     Case: 13-60302      Document: 00512580657         Page: 1    Date Filed: 04/01/2014




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

                                                                                     FILED
                                      No. 13-60302                                April 1, 2014
                                                                                Lyle W. Cayce
RODNEY MAYES,                                                                        Clerk
                                                 Plaintiff – Appellant,
v.

MICHAEL KOLLMAN; KOHLER TRANSPORT, INCORPORATED,

                                                 Defendants – Appellees


JERAMIE HICKS,
                                                 Plaintiff – Appellant,
v.

MICHAEL KOLLMAN; KOHLER TRANSPORT, INCORPORATED,

                                                 Defendants – Appellees



               Appeal from the United States District Court for the
                         Southern District of Mississippi
                         USDC 3:11-CV-96; 3:11-CV-97


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       In this case, Appellants sued Appellees in district court for damages
resulting from a vehicular collision. After a trial, the jury rendered a verdict


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-60302
and found that Appellees were not at fault for Appellants’ injuries. Appellants
now challenge a number of the district court’s rulings on appeal. In Appellants’
view, the district court improperly excluded testimony favorable to Appellants
and allowed prejudicial questions and comments by Appellees’ counsel
throughout the trial.     For the reasons set forth below, we reject each of
Appellants’ arguments and affirm the district court’s judgment.
                                        I.
      Appellants and Appellees were involved in a vehicular collision, “a T-
bone wreck,” at an intersection with a traffic light. When the parties’ vehicles
collided, Appellee Kollman was driving west into the intersection in a semi-
trailer truck. Appellant Hicks was driving north into the intersection in a
smaller car, and Appellant Mayes was in the front seat on the passenger’s side.
During trial, the jury heard conflicting testimony from both Appellants and
from Appellee Kollman as to which vehicle entered the intersection against a
red light. After Appellants had testified, Appellees’ counsel was permitted to
cross-examine them about their drug use and criminal history.
      The jury also heard testimony from a police officer who was present at
the scene of the collision, Officer Nattyo Gray. Because Officer Gray was
incarcerated for unrelated reasons at the time of the trial in this case, the jury
was shown a videotape of Officer Gray’s deposition. Pursuant to Appellees’
objection, however, the district court struck certain portions of Officer Gray’s
testimony and ordered that those portions of the videotape be redacted. In
particular, the district court struck Officer Gray’s testimony regarding the
functioning of traffic signals “triggered by . . . weight sensors” and the
“sequence” that guides the traffic lights around the intersection where the
parties’ vehicles collided. The district court also struck parts of Officer Gray’s
testimony regarding the statements made by Appellants and Appellee Kollman
after the accident.
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                                    No. 13-60302
      The district court did, however, admit Officer Gray’s testimony regarding
a statement made by Appellee Kollman about his failure to see the traffic light
as he entered the intersection: “He said he didn’t see the light? Yes, sir.” The
district court also allowed the jury to hear Officer Gray’s eye-witness testimony
that, just prior to the accident, all westbound traffic “had stopped . . . [e]xcept
for the 18-wheeler” and “[t]he only thing that was moving was the 18-wheeler
in the far left lane.”
      After Officer Gray’s videotaped deposition had been presented,
Appellants called an expert witness to testify regarding Appellants’ medical
expenses. During cross-examination, counsel for Appellees asked the expert
witness about the possibility that Medicare or Medicaid might pay for certain
of Appellants’ medical expenses resulting from the collision.              Counsel for
Appellees also asked the medical expert whether Appellants’ attorney was
making decisions with respect to Appellants’ medical treatment and whether
Appellants’ attorney “sends you more or less than 10 patients a year.” The
expert replied, “Yes, there are more than 10 patients that have [the attorney’s]
name on it.”
      Later, during closing argument, counsel for Appellees stated that “you
can’t believe a word [Appellant Mayes] says” because he is “what’s wrong with
this society. He is a convicted drug dealer. A convicted drug dealer.” Then,
with reference to Appellants’ attorney, counsel for Appellees stated: “That’s
what it’s all about is money. You mean I get hit by an 18-wheeler, oh, it’s cash
time. . . . He advertises . . . . Well, they’re always advertising, Let’s go after the
big trucks.” 1



      1 During voir dire of the jury pool, there were also brief remarks by both parties’
attorneys about Appellants’ attorney’s televised advertising. First, Appellants’ attorney
himself asked the jury pool: “Does anybody have any adverse feeling toward me because I

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                                       No. 13-60302
       After closing arguments were concluded, the jury deliberated and
returned a verdict finding that Appellees had no liability for Appellants’
injuries. Appellants then filed a motion for judgment notwithstanding the
verdict and a motion for a new trial. The district court denied the motions, and
this appeal followed.
                                             II.
       We review a district court’s evidentiary rulings for abuse of discretion. 2
A district court abuses its discretion by basing its ruling on an erroneous view
of the law or a clearly erroneous assessment of the evidence. 3 Where we find
an abuse of discretion in admitting or excluding evidence, we “review the error
under the harmless error doctrine, affirming the judgment, unless the ruling
affected substantial rights of the complaining party.” 4
                                             III.
       Initially, Appellants challenge the district court’s decision to exclude a
number of different portions of Officer Gray’s videotaped deposition. None of
these challenges can succeed, however.
       First, Appellants appear to misunderstand a critical section of the
record. Appellants argue that the district court was wrong to exclude Officer
Gray’s testimony about Appellee Kollman’s statement that he “didn’t see the
light.” Appellants argue that this testimony should not have been redacted—
but, in fact, the district court did not redact this testimony. As the district



advertise?” and “Is there anybody that couldn’t give me a fair shake or give my clients a fair
shake because I advertise?” Later, when asking his own questions of the jury pool, Appellees’
attorney asked whether those same advertisements “cause any of you to lean towards [his]
client as opposed to my clients? So the fact that I’m not a TV celebrity, you won’t hold that
against me. Is that right?”
        2 United States v. Miller, 520 F.3d 504, 510 (5th Cir. 2008).
        3 Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
        4 Id. (citations omitted).



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                                      No. 13-60302
court twice explained during the proceedings, this testimony contained an
opposing party’s admission, and therefore qualified for a hearsay exception
under Rule 801(d)(2)(A) of the Federal Rules of Evidence. 5 Accordingly, this
testimony was deemed admissible and shared with the jury. Appellants’ first
challenge must therefore be rejected.
       Second, Appellants challenge the district court’s decision to exclude
portions of Officer Gray’s testimony relating to the functioning of traffic signals
“triggered by . . . weight sensors” and the “sequence” that guides the traffic
lights around the intersection where the parties’ vehicles collided. But as the
district court explained, Officer Gray was “not an expert witness” and therefore
was not qualified to give opinion testimony on this technical subject. Because
“[e]xpert evidence can be both powerful and quite misleading,” a trial court
“exercises more control over experts than over lay witnesses” under Rule 702. 6
The trial court exercises latitude particularly in determining “whether or not
[an] expert’s relevant testimony is reliable” where a witness seeks to give
opinion on “‘technical,’ or ‘other specialized’ matters.” 7            In our view, the
functioning of a traffic light sequence is indeed a technical matter.                   But
Appellants have given us no reason to believe that the district court abused its
discretion in concluding that Officer Gray lacked the qualifications to testify
on this subject. Accordingly, Appellants’ second challenge also cannot succeed.
       Finally, Appellants argue that the district court should not have
excluded (1) Officer Gray’s recollections about the parties’ statements after the



       5 See Turner v. Upton Cnty., Tex., 967 F.2d 181, 186 (5th Cir. 1992); see also Cruz v.
Aramark Servs., Inc., 213 F. App’x 329, 333 (5th Cir. 2007).
       6 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993).
       7 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 152 (1999) (quoting Fed. R.

Evid. 702) (emphasis omitted); see also Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th
Cir. 2006).

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                                        No. 13-60302
collision and (2) Officer Gray’s recollection that Appellees’ vehicle entered the
intersection before the other westbound traffic. But whether or not the district
court abused its discretion by redacting this testimony, Appellants’ argument
must be rejected.         All of this testimony was cumulative with admitted
testimony and, as this court has held in several previous cases, “[t]he exclusion
of cumulative testimony” constitutes harmless error. 8
       As was demonstrated by the parties’ testimony at trial, each party
thought that they had the green light when they entered the intersection. This
testimony matched Officer Gray’s recollection of the parties’ statements
immediately after the collision. The district court also allowed the jury to hear
a portion of the videotaped deposition where Officer Gray explained that, just
prior to the accident, all westbound traffic “had stopped . . . [e]xcept for the 18-
wheeler” and “[t]he only thing that was moving was the 18-wheeler in the far
left lane.” Had the jury been allowed to hear other portions of the tape where
Officer Gray repeated this observation, such testimony would have been
duplicative. Accordingly, even if any of these redactions constituted an abuse
of the district court’s discretion, reversal is not warranted because the
redaction of cumulative testimony does not affect a party’s substantial rights
and is not a basis for reversal. 9
                                              IV.
       Appellants also argue that the district court abused its discretion by
permitting a number of arguably inflammatory and prejudicial comments to


       8 Sanford v. Johns-Manville Sales Corp., 923 F.2d 1142, 1148 (5th Cir. 1991); see also
Contogouris v. Pac. W. Res., L.L.C., 12-30870, 2013 WL 6623552, at *5 (5th Cir. Dec. 17, 2013)
(“[A]ny error in refusing to admit the e-mails was harmless, as the accusations in the e-mails
were merely cumulative of other evidence presented to the jury.”); Reilly v. TXU Bus. Servs.
Co., 485 F. App’x 731, 735 (5th Cir. 2012) (“Therefore, even if the district court erred in
excluding testimony . . . , it did not affect [the appellant’s] substantial rights because it was
cumulative of other testimony.”).
       9 See Sanford, 923 F.2d at 1148; Contogouris, 2013 WL 6623552, at *5.

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                                        No. 13-60302
be made by Appellees’ attorney during trial.                  None of these challenges,
however, are persuasive.
      First, Appellant Hicks—the driver of Appellants’ car—was asked on
cross-examination whether he was smoking marijuana on the day of the
collision, which he denied. Counsel for Appellees then impeached Appellant
Hicks with a prior statement that he had made to a nurse that, in fact, he
smokes marijuana “every day.” Because “every day” necessarily includes the
day of the collision, this statement was relevant to whether the driver was or
was not driving under the influence of marijuana on that day. It was therefore
admissible as a relevant party admission under Rule 801(d)(2)(A). 10
Accordingly, the district court did not abuse its discretion by permitting the
question regarding this prior statement.
      Second, Appellant Mayes was asked on cross-examination to confirm his
criminal history of drug felonies, including possession with intent to distribute.
Under Rule 609(a)(1), evidence of such a conviction “must be admitted, subject
to Rule 403” for the purpose of impeaching a witness. 11 As we have previously
held in an unpublished case, Eugene v. Mormac Marine Transport, Inc., 48 F.3d
529, at *2 (5th Cir. 1995), where “[t]he resolution of [a] case depended largely
on [a party’s] credibility,” the impeachment value of a recent drug conviction
was “significant” and was “not sufficiently outweighed by the potential for
prejudice to justify exclusion.” In the present case, therefore, the district court
did not abuse its discretion by permitting questions about Appellant Mayes’
drug convictions or counsel’s argument that “you can’t believe a word
[Appellant Mayes] says” because he is “a convicted drug dealer.”
      Third, Appellants argue that counsel for Appellees prejudicially



      10   See Turner, 967 F.2d at 186; see also Cruz, 213 F. App’x at 333.
      11   See United States v. Jefferson, 623 F.3d 227, 234 n.10 (5th Cir. 2010).
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                                       No. 13-60302
described Appellants’ attorney during closing argument as an attorney who is
“always advertising” and telling his clients that a vehicular collision is “cash
time.” Indeed, it is highly inappropriate for a lawyer to make personal attacks
on opposing counsel during any stage of litigation. 12                     Whether or not
Appellants’ attorney chooses to advertise to promote his practice is obviously
irrelevant to Appellees’ possible liability for the injuries that Appellants
suffered during the collision.         Remarks such as those made by Appellees’
counsel certainly have the potential to be prejudicial or inflammatory.
However, as this court held in United States v. Hernandez-Guevara, 162 F.3d
863, 874 (5th Cir. 1998), we owe “some deference to the district court’s
determination regarding the prejudicial or inflammatory nature” of comments
that attorneys make during closing argument. Having considered each of the
very brief comments made by Appellees’ counsel during closing argument in
light of the entire trial record, we do not find that these remarks rose to the
level of harmful error in the present case. 13



       12  See United States v. Young, 470 U.S. 1, 9 (1985) (observing that “inflammatory
attacks on the opposing advocate” have “no place in the administration of justice and should
neither be permitted nor rewarded; a trial judge should deal promptly with any breach [of
this rule] by either counsel”); Ransmeier v. Mariani, 718 F.3d 64, 68 (2d Cir. 2013) (describing
“ad hominem attacks on opposing counsel” as “offensive” and as a potential basis for
sanctions); Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1308 (11th Cir. 2002) (per
curiam) (“We conclude that an attorney who submits . . . ad hominem attacks directed at
opposing counsel is subject to sanction under the court’s inherent power to oversee attorneys
practicing before it.”).
        13 Likewise, we find no basis for reversal resulting from the brief discussion of the

attorney’s televised advertisements during voir dire of the jury pool. In general, the trial
court has broad discretion over the scope of voir dire under Rule 47 of the Federal Rules of
Civil Procedure. Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 257 (5th Cir. 1985);
see also Perry v. Wal-Mart Stores, Inc., 210 F.3d 369, at *3-4 (5th Cir. 2000) (unpublished).
In the present case, the district court ruled even-handedly that advertising was “a legitimate
issue for voir dire,” so long as neither side “cast[s] aspersions,” because prospective jurors’
thoughts on advertising attorneys “could be favorable or unfavorable.” Accordingly,
Appellants have failed to demonstrate that the district court abused its discretion during voir
dire of the jury pool.

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                                      No. 13-60302
       Finally, Appellants argue that the jury was improperly exposed to
comments by Appellees’ counsel regarding “collateral sources” of money to pay
Appellants’ medical expenses. That is, counsel for Appellees asked witnesses
whether Medicaid, Medicare, or Appellants’ own attorney was already paying
or could possibly pay Appellants’ medical expenses.               In some cases, such
comments and questions—if relied upon by a finder of fact during a calculation
of damages—may well violate the “collateral-source rule” of Mississippi tort
law. Under this rule, “a tortfeasor cannot use the moneys of others . . . to
reduce the cost of its own wrongdoing.” 14
       But whether or not the district court abused its discretion with respect
to this evidence, Appellants have not demonstrated how this evidence affected
the parties’ substantial rights in this case. Here, because the jury found that
Appellees were not liable for Appellants’ injuries, the jury was never required
to calculate damages. The jury therefore never engaged in the mitigation of
damages that is prohibited by Mississippi tort law. As for the jury’s conclusion
regarding Appellees’ lack of liability, Appellants do not explain how that
conclusion was affected by the questions regarding Medicaid, Medicare, or
other sources of payment for Appellants’ medical expenses. In the absence of
any such explanation, therefore, Mississippi’s collateral-source rule provides
no basis to reverse the district court.
       Accordingly, because none of the arguably inflammatory comments and
questions by Appellees’ attorney gave rise to harmful error, the district court’s
judgment must be upheld. 15


       14 See McGee v. River Region Med. Ctr., 59 So. 3d 575, 581 (Miss. 2011) (citation and
internal quotation marks omitted); Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135, 1139
(Miss. 2002).
       15 Appellants have also suggested several times that the district court erred by

denying Appellants’ motion for judgment notwithstanding the verdict and motion for a new

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                                       No. 13-60302
                                              V.
       For the reasons set forth above, the district court’s judgment is
AFFIRMED.
       AFFIRMED.




trial. As formulated by Appellants, however, this is not an independent argument based on
a verdict contrary to “the great weight of the evidence” that was actually presented to the
jury. See Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 497 (5th Cir. 2002). Rather, Appellants
suggest that these post-trial motions should have been granted based on the record that
would have existed had the district court’s other evidentiary rulings been correct. We have,
however, upheld all of the district court’s evidentiary rulings. To the extent that Appellants
intended to raise any other challenge to the denial of their post-trial motions, the failure to
brief any supporting argument constitutes an abandonment of this challenge. Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also United States v. King, 521 F. App’x 350,
351 (5th Cir. 2013); Wilburn v. Town of Crawford, 244 F.3d 137 (5th Cir. 2000) (per curiam).
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