                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-2244



TIMOTHY HAMILTON HELSABECK,

                                              Plaintiff - Appellant,

           versus


MICHAEL A. FABYANIC, Individually and as a
Deputy of the Sheriff of Frederick County,
Virginia,

                                               Defendant - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CA-00-105-GEC)


Argued:   November 30, 2005                 Decided:   March 30, 2006


Before MICHAEL and DUNCAN, Circuit Judges, and Walter D. KELLEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Steven Mark Garver, GARVER LAW OFFICES, P.C., Reston,
Virginia, for Appellant. Carlene Booth Johnson, PERRY & WINDELS,
Dillwyn, Virginia, for Appellee.     ON BRIEF: Deborah E. Mayer,
GARVER LAW OFFICES, P.C., Reston, Virginia; E. Eugene Gunter,
Winchester, Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

            Deputy Sheriff Michael Fabyanic shot Timothy Helsabeck in

the back while trying to arrest him for possession of marijuana.

Helsabeck brought this lawsuit against Fabyanic, asserting a claim

under 42 U.S.C. § 1983 for use of excessive force and a claim under

state law for battery.         After a four day trial, a jury found that

Fabyanic    used    excessive       force,    but   that    he    was    entitled    to

qualified immunity.         The jury also found that Fabyanic did not

commit battery upon Helsabeck. The district court entered judgment

for Fabyanic, and Helsabeck appeals.                Helsabeck argues that the

district    court    made     several    errors     at     trial,   including        the

submission of the qualified immunity issue to the jury. Finding no

reversible error, we affirm.



                                         I.

            On the evening of December 29, 1998, Helsabeck was

driving his pickup truck on Route 37, the western by-pass around

Winchester, Virginia.           Fabyanic, a Frederick County Sheriff’s

Deputy,    was   driving      his   cruiser    behind      Helsabeck.         Fabyanic

observed    Helsabeck      driving     erratically       and     pulled      him   over.

Fabyanic approached Helsabeck’s pickup on foot and asked to see his

driver’s    license     and    registration.          According         to   Fabyanic,

Helsabeck appeared agitated and his hands were shaking.                       Fabyanic

ordered Helsabeck to exit and stand in front of the pickup so that


                                         2
Fabyanic could watch him while he (Fabyanic) ran a criminal history

check on Helsabeck.    Fabyanic then conducted field sobriety tests

on Helsabeck, placed him in the back of the cruiser, and searched

his pickup.   While conducting the search, Fabyanic learned from a

radio   dispatcher    that    Helsabeck’s    criminal   history   included

narcotics and weapons violations.           Fabyanic then found a small

amount of marijuana in the pickup.          At this point, he approached

Helsabeck, still seated in the back of the cruiser, and told him he

was placing him under arrest for possession of marijuana. Fabyanic

ordered Helsabeck to exit the cruiser and place his hands on the

cruiser’s roof.

           The parties disagree about the sequence of events that

followed. Although there is no dispute that Helsabeck and Fabyanic

made physical contact with one another and that Fabyanic shot

Helsabeck in the back, the parties offer differing versions of the

surrounding events.     Helsabeck contends he had his hands on the

roof of the car and waited to be handcuffed for what seemed to him

a long time, at least twelve seconds.           Thinking he might be in

“harms way,” he turned around.       J.A. 123.    At this point he lost

his balance because the ground where he stood was uneven and

frozen.   He tried to catch himself, but instead he hit Fabyanic

and, as a result, both men went down the slope into the ditch along

the side of the road.        As Helsabeck tried to get up on all fours

and climb the hill, Fabyanic shot him in the back.


                                     3
            Fabyanic, on the other hand, says that while he was

trying to handcuff Helsabeck, Helsabeck turned around, took a punch

at Fabyanic, grabbed Fabyanic around the waist, and drove his

shoulder into Fabyanic’s mid-section. Helsabeck then began forcing

Fabyanic backwards down the slope toward the ditch.     During this

struggle, Fabyanic claims he felt something tugging at his holster

and thought that Helsabeck was trying to grab his gun.            In

response, Fabyanic drew his gun and shot Helsabeck in the back.

            Helsabeck was severely injured by the gunshot and became

a paraplegic.    In December 2000 Helsabeck filed this suit against

Fabyanic under 42 U.S.C. § 1983, alleging that Fabyanic violated

his constitutional rights by using excessive force during the

arrest.     He also asserted a state law battery claim against

Fabyanic.    In May 2004 Fabyanic moved for summary judgment on all

claims and on the ground that he was entitled to the defense of

qualified immunity.    On June 2, 2004, the district court denied

Fabyanic’s motion, concluding that there was a genuine issue of

material fact regarding the circumstances surrounding the use of

force.

            The district court bifurcated the trial into liability

and damages phases.   The liability phase was tried before a jury on

June 14-18, 2004.      The district court made three evidentiary

rulings in connection with the trial that are at issue on appeal.

First, the district court excluded evidence offered by Helsabeck


                                  4
concerning Fabyanic’s actions during arrests of other individuals.

Second,   the   court   allowed   testimony   from   Dr.   Ashley   Tucker,

Helsabeck’s treating physician following the incident.          Dr. Tucker

testified that in the course of treating Helsabeck, Helsabeck

spontaneously stated that he had “tried to get the gun away, before

he was shot, from the police officer.”        J.A. 304.    Third, the court

allowed evidence showing that Helsabeck was convicted of felony

assault and battery in Virginia state court as a result of the

altercation with Fabyanic.        Prior to admitting evidence of the

conviction, the court warned the jury:

          The defendant’s counsel intends to ask the plaintiff
     about a state criminal proceeding, [in] which the
     plaintiff was a defendant as a result of this incident.
     And he was, indeed, convicted of a state criminal act
     because of this incident. I tell you that this testimony
     and this line of questioning should not be taken as
     evidence by you that one side, that it should not be
     deemed dispositive of the issues in this case. Indeed,
     the plaintiff’s assertions in this case and the fact of
     this earlier conviction are not necessarily mutually
     exclusive. The reason that we’re having this testimony,
     though, is to help you understand what credit, what
     measure of believability should be accorded to the
     statements of the various witnesses.     That’s for this
     purpose only. You are the judges of the facts and you
     will use this evidence, along with all the other evidence
     that is presented, in weighing these issues of
     credibility.

S.J.A. 119.     The court included an additional warning about this

evidence in its final jury instructions:

     [Y]ou heard testimony that plaintiff was convicted of
     assault and battery against the defendant. This evidence
     was admitted for the limited purpose of assisting you in
     judging the plaintiff’s credibility and in deciding
     whether or not defendant acted reasonably.       It was

                                     5
      admitted for no other purpose. I tell you specifically
      that you may not consider the evidence of plaintiff’s
      prior conviction as determinative of the facts at issue
      in this case, specifically those related to the use of
      excessive force. You and you alone are to decide the
      facts based on all the evidence presented in this trial.
      The evidence of plaintiff’s prior conviction is simply
      part of the evidence you may wish to consider.

J.A. 378.

            After the instructions were read to the jury, the jury

left the courtroom and the parties were asked whether they had

objections to the instructions as given.              Helsabeck stated that he

had only one “concern” regarding references to “proximate cause”

and “damage” in the instructions.             J.A. 386-87.        The court agreed

to address this concern by supplementing the instructions with a

cautionary     statement     to    the   jury.      The   court    then   asked    if

Helsabeck      had   any   other    objection,     and    he   responded     in   the

negative. In accordance with Helsabeck’s objection, the court also

changed the word “damage” in the jury instructions to “injury,”

presumably to clarify that Helsabeck did not need to prove damages

for the jury to find in his favor.               J.A. 461a.

            The court submitted three interrogatories to the jury.

The first interrogatory read, “Do you find from a preponderance of

the evidence that Defendant Fabyanic used excessive force during

the   arrest    of   Plaintiff     Helsabeck?”        J.A.     476.    The   second

interrogatory dealt with Fabyanic’s asserted qualified immunity

defense.       It read, “Do you find from a preponderance of the

evidence     that    Defendant      Fabyanic’s      conduct     was    objectively

                                          6
reasonable in light of the legal rules clearly established at the

time of the incident at issue in the case?”                        Id.     Finally, the

third interrogatory read, “Do you find from a preponderance of the

evidence that Defendant Fabyanic committed a battery on Plaintiff

Helsabeck under Virginia law?”                  Id.       On June 18, 2004, the jury

answered “yes” to the first two interrogatories and “no” to the

third interrogatory.

             Helsabeck subsequently moved to set aside the verdict or

alternatively for a new trial, arguing that the court erred in

submitting       the   question     of    a     qualified      immunity    (the      second

interrogatory) to the jury and in making certain evidentiary

rulings.     On August 31, 2004, the district court denied these

motions and entered judgment for Fabyanic.                            Helsabeck timely

appeals.



                                              II.

             Helsabeck       argues      that       the    district   court    erred    in

submitting       the   qualified      immunity        interrogatory       to   the   jury.

Government       officials    are     entitled        to    qualified    immunity      from

liability for civil damages to the extent that their conduct does

not violate clearly established statutory or constitutional rights

of   which   a    reasonable      person       should      have   known.       Harlow   v.

Fitzgerald, 457 U.S. 800, 818 (1982).                        To determine whether a

defendant is entitled to qualified immunity, the relevant inquiry


                                              7
is whether it would be clear to an objectively reasonable officer

that his conduct violated the right at issue.          Brown v. Gilmore,

278 F.3d 362, 367 (4th Cir. 2002).

           Because Helsabeck failed to object to submission of the

interrogatory to the jury at trial, we review for plain error.              In

re Celotex Corp., 124 F.3d 619, 630-61 (4th Cir. 1997) (citing

United States v. Olano, 507 U.S. 725 (1993)).         Under this standard

of review, we may exercise our discretion to correct an error not

raised in district court if (1) there is an error; (2) the error is

plain;   (3)   the   error   affects   substantial   rights;    and   (4)   we

determine, after examining the particulars of the case, that the

error    seriously    affects   the    fairness,   integrity,    or   public

reputation of judicial proceedings.         Id.



                                       A.

           In reviewing for plain error, the initial question is

whether an error occurred.      In Willingham v. Crooke, 412 F.3d 553,

560 (4th Cir. 2005), we held that the question of a defendant’s

entitlement to qualified immunity under a particular set of facts

must be decided by the court, not by the jury.         The district court

in the present case therefore committed error when it submitted the

qualified immunity interrogatory to the jury.




                                       8
                                  B.

             The second question is whether the error was plain.   For

the purposes of plain error review, “plain” is synonymous with

clear or obvious.     Olano, 507 U.S. at 734.   Although it is clear

that the district court committed error under Willingham, that case

was not decided until more than one year after the jury delivered

its verdict in favor of Fabyanic.        The applicable law in this

circuit was unsettled at the time of trial.          In Knussman v.

Maryland, 272 F.3d 625, 634 (4th Cir. 2001), we noted that “it is

far better for the court, not the jury, to answer the ultimate

legal question of whether a defendant is entitled to qualified

immunity.”    Because the issue was not raised by the parties in that

case, however, we had to “leave for another day the question of

whether it is ever appropriate for a jury to answer the ultimate

legal question of a defendant’s entitlement to qualified immunity.”

Id.

             The Supreme Court has not addressed whether plain error

may be noticed in cases such as this one, where the law is

unsettled at the time of trial but becomes clear on appeal.        See

United States v. David, 83 F.3d 638, 642 (4th Cir. 1996).   In David

we held that an appellate decision after trial renders an error

“plain” if “an objection at trial would have been indefensible

because of existing law, but a supervening decision prior to appeal

reverses that well-settled law, rendering [a party’s] claim clearly


                                   9
meritorious.”        Id. at 645.       In this case an objection at trial

would not have been “indefensible,” and David’s holding therefore

does not control.           In arriving at this conclusion, however, we

discussed reasons why review should not be available in cases like

this one, where applicable law is unsettled at the time of trial.

Because there was some debate about whether this discussion was

essential     to    our     holding,    see    id.    at     648-49    (Ervin,     J.,

concurring), we assume without deciding that the error in this case

was “plain.”



                                         C.

            The     third    question     is   whether       the    error    affected

Helsabeck’s        substantial       rights,   that        is,     whether    it   was

prejudicial.        Errors that actually affect the outcome of the

proceedings are prejudicial.             United States v. Hughes, 401 F.3d

540, 548 (4th Cir. 2005).              In this case, there is no way to

conclude that the error did not affect the outcome.                     The outcome

here   --   the    finding    that    Fabyanic   was   entitled        to    qualified

immunity -- can be attributed to nothing other than the error --

submission of a specific interrogatory on qualified immunity to the

jury. The error therefore affected Helsabeck’s substantial rights.




                                         10
                                       D.

           The final issue is whether the error seriously affects

the    fairness,     integrity,   or    public     reputation   of   judicial

proceedings.        We conclude that it does not, and we therefore

decline to notice this error even if it was “plain.”            Although the

constitutional violations Helsabeck alleges are significant and his

injuries extremely serious, we are satisfied with the procedural

fairness of this case.       The record contains ample documentation of

careful efforts by the parties and the court to ensure the proper

submission of issues to the jury.                Nothing in the pre-verdict

record suggests that Helsabeck did not want the jury to decide the

issue of qualified immunity.           As noted above, when the court

specifically asked the parties if they had any objections to the

jury instructions, Helsabeck, through his counsel, noted only one

“concern,”     which   had   nothing   to   do    with   qualified   immunity.

Helsabeck’s counsel asserts that he did not raise the objection at

that   point   in    trial   because   he   “vehemently”    objected   during

discussions in chambers and considered it “futile and a waste of

judicial time” to assert the objection at trial. Appellant’s

Supplemental Br. at 2-3.          He further argues that it would be

“manifestly unjust” to penalize Helsabeck for the district court’s

failure to record the objections that he raised in chambers because

he did not have control over the court reporter.             Id. at 4-5.    We

are puzzled by these arguments.         Although Helsabeck’s counsel may


                                       11
not have been able to arrange for a court reporter to be present in

chambers, he was no doubt aware that the discussions in chambers

were not being recorded.          Given the “vehemen[ce]” with which he

purportedly objected in chambers, his failure to reiterate the

objection at any point on the record is inexplicable.             Id. at 2.

As Helsabeck’s counsel surely knows, it is the duty of the parties,

not the court or the court reporter, to preserve objections on the

record for appeal. Counsel’s efforts to attribute the inadequacies

of the record to the district court and its court reporter are

unavailing.

           Furthermore, it is well-established that plain error

analysis   is   to    be   used     “sparingly”    and   to   correct   only

“particularly egregious errors.”           United States v. Young, 470 U.S.

1, 15 (1985).        Federal Rule of Criminal Procedure 52(b) gives

appellate courts the discretion to correct certain forfeited errors

in criminal cases, where a defendant’s life or liberty is at stake,

but there is no analogous statutory authority for courts to notice

plain error in civil cases, where the stakes are of a different

kind.   Accordingly, many courts have noted that the plain error

doctrine should be invoked with “extreme caution” in the civil

context.   See Celotex, 214 F.3d at 631 (citing cases).           This case

does not present the type of egregious error that calls for

correction by this court.




                                      12
                                        III.

             Helsabeck’s second argument is that the district court

abused its discretion by excluding evidence regarding Fabyanic’s

prior bad acts.     Helsabeck sought to introduce witnesses who would

have testified that Fabyanic treated them unreasonably during their

arrests in order to prove Fabyanic’s routine method of operation,

see Fed. R. Evid. 404(b), and to impeach Fabyanic’s credibility.

The court barred Helsabeck from using the evidence in his case-in-

chief and on cross examination, but allowed him to use it for

impeachment or rebuttal.          J.A. 47.     The district court did not

abuse its discretion in finding this evidence inadmissible under

Rule   404(b).      The   facts    of    the   witnesses’     cases   were   not

sufficiently similar to Helsabeck’s case to establish an operating

method on Fabyanic’s part.         See United States v. Mohr, 318 F.3d

613, 617-19 (4th Cir. 2003).



                                        IV.

           Third, Helsabeck argues that the district court should

have excluded Dr. Tucker’s testimony about Helsabeck’s statements

at the hospital because Helsabeck asserted the physician-patient

privilege.       The Federal Rules of Evidence do not recognize a

physician-patient     privilege      where,     as    here,   subject   matter

jurisdiction is based on federal law.                See Fed. R. Evid. 501.

Helsabeck nonetheless urges us to hold that the Virginia law on


                                         13
physician-patient privilege, Va. Code Ann. § 8.01-399(A), applies

here because he asserts a pendent state law battery claim.    Even if

we found the Virginia privilege rule applicable, Helsabeck waived

the privilege by putting his medical condition at issue, releasing

his medical records, and failing to object when Fabyanic submitted

Dr. Tucker’s testimony with his summary judgment motion.     See Va.

Code Ann. § 8.01-399(B).   We therefore conclude that the district

court did not err by admitting Dr. Tucker’s testimony.




                                   V.

          Fourth, Helsabeck argues that the district court abused

its   discretion   by   allowing   evidence   regarding   Helsabeck’s

underlying assault and battery conviction.      District courts have

broad discretion to admit relevant evidence if its probative value

is substantially outweighed by the danger of unfair prejudice.

Fed. R. Evid. 403. Although the evidence of Helsabeck’s underlying

conviction was arguably prejudicial to his case, we cannot say that

the district court abused its discretion in determining that the

danger of unfair prejudice did not substantially outweigh its

probative value.   Furthermore, even if admission of the conviction

was erroneous, we are satisfied that the district court’s thorough

cautionary instructions rendered any error harmless.




                                   14
                                 VI.

            Finally, Helsabeck argues that the district court erred

in giving initial jury instructions stating that Helsabeck must

prove that Fabyanic’s act was the cause of the “damage” Helsabeck

suffered.    The word “damage” was not the best choice for the jury

instructions because the trial had been bifurcated and damages were

not at issue at the time.   Upon realizing the mistake, however, the

district court agreed to give an oral cautionary statement to the

jury.   It also replaced the word “damage” with “injury” in the

written instructions given to the jury.    J.A. 461a.   If any error

was made in connection with the court’s use of the word “damage,”

the court’s rehabilitative steps rendered the error harmless.

                                 ***

            For the foregoing reasons, we find no reversible error.

The district court’s judgment for Fabyanic is therefore

                                                          AFFIRMED.




                                 15
