                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1228


MICHAEL LEWIS SCOTT,

                Plaintiff - Appellant,

          v.

WATSONTOWN TRUCKING CO. INC.; WILLIAM A. MILLER, III,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    David Novak, Magistrate
Judge. (3:12-cv-00176-DJN)


Submitted:   June 17, 2013                 Decided:   July 18, 2013


Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


John R. Garza, Bradley N. Kehr, GARZA, REGAN & ASSOCIATES, P.C.,
Rockville, Maryland, for Appellant.    John K. Messersmith, IV,
James H. Revere, III, KALBAUGH, PFUND & MESSERSMITH, P.C.,
Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Michael       Lewis     Scott       brought         negligence       claims      in     the

district court against Watsontown Trucking Company (“Watsontown

Trucking”) and William A. Miller (collectively, “Defendants”).

In    his     complaint,          Scott    alleged          that       Miller’s       negligent

operation      of     a    Watsontown         Trucking       vehicle       resulted      in     a

collision     with        Scott    in   which       Scott    suffered       injuries.          At

trial,      Scott    failed       to    testify      on    his     own    behalf,      and    the

district      court       provided      the    jury       with     a     “missing      witness”

instruction,        over     Scott’s      objection. 1             The    jury    returned      a

verdict of no liability, and after denying Scott’s motion for a

new   trial,    the       district      court       entered      judgment        in   favor    of

Defendants.         Scott now appeals that judgment.                     For the following

reasons, we affirm.



                                               I.

      Although the parties dispute many of the material facts in

this case, it is undisputed that on July 20, 2010, Miller, a

Watsontown Trucking employee, was operating a tractor trailer




      1
       By the parties’ consent, a magistrate judge presided over
all aspects of this matter.    See 28 U.S.C. § 636(c)(1).    All
references to “the district court” in this opinion refer to the
magistrate judge.



                                               2
owned by Watsontown Trucking. 2           As Miller was making a left turn

from Broad Street onto Parham Road in Richmond, Virginia, he

collided with a motorcycle driven by Scott, who was proceeding

southbound on Broad Street.             Scott suffered personal injuries as

a result of the accident.                As the district court succinctly

explained, the dispute at trial “boil[ed] down to whether . . .

Miller had a green light when he turned left from Broad Street

onto       Parham    Road   and   if    not,   whether   [Scott]     acted    with

contributory negligence.”          (J.A. 606.)

        Scott filed a complaint against Defendants in the United

States District Court for the Eastern District of Virginia. 3                   In

his complaint, Scott brought various negligence claims arising

out of the vehicle accident and sought damages.                      Miller and

Watsontown Trucking answered, and the case proceeded to trial by

jury.

       Prior    to    trial,   Scott,    believing   that   Miller    would   not

testify, requested that the court provide the jury with Virginia

Model Jury Instruction Civil No. 2.080, which would permit the



       2
       Based on the jury’s verdict, we view the facts in the
light most favorable to the prevailing party, Defendants.     See
United States v. Cone, 714 F.3d 197, 201 n.1 (4th Cir. 2013).
       3
       Because the parties to the action were diverse and the
amount in controversy exceeded $75,000, the district court
properly exercised diversity jurisdiction over Scott’s personal
injury claim. See 28 U.S.C. § 1332.



                                          3
jury to infer from the unexplained failure to call an important

witness that the witness’ testimony was not favorable to the

party who failed to call the witness (referred to hereinafter as

the “missing witness” instruction).                   Although the court denied

the request, Miller ultimately testified at trial.

       Also prior to trial, Scott’s counsel tendered witness lists

to the court that indicated Scott would be called as a witness,

and    the   district      court    itself       labored   under   the   belief   that

Scott would testify at trial.                Only near the end of trial did

counsel for Scott finally inform the court that Scott would not

be taking the witness stand.                Indeed, Scott never even appeared

in the courtroom during the proceedings.

       During     trial,    Scott    (through       counsel)   elicited      testimony

from       one        of   Scott’s        physicians,       Dr.     Steven     Macedo

(“Dr. Macedo”), who averred that he advised Scott not to attend

the trial because protracted sitting would cause his chronic

pain (as a result of injuries incurred during the collision in

question)        to   “spike.”      Dr.    Macedo    did   not,    however,    explain

whether he advised Scott not to testify, or otherwise opine on

the advisability of Scott testifying at trial. 4

       4
       Indeed, Scott was deposed prior to trial, and there is no
indication in the record that he was unable to sit for the
length of his deposition.    Scott did not introduce any portion
of the deposition into evidence, and the contents are only in
the record pursuant to a post-trial order of the district court.


                                             4
      On   learning     that    Scott   would   not    testify,    the     district

court asked counsel for Scott whether counsel would be able to

accept a subpoena on Scott’s behalf, compelling him to testify

the   next    day.      Counsel     indicated   that    he   could    not    accept

service of a subpoena, and that in any event, a subpoena would

be untimely pursuant to the local rules of the Eastern District

of Virginia.

      When Scott failed to testify or make himself amenable to a

subpoena, Defendants requested that the jury be given the same

missing witness instruction which Scott had proposed earlier.

The district court initially declined to give the instruction,

but sua sponte reconsidered its decision that evening.                     Prior to

the district court’s charge conference, the court provided the

parties      with    draft   jury   instructions,      including     the    missing

witness instruction.           Scott objected to the instruction, which

was overruled on the basis that Scott offered evidence about his

recollection of the accident and, by calling Dr. Macedo, Scott

placed his ability to attend the trial in controversy.                          The

court therefore gave the following instruction in charging the

jury:

      Let’s talk . . . about the unexplained failure to
      produce an important witness.    If you believe that a
      party,   without  explanation,   failed  to   call   an
      available witness who has knowledge of necessary and
      material   facts,  you   may   presume  that   witness’



                                         5
     testimony would have been unfavorable to the party who
     failed to call the witness. 5

(J.A. 382.)

     The jury returned a special verdict, specifically finding

that Scott failed to prove by a preponderance of the evidence

that Miller was negligent.           The jury never reached the question,

therefore, of whether Scott was contributorily negligent, and

never considered damages.

     Scott then moved for a new trial pursuant to Federal Rule

of Civil Procedure 59.        The district court held a hearing on the

motion     before   denying     it   by        written     opinion.     The    court

concluded    that   Scott,    who    had       initially    requested   a     missing

witness instruction as to Miller, could not later object when

the court gave an identical instruction after Scott failed to

testify.      Moreover,   the    court         expressed    considerable      concern

that it had been misled by “gamesmanship” on the part of Scott’s

counsel, and again observed that Scott had placed the matter of

his absence in controversy by introducing testimony from Dr.

Macedo.    (J.A. 614.)

     The court then entered judgment in favor of Defendants.

Scott noted a timely appeal, and we have jurisdiction pursuant

to 28 U.S.C. § 1291.

     5
        The district court’s missing witness instruction                           is
identical to Virginia Model Jury Instruction Civil No. 2.080.



                                           6
                                                 II.

       Scott raises myriad issues on appeal, but at bottom, he

simply assigns error to the district court’s decision to give a

missing witness instruction, and its subsequent decision denying

Scott’s motion for a new trial.                          Finding no error in either

respect, we affirm.

       We    review          the   court’s       jury    instructions      for     abuse   of

discretion.            See A Helping Hand, LLC v. Baltimore Cnty., Md.,

515 F.3d 356, 370 (4th Cir. 2008).                         Of course, “[a]n error of

law constitutes an abuse of discretion.”                            Id.     The “judgment

will be reversed for error in jury instructions,” however, “only

if the error is determined to have been prejudicial, based on a

review      of     the       record   as     a    whole.”      Abraham       v.    Cnty.   of

Greenville, S.C., 237 F.3d 386, 393 (4th Cir. 2001) (quotation

marks omitted).              Similarly, we review the denial of a motion for

a new trial under Rule 59 for abuse of discretion.                               Robinson v.

Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009).



                                                 III.

       In this diversity action, we apply the substantive law of

the forum state, Virginia.                   See Erie R.R. Co. v. Tompkins, 304

U.S.   64,       78    (1938).          Before        considering   whether       the   legal

elements         for     a    missing    witness        instruction       were    met   under

                                                  7
Virginia    law,     we   observe   at   the       outset   that    “[b]ecause    we

recognize that an aura of gamesmanship frequently accompanies

requests for missing witness charges, we afford district judges

considerable discretion in deciding when they should and should

not be given.”        United States v. Gaskin, 364 F.3d 438, 463 (2d

Cir.    2004)   (internal    citation        and   quotation   marks    omitted);

accord VRCompliance LLC v. HomeAway, Inc., 715 F.3d 570, 575

(4th Cir. 2013) (“[A]ppellants’ procedural gamesmanship renders

us     unable   to    say    that    the      district      court     abused     its

discretion.”).

       In this case, we find significant that the district court

was    confronted    with   considerable       gamesmanship        throughout    the

course of the litigation below.            As the court observed,

       the gamesmanship here was not limited only to [Scott]
       seeking the instruction, then objecting to the same
       instruction when Defendants sought it. . . . [Scott’s]
       counsel led the Court to believe that [Scott] was
       going to testify and, importantly, gained a litigation
       advantage from that misdirection. And after [Scott’s]
       counsel finally made clear that [Scott] would not
       testify and defense counsel requested the missing
       witness instruction, the Court sought to cure the
       situation by inquiring whether [Scott’s] counsel would
       accept service of a defense subpoena for [Scott’s]
       testimony the next day, which [Scott’s] counsel
       rejected.   [Scott’s] counsel also indicated that a
       request for a subpoena at that time was untimely,
       which was accurate. Consequently, [Scott’s] challenge
       to the missing witness instruction must be viewed
       within the context of his counsel’s gamesmanship.

(J.A. 614 (internal citations omitted).)



                                         8
       In this case, the able magistrate judge who presided over

the trial was able to evaluate, first hand, Scott’s counsel’s

actions, and fashion an appropriate remedy.                              The court noted

that    Scott’s    counsel      asked          for,    and    later   objected     to,      the

missing    witness     instruction,             “misdirect[ed]”         the   court    as    to

whether Scott himself would testify, and thwarted the court’s

initial attempts to amicably resolve the missing witness dispute

by     subpoenaing      Scott        to        testify.         (Id.)         Under      these

circumstances, we cannot say that the district court abused its

considerable        discretion            in         giving    the      missing       witness

instruction.

       Out of an abundance of caution, however, we will briefly

analyze whether, as a matter of Virginia law, the elements were

met for the giving of a missing witness instruction.                                  As the

Supreme Court of Virginia has explained, the missing witness

instruction       is   a   “statement            of    the    settled     rule    that      the

unexplained failure of a party to call an available material

witness    gives       rise     to        an     inference,      sometimes        called     a

presumption, that the testimony of such absent witness would be

adverse to such party.”              Neeley v. Johnson, 211 S.E.2d 100, 107

(Va. 1975).       The missing witness instruction has two elements:

availability and materiality.                   See id.

       Availability may be translated as the power of the
       party to produce.   Probable availability rather than
       actual availability may be sufficient depending upon

                                                 9
     the state of the evidence in each case.   The lack of
     power or nonavailability may be due to the person's
     absence from the jurisdiction, his illness, the
     party’s ignorance of the whereabouts of the witness,
     the person's testimony being inadmissible, or other
     like   circumstances.     “Available” is  equated  to
     “control” in some cases, that is, the witness is
     available if he “is in such relationship with the
     party that it is likely that his presence could be
     procured.”   Nonavailability may be explained and the
     inference, or presumption, rebutted when the litigant
     explains the absence.

Id. (internal citations omitted).

     Scott      first   argues      that    the    district    court    improperly

placed the burden on him to show that he was unavailable and his

testimony immaterial. 6       Rather, he argues, the burden should have

been placed on Defendants.

     Our     review     of    the        record,   however,     belies     Scott’s

assertion.      We are unable to identify where in the record the

court improperly assigned the burden to show availability and

materiality.      The discussion cited in Scott’s brief contains no

mention    of   burdens,     and    we    are   unable   to   discern   where   any

alleged error occurred.             More to the point, however, to the




     6
       Scott argues, as a threshold matter, that this Court
should abrogate or abandon the missing witness instruction as no
longer appropriate.    As this argument was not raised in the
district court, it is deemed waived and we will not consider it
for the first time in this appeal. See Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993) (issues raised for first time on
appeal are considered waived absent exceptional circumstances).



                                           10
extent     that    the    district       court       did    misallocate         the     burdens,

Scott cannot demonstrate prejudice.

      The    allocation         of    burdens       is   subject        to   harmless      error

review.         See Belk v. Charlotte-Mecklenburg Bd. of Educ., 269

F.3d 305, 328 (4th Cir. 2001) (en banc) (“[B]ecause the district

court’s findings, which were based on the court’s weighing of

all   of    the   relevant        evidence      presented         at    trial,    would       have

yielded the same conclusion under a proper assignment of the

burden of proof, any error with regard to the burden of proof is

harmless.”).            For    the    reasons       explained      below,       the     district

court had ample evidence that Scott was available as a witness

only to his own cause, and his testimony was material.

      It is clear that, as the plaintiff, Scott was available to

testify     on    his    own     behalf.        See      Neeley,       211     S.E.2d    at    107

(“[T]he witness is available if he ‘is in such relationship with

the     party     that     it    is    likely        that    his       presence       could    be

procured.’”).           As plaintiff, it was “likely” that Scott could

have procured his own presence.                     The only evidence in the record

regarding        Scott’s        availability         came    from        Dr.     Macedo,      who

testified on the advisability of Scott’s continued attendance at

trial.      Dr. Macedo never discussed whether Scott could testify.

Indeed, the record suggests that Scott was deposed for several

hours      leading       up      to    trial        with     no        apparent       concerns.

Importantly, Scott himself concedes that he was available to

                                               11
testify   when      he    states       on    appeal    that    “[h]ad    Plaintiff      been

aware that the missing witness instruction would be given, he

would certainly have testified.”                      (Opening Br. of Appellant at

30.)

       Scott argues, however, that he was similarly available to

Defendants.      He observes that he appeared on Defendants’ witness

list,    and   would       have    been          available    had   he    been   properly

subpoenaed.      But this contention ignores the fact that Scott led

the    court   and       Defendants         to   believe     that   he   would    in    fact

testify until well after the deadline for obtaining a timely

subpoena.      The district court even went so far as to exclaim

that “never in my life did I think that the Plaintiff was not

going to be testifying in this case.”                        (J.A. 332.)     Under these

circumstances, it strains credulity to suggest that Scott was

equally available to Defendants.

       Similarly, it is clear that Scott’s testimony would have

been material.           Scott suggests in his brief that his testimony

was not material for two reasons: that he suffered from amnesia

and    would   be    unable       to    recall        the    accident;    and    that    his

testimony would have been merely cumulative because the court

heard from other eyewitnesses to the accident.                           We find neither

reason persuasive.

       Scott’s claim that he suffered from amnesia is belied by

even a cursory review of the record.                         In his deposition (which

                                                 12
was    only    made   part    of    the     record     by    order       of    the     district

court), Scott testified at length as to the events leading up

to,    and    including      the    accident.          And    during          trial,      one    of

Scott’s       treating    physicians        opined     that     Scott         had    at    least

“partial recollection” of the accident, and that “[i]f he had

amnesia for any period of time, it was extremely short.”                                   (J.A.

314.)     In other words, there was ample evidence from which the

district court could conclude that Scott had sufficient memory

that    he    could   testify       to    at   least    some       of    the    events      that

transpired when the accident occurred.

       We are similarly not persuaded that Scott’s testimony would

have    been    merely    cumulative,          especially      in       the    context      of    a

trial about whether Scott was contributorily negligent.                                         The

district court observed at length the myriad subjects over which

Scott, and Scott alone, could testify.                         These include Scott’s

training and experience with a motorcycle, Scott’s admission (in

his deposition) that he stalled the motorcycle a few blocks from

the     accident,     and     his        familiarity        with    the        intersection.

Moreover, only Scott could provide evidence as to the ongoing

significance of the injuries to him, thus laying a foundation

for damages.

       Critical, moreover, to our discussion of materiality is the

district court’s analysis of the inconsistencies between Scott’s



                                               13
deposition     testimony      and     other       evidence      adduced     by     Scott

throughout the trial.

     For example, [Scott] testified that he did not stop at
     the intersection and intended to keep moving through
     the intersection when the accident occurred. Yet, two
     of [Scott’s] eyewitnesses . . . testified that
     Plaintiff stopped at the intersection before he
     entered it.   Indeed, contrary to [Scott’s] testimony
     during the deposition, the parties stipulated that
     “prior to the incident, Mr. Scott was stopped at the
     white cross line, slash, stop bar in the middle lane
     of West Broad Street.”      Perhaps this significant
     inconsistency explains [Scott’s] decision not to
     testify.

(J.A. 624 (internal citations omitted).)

     In     short,    there     can   be        little    doubt    that    Scott       was

available     to     testify,       and    would         have   provided        material

testimony.         Accordingly,     the    district        court   did    not    err    in

giving the missing witness instruction, and similarly did not

err in denying Scott’s motion for a new trial. 7




     7
       Scott raises two additional claims of error that we will
briefly dispense with. He asserts first that the district court
erred by reversing its decision not to give a missing witness
instruction. But Scott has not identified how he was prejudiced
in any way by the court’s change of heart.    In the absence of
any prejudice, we decline to say that the court committed
reversible error.

     Scott also claims that the court erred by excluding certain
medical evidence.     Again, however, Scott cannot demonstrate
prejudice.   The jury concluded specifically that the Defendants
were not negligent.    It thus never considered damages—the only
issue to which the medical evidence would have been germane.



                                           14
                                      IV.

     For the foregoing reasons, the judgment of the district

court is affirmed.       We dispense with oral argument because the

facts   and   legal    contentions    are   adequately   presented    in   the

materials     before   this   court   and   argument   would   not   aid   the

decisional process.



                                                                     AFFIRMED




                                      15
