UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLENN EARL DAVIS,
Plaintiff-Appellee,

v.
                                                                   No. 96-1238
SIX SIXTEEN, INCORPORATED, t/a Club
Rogues; SAMUEL CHARLES HAMPTON,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-95-441)

Argued: June 3, 1997

Decided: September 12, 1997

Before WIDENER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Edward L. Breeden, III, BREEDEN, MACMILLAN &
GREEN, P.L.C., Norfolk, Virginia, for Appellants. David Marshall
Zobel, HUFF, POOLE & MAHONEY, P.C., Virginia Beach, Vir-
ginia, for Appellee. ON BRIEF: Dawn M. Peters, BREEDEN, MAC-
MILLAN & GREEN, P.L.C., Norfolk, Virginia, for Appellants.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Glenn Davis ("Davis"), a one-time professional baseball player,
brought this personal injury diversity action against Six Sixteen,
Incorporated ("Six Sixteen") and Samuel Charles Hampton
("Hampton") to recover compensatory and punitive damages for inju-
ries sustained when Hampton, a bouncer at a nightclub owned by Six
Sixteen, punched Davis in the face three times, breaking his jaw in
two places. A jury returned a verdict in favor of Davis against both
defendants, awarding Davis substantial compensatory and punitive
damages.

Six Sixteen and Hampton (hereafter collectively, for simplicity,
"Hampton") now appeal, contending that certain expert testimony was
improperly admitted; that the district judge erred in refusing to give
two of their requested jury instructions; and that the judge improperly
questioned an expert witness. We find no prejudicial error and affirm.

I.

At the time in issue Davis was a professional baseball player in the
Baltimore Orioles chain on assignment to the Rochester Redwings, a
minor league affiliate of the Orioles. On June 7, 1993, Davis and two
of his teammates, Mark Parent and Randy Ready, went to Club
Rogues, a Virginia Beach nightclub owned by Six Sixteen.

The parties' testimonial accounts of what then transpired at the
Club Rogues differ markedly. Indisputably, the trouble that led to
Davis's injury all began when Hampton and fellow bouncers were
summoned to deal with some roistering conduct by the ballplayers
outside the club just after they had left the building. Critically, defen-
dants do not contest the sufficiency of the evidence of what then
happened--when assessed under the appropriate standard--to support

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the jury's verdict. We therefore simply summarize the flatly conflict-
ing testimonial versions of what happened.

Davis's version was that Hampton attacked him while he, Davis,
was simply trying to break up an escalating exchange between Ready
and several other Club Rogues bouncers; that he had no intention of
fighting Hampton or any of the bouncers; and that he never made any
threatening moves or gestures toward Hampton. By his account, with
some supporting testimony by other eye-witnesses, Hampton initiated
the physical encounter with Davis, grabbing him as he attempted to
break up the altercation involving Ready. Critically, Davis's account
had it that as they struggled, Hampton lured him into thinking the
encounter was over by suddenly loosening his hold and looking away
as if to abandon the fray, only to then fell Davis with a "sucker
punch" to the jaw when Davis, with his guard down, looked away to
see how Ready was faring. With Davis on the ground from the force
of the sucker punch, Hampton then punched him in the face two more
times. It is undisputed that the blows struck by Hampton broke
Davis's jaw in two places, requiring it to be wired shut for four
weeks. The evidence showed that Hampton was a professional heavy-
weight boxer along with his other occupations as a bouncer and con-
struction worker.

Hampton's version was that Davis's involvement in the affray was
not as a would-be peacemaker, but as an aggressor who attacked
Hampton while he, Hampton, was trying to pull Davis away from
Ready and another bouncer. According to Hampton, the blows he
concededly struck were struck only in necessary self-defense.

Seventeen other eye-witnesses testified about different aspects of
the altercation. Some witnesses testified in support of Davis's
account, others supported that of Hampton. Following a six-day trial,
the jury simply accepted the Davis version and rejected Hampton's,
returning its substantial verdicts for Davis after around six hours of
deliberation.

On the issue of damages, the parties presented conflicting expert
witness testimony regarding income lost by Davis as a result of his
injuries. Davis's expert at trial was Talbot Smith, President of the
Houston Astros, who has 38 years of experience with professional

                    3
baseball. Smith testified that, in his opinion, Davis's lost playing time
in 1993, as a result of his injury, prevented him from signing a major
league contract for the 1994 season, and that such a contract would
have been worth approximately $1.8 million for the entire season.
This figure was then adjusted to $1,288,000 in light of the player's
strike which commenced in August 1994.

As their expert damages witness, appellants presented Richard
Wagner, former general manager of the Cincinnati Reds and the
Houston Astros. Wagner testified that, in his opinion, Davis's "declin-
ing performance" during the period 1990 to 1993, rather than his jaw
injury, was the reason Davis failed to receive a major league contract
for 1994. Again, the jury simply favored Davis's version of lost
income over that of appellants, returning verdicts for $1,517,434.86
compensatory, and $100,000 punitive damages.

This appeal followed.

II.

We first consider appellants' contention that the district court erred
in declining to give two proffered jury instructions on the liability
issue.

A.

At trial, Hampton's (hence his employer's) principal defense was
self-defense, based upon his evidence that in his encounter with
Davis, Davis, not he, was the physical aggressor. Hampton tendered
as a proposed instruction a Virginia Model Instruction defining the
right of self-defense against a battery. Such an instruction, drawing on
controlling Virginia law, makes the point that where one is sustaining
an actual battery at the hands of another--as opposed to sustaining an
assault without battery--the person subjected to the battery may stand
his ground and resist, using such force as is reasonably necessary to
repel the assailant. See Crosswhite v. Barnes , 124 S.E. 242 (Va.
1924).

The district court gave self-defense instructions, as certainly was
Hampton's due on the evidence, but declined to give the specific one

                     4
tendered by Hampton. Instead, the court charged, in two instructions,
as follows:

         Instruction No. 10

          The law protects the physical integrity of every person
         from all unnecessary and unwarranted violation or interfer-
         ence.

          Any intentional attempt or threat to inflect injury upon the
         person of another, when coupled with an apparent present
         ability to do so, and intentional display of force such as
         would give a person reason to fear or expect immediate bod-
         ily harm, constitutes an "assault." An "assault" may be com-
         mitted without actually touching or striking, or doing bodily
         harm to the person of another. However, words alone are
         never an assault.

          Any intentional use of force upon the person of another
         is a "battery." So, a touching, however slight, of the person
         of another, in a rude, insulting, or angry way, constitutes a
         "battery."

         Instruction No. 11

          Sam Hampton alleges that any act or conduct on his part
         which may have caused any injury or damage to the plaintiff
         was committed or done following an unprovoked assault by
         the plaintiff upon him. That is to say, the defendant, Sam
         Hampton, claims he acted within his lawful right of self-
         defense.

          A person upon whom an unprovoked assault or battery is
         being made, or who has reasonable ground for believing,
         and does believe, that another person is about to inflict bod-
         ily injury upon him, need not retreat, but may stand his
         ground and defend the integrity of his person; and where in
         such self-defense of his person he injures his assailant, the
         law holds there is legal justification, provided he used no

                    5
          more or no greater force or means than he in fact believed
          to be reasonably necessary, and would appear to a reason-
          able person, under like circumstances, to be necessary, in
          order to prevent bodily injury to himself.

Hampton's challenge is specifically directed at a selected portion
of Instruction 11, i.e.:

          A person upon whom an unprovoked assault or battery is
          being made, or who had reasonable grounds for believing,
          and does believe, that another person is about to inflict bod-
          ily injury upon him, need not retreat, but may stand his
          ground . . . .

The specific contention made by Hampton is that this instruction,
by importing the situation of an assault without battery, also imported
the requirement that the right of self-defense in that situation requires
a belief that the assaulter is "about to inflict bodily injury." So
instructed, the argument goes, the jury would have believed that
Hampton's defense could exonerate him only if he was both being
subjected to a battery and believed that he was threatened with bodily
injury.

That argument, focussing on one narrow portion of two inter-
related instructions, does not persuade us of any error, certainly none
having prejudicial effect. In reviewing jury instructions, we look to
the whole context in which challenged portions occur and ask only
whether, so viewed, the instructions as a whole fairly instructed the
jury on the relevant legal principles in light of the evidence before the
jury. See Nelson v. Green Ford, Inc., 788 F.2d 205, 209 (4th Cir.
1986). Here, there was evidence from which the jury could have
found preliminarily either that Davis had actually inflicted a battery
on Hampton or might at least have appeared to Hampton to be threat-
ening him with a battery--to be committing an assault--when Hamp-
ton punched him. In either circumstance, Hampton might be entitled
to defend himself, so the district court quite properly, in Instruc-
tion 10, instructed the jury that they might find either an assault or a
battery--and then accurately defined those different torts. Instruc-
tion 11 then followed up with a definition of the differing rights of
self-defense that pertain respectively to assault and to battery situa-

                     6
tions. If one is being merely assaulted, he may not react with reason-
able force unless he has reason to believe, and does believe, that it is
necessary to avoid the threatened injury; once he is being subjected
to an actual battery, he may then use such reasonable force as is nec-
essary to repel the already-realized threat of bodily injury. That was
the clear gist of the two instructions in combination. That the proposi-
tion might have been somewhat more clearly stated does not require
appellate correction where the gist is sufficiently clear. See Hardin v.
Ski Venture, Inc., 50 F.3d 1291, 1295 (4th Cir. 1995). Nor does the
refusal of the court to instruct precisely as may have been requested.
Id. at 1294.

We find no prejudicial error in the district court's self-defense
instruction.

B.

Hampton also challenges the district court's refusal to give any
instruction--as Hampton requested--on the right of a landowner to
use force when removing a trespasser from his property. Pointing to
evidence that Hampton only used force against Davis after Davis and
his friends had been ordered off the premises, Hampton says this
invoked the landowner-trespasser defense.

The district court refused to give any instruction on this defense on
the basis that the evidence would not support the necessary finding
that at the critical time Davis was in fact a trespasser. We need not
decide whether the court was correct in that perception for even if we
were to conclude that a trespass might have been found, any error in
declining to instruct on this defense was harmless. A proper instruc-
tion on this defense would have told the jury only that a landowner
has a right "`to order [a trespasser] away, and if he refuse[s] to go,
to use proper force to expel him' so long as no breach of the peace
is committed in the outset." Diffendal v. Commonwealth, 382 S.E.2d
24, 25-26 (Va. App. 1989) (quoting Montgomery v. Commonwealth,
37 S.E. 841, 842 (Va. 1901)).1
_________________________________________________________________
1 The requested instruction probably would have given greater latitude
in the use of force than would the Diffendal statement of rule; it would
have allowed any force that would not cause serious bodily injury--
presumably without regard to the circumstances.

                     7
All such an instruction would have given Hampton was the chance
to escape liability by proving that the force he used on Davis was
"proper" under the circumstances. The jury, however, necessarily had
rejected, in rejecting his self-defense defense--any finding that the
force he used was "reasonable" under the circumstances. It cannot be
assumed that a jury unwilling to find reasonable force in the act of
breaking a jaw with a "sucker punch" as a matter of self-defense nev-
ertheless would be prepared to find the same use of force "proper" for
purposes of evicting a trespasser.

For these reasons, if there was any error in declining to give a spe-
cific landlord-trespasser instruction--of which we are doubtful--it
was harmless.

III.

On the damages issue, appellants contend that the trial court erred
by permitting Davis's expert witness, Talbot Smith, to testify as an
expert and offer his opinion that Davis would likely have received a
$1,800,000 contract to play major league baseball had he not suffered
the broken jaw in 1993. "Whether to allow expert testimony and
whether a potential witness possesses sufficient education and train-
ing to render an expert opinion are questions committed to the discre-
tion of the trial judge," and in review, we consider only whether such
discretion has been abused. Sparks v. Gilley Trucking Co. Inc., 992
F.2d 50, 53 (4th Cir. 1993) (citation omitted).

Davis claimed physical, emotional and economic damages as a
result of his injury. Specifically, as to economic damage he argued
that because his broken jaw prevented him from playing most of the
1993 baseball season, this lack of playing time precluded him from
landing a major-league contract for the 1994 season. As a result, he
lost substantial income. Smith, testifying as a qualified expert, opined
that people involved in baseball, such as managers, scouts or team
owners, need to see players perform for a substantial length of time--
preferably an entire season--in order to evaluate their talent. Davis's
jaw injury precluded him from playing a full season in 1993 and pre-
vented him from obtaining the type of exposure necessary to acquire
a contract for 1994.

                     8
Viewed as a whole, Smith's testimony focused on two issues cen-
tral to Davis's claim for damages: (1) whether there was a causal con-
nection between Davis's lost playing time during the 1993 baseball
season and his failure to obtain a major league contract for 1994; and
(2) if so, whether such monetary loss could be quantified. Appellants
admitted during trial that Smith was knowledgeable about baseball.
Indeed, in their brief, they concede that Smith has had an extensive
career in professional baseball since 1958, a career which has exposed
him to the recruitment and evaluation of talent, scouting, the training
of players, team assembly, contract negotiation, player arbitration,
and the overall evaluation of baseball teams.

Despite Smith's qualifications, appellants claim that under the stan-
dards enunciated in Daubert v. Merrell-Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), and according to Rule 702 of the Federal Rules
of Evidence, Smith's speculative opinion concerning Davis's ability
to secure a major league contract in 1994, and the salary to which
Davis would therefore have been entitled, should have been excluded.
With respect to the contention that Smith's testimony should have
been excluded under Daubert, we find the argument to be without
merit. Simply put, we do not believe that the evidence proffered by
Smith concerning baseball salaries and the likelihood Davis would
have secured a contract had he not been injured in 1993, is the type
of "scientific" evidence that must pass Daubert muster.

And, we believe that the evidence clearly was admissible under
Evidence Rule 702, which provides that:

          If scientific, technical, or other specialized knowledge will
          assist the trier of fact to understand the evidence or to deter-
          mine a fact in issue, a witness qualified as an expert by
          knowledge, skill, experience, training, or education, may
          testify thereto in the form of an opinion or otherwise.

Whether expert testimony will assist the jury is dependent on the
facts of the particular case. Kopf v. Skyrm, 993 F.2d 374, 379 (4th Cir.
1993). In this case, the testimony offered by Smith surely could assist
the jury in quantifying the economic loss, if any, that Davis had suf-
fered as a result of his jaw injury. It was therefore clearly admissible
for that critical purpose.

                    9
IV.

We have considered appellants' remaining assignments of error2
and find them to be without merit.

AFFIRMED
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2 These were that: (1) the district court erred by improperly question-
ing their expert witness; and (2) the court erred in permitting Davis to
impeach Hampton using deposition testimony concerning whether
Hampton had ever been charged with a crime.

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