “A district
court abuses its discretion when its ruling is based on an erroneous view of
the law or a clearly erroneous assessment of the evidence.” Nunez v. Allstate
Ins. Co., 605 F.3d 840, 844 (5th Cir. 2010).
      Categories of recoverable costs are set forth in 28 U.S.C. § 1920, which
provides:
      A judge or clerk of any court of the United States may tax as costs
      the following:

            (1) Fees of the clerk and marshal;

            (2) Fees for printed or electronically recorded transcripts
            necessarily obtained for use in the case;

            (3) Fees and disbursements for printing and witnesses;

            (4) Fees for exemplification and the costs of making copies of
            any materials where the copies are necessarily obtained for
            use in the case;

            (5) Docket fees under section 1923 of this title; and

            (6) Compensation of court appointed experts, compensation
            of interpreters, and salaries, fees, expenses, and costs of
            special interpretation services under section 1828 of this
            title.

            A bill of costs shall be filed in the case and, upon allowance,
            included in the judgment or decree.

28 U.S.C. § 1920. See also Gaddis v. United States, 381 F.3d 444, 455–56 (5th
Cir. 2004) (deposition transcripts and private service fees recoverable under 28
U.S.C. § 1920); Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64–65 (5th Cir. 1994)
(daily transcripts and witness fees, including travel fees, recoverable by
prevailing party); Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d

                                       25
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                                    No. 18-60896
                                  c/w No. 19-60812
1530, 1552–53 (5th Cir. 1984) (permitting fees for witness who did not testify
given another witness’ last-minute decision not to testify).
      Here, Suzuki sought, and was awarded the following:
               (1) Fees for service of summons and subpoena - $113.61
               (2) Fees for printed deposition transcripts - $15,658.40
               (3) Fees for daily trial transcripts - $19,884.85
               (4) Fees for witnesses - $2,886.78
                                                     Total: $38,543.64
On appeal, the Stubblefields contend that the district court abused its
discretion in awarding costs, and further abused its discretion in refusing to
reduce the amount of costs awarded.
      Beginning with their assertion that we should not affirm the award of
costs, the Stubblefields argue the following: (1) that they possess limited
financial resources; (2) that Suzuki perpetrated misconduct during the
litigation; (3) that the lawsuit featured close and difficult legal issues; (4) that
the litigation conferred a substantial benefit to the public; and (5) that the
prevailing party has enormous financial resources. Certain specific items of
expenses also are challenged on independent grounds: the costs for
independent process servers are unreasonable; the transcripts were not
necessarily obtained in preparation for litigation; the daily transcript fees were
unreasonable; and the witness fees for two non-testifying witnesses are
unjustified.
      The district court found the Stubblefields improperly relied upon
Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2011), for their position that the case
required the court to assess certain enumerated factors in deciding whether to
deny an award of costs. Nevertheless, the district court analyzed the
Stubblefields’ two arguments under this standard and found neither sufficed

                                          26
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                                  No. 18-60896
                                c/w No. 19-60812
to overcome the presumption of awarding costs to SMC as the prevailing party.
The district court then addressed each category of costs sought by Suzuki and
challenged by the Stubblefields, finding no basis to reduce the amount
awarded.
      We find no abuse of discretion in the district court’s determination of the
Stubblefields’ challenge to Suzuki’s cost award. At the outset, we again
emphasize that the applicable query is not whether another judge would have
rendered the same ruling. Rather, it is whether the district court charged with
this discretionary duty abused that discretion. In this instance, we are
particularly mindful of the district court’s necessary familiarity with the record
in this case, having considered several weighty motions and presided over a
19-day trial presenting numerous evidentiary battles.
      We begin with the smaller fees in dispute: the summons/subpoena fees
and the witness fees for persons who ultimately did not testify. We find no
error in the district court’s assessment that private process fees are recoverable
and that witness fees were warranted for witnesses who were present and
prepared to testify.
      The most substantial costs challenged are those for deposition
transcripts ($15,884.85) and daily trial transcripts ($19,885.85). “[I]t is not
required that a deposition actually be introduced in evidence for it to be
necessary for a case—as long as there is a reasonable expectation that the
deposition may be used for trial preparation, it may be included in costs.”
Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir.
1999). The parties’ submissions reflect that the depositions at issue were either
of the Stubblefields, eyewitnesses, first responders, damage witnesses, or
expert witnesses. Many of the deponents were witnesses at trial or were on a
“may call” witness list for trial. Otherwise, the transcripts were used in a

                                       27
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                                  No. 18-60896
                                c/w No. 19-60812
motion, or relied upon by experts in confecting opinions formulated in
preparation for trial. On this showing, we cannot fault the district court’s
determination that all of the depositions at issue were necessarily obtained for
use in the case and most of the deposition transcripts were in fact used at trial.
       To award the cost of daily transcripts, the court must find that they were
not “obtained primarily for the convenience” of the parties but were
“necessarily obtained for use in this case.” Brumely Estate v. Iowa Beef
Processors, Inc., 704 F.2d 1362, 1363 (5th Cir.1983). In applying this rule,
courts generally have considered the “length of the trial, the complexity of the
issues, whether a daily transcript was necessary to minimize disagreement
over the testimony of witnesses, and whether proposed findings of fact were
required.” Graves for and on Behalf of W.A.G. v. Toyota Motor Corp., No.
2:09CV169KS-MTP, 2012 WL 13018892, at *3 (S.D. Miss. Apr. 27, 2012); see
also Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (finding
district court’s award of daily transcript costs appropriate where transcripts
necessary to a successful verdict); Maris Distrib. Co. v. Anheuser-Busch, Inc.,
302 F.3d 1207, 1226 (11th Cir. 2002) (proper to award costs of daily trial
transcripts due to length and complexity of trial).
      Here, the district court reasoned that the jury trial lasted 19 days over
a five-week period of time encompassing both the Veterans Day and
Thanksgiving Day court holidays. Further, the district court issued various
evidentiary rulings in oral form that were only encapsulated within the
transcript, and the parties were required to rely upon such to make evidentiary
objections and answers to objections. Additionally, Suzuki used the daily
transcripts within its various motions filed during the pendency of the jury
trial, in a trial brief filed during its case-in-chief, and in its closing argument.
And, in at least one instance, one of the Stubblefields’ expert witnesses utilized

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                                 No. 18-60896
                               c/w No. 19-60812
the daily transcript of another witness, in an attempt to modify his opinion.
Expert witnesses also used the transcripts to stay fully apprised of the witness
testimony.
      Based on the foregoing, we are satisfied by the district court’s finding
that daily transcripts were not “obtained primarily for the convenience” of the
parties but were “necessarily obtained for use in this case.” As recently noted
by this court: “Appellate court deference to district court factfinding is
grounded in concerns of both expertise and efficiency.” DeJoria, 935 F.3d at
391. “District court judges, who do the lion’s share of the work in our federal
system, do not dig through voluminous records only to have courts like this one
restart the factfinding from scratch.” Anderson, 470 U.S. at 574. “Instead of
redoing their work, we defer to their findings so long as they take a permissible
view of the evidence.” DeJoria, 935 F.3d at 391.
                                       V.
      As stated herein, we find no reversible error in the district court rulings
challenged on appeal. Accordingly, we AFFIRM.




                                       29
