Hirst v. Inverness Hotel Corp

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

9-19-2008

Hirst v. Inverness Hotel Corp

Precedential or Non-Precedential: Precedential

Docket No. 07-1277

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________

No. 07-1277

_________

JANET HIRST; DAVID HIRST,

Appellants

v.

INVERNESS HOTEL CORP.,

d/b/a Chenay Bay Beach Resort;

CHENAY BAY BEACH CLUB, INC.;

RANGER AMERICAN OF THE VI, INC.;

PETER LOCKE; DEBI FORBES; VICTORIA LOCKE;

RICHARD LOCKE; R.F. CORP.; 515909 ONTARIO LTD.;

SUN VACATION PROPERTIES CORP.

_________

On Appeal from the District Court

of the Virgin Islands

(D.C. Civil No. 04-cv-00095)

District Judge: Honorable Anne E. Thompson

__________

Argued May 5, 2008

Before: RENDELL, FUENTES, and CHAGARES,

Circuit Judges

(Filed September 19, 2008)

Vincent A. Colianni, Esq. [ARGUED]

Colianni & Colianni

1138 King Street

Christiansted, St. Croix

USVI 00820-0000

Counsel for Plaintiffs-Appellants

Janet Hirst; David Hirst

Wilfred A. Geiger, Esq.

Eugenio W.A. Geiger-Simounet, Esq. [ARGUED]

P. O. Box 25749, Gallows Bay

Christiansted, St. Croix

USVI 00824-0000

Counsel for Defendants-Appellees

Inverness Hotel Corp., d/b/a Chenay Bay Beach Resort;

Chenay Bay Beach Club, Inc.;

Ranger American of the VI, Inc.;

Peter Locke; Debi Forbes; Victoria Locke;

Richard Locke; R.f. Corp.; 515909 Ontario Ltd.;

Sun Vacation Properties Corp.

__________

OPINION OF THE COURT

__________

2

RENDELL, Circuit Judge.

Appellants Janet and David Hirst (“the Hirsts”) appeal

the final judgment of the District Court in favor of Appellee

Ranger American of V.I. (“Ranger”) following a jury trial and

verdict. The Hirsts contend that the District Court committed

legal error at trial by allowing Ranger’s president to give

improper lay opinion testimony concerning the issue of

proximate causation in violation of Federal Rule of Evidence

701. We agree. For the reasons stated below, we will vacate the

District Court’s entry of judgment and remand for a new trial.

BACKGROUND

On July 20, 2004, the Hirsts filed a complaint in the

District Court of the Virgin Islands against Inverness Hotel

Corporation, alleging negligence and loss of consortium in

connection with the July 4, 2004, rape of Janet Hirst at the

Chenay Bay Beach Resort (“Chenay Bay”) in St. Croix. On

July 28, 2004, the Hirsts amended their complaint, adding a

number of individual and corporate defendants, including

Ranger, the security services company employed by Chenay

Bay. By the time the case went to trial, Ranger was the only

defendant that remained.

Beginning on November 27, 2006, the case was tried

before a jury in St. Croix. Over the course of the trial, the jury

3

heard evidence that, on July 4, 2004, after returning from an

evening fireworks display, Janet Hirst was raped in her vacation

cottage at Chenay Bay by a man wearing latex gloves and a

bandana that covered his face. According to Mrs. Hirst, the

rapist—who was never found and/or identified—used a grocery

bag as a make-shift condom and was careful to wipe down

various areas of the room before he fled.

The Hirsts introduced evidence that Chenay Bay had

contracted with the defendant, Ranger, to provide nighttime

security services for the resort. Ranger was to provide a

uniformed security guard every evening between 9:00 p.m. and

1:00 a.m. The guard’s duties were outlined in a document

drafted by Ranger known as “post orders” (App. 58-60; see also

App. 272-73) and included, inter alia, patrolling the “entire

complex” twice an hour “without exhibiting a pattern,”

monitoring all incoming and outgoing activities “to ensure that

unauthorized persons/vehicles refrain from accessing the

properties,” and escorting late arriving guests to their rooms

(App. 60; see also 273-74). The post orders also required the

security guard to carry a flashlight and a radio.

The night of Mrs. Hirst’s rape, the Ranger security guard

on duty, Felix St. Rose (“St. Rose”),1 arrived for his shift “some

1

Select portions of St. Rose’s deposition testimony were read

into the record, as the Plaintiffs were unable to locate St. Rose

(continued...)

4

minutes before ten.” (App. 254-55.) He was provided with

neither a flashlight nor a radio. St. Rose testified that, during his

shift, he failed to perform several of the duties enumerated in the

post orders. For example, St. Rose patrolled the resort only

once an hour, instead of twice an hour as the post orders

required. Additionally, St. Rose did not patrol at all the area of

the resort where Mrs. Hirst was raped. According to St. Rose,

he did not patrol the area where the Hirsts’ cottage was located

because his supervisor told him that the area was “too dark for

[his] own safety.” (App. 256.)2 St. Rose believed that “without

1

(...continued)

after his deposition to subpoena his live testimony.

2

From the St. Rose testimony:

Q: Are you familiar with Cottage Number 26,

where the rape occurred?

A: No, sir.

Q: You’re not familiar with it?

A: No.

Q: Did you patrol in that area?

A: No, sir.

(continued...)

5

a flashlight or without any light, somebody could jump out and

knock [him] down or knock [him] out.” (App. 265)

In addition to Mrs. Hirst and St. Rose, the jury heard

from several other witnesses, including Ranger’s president, Juan

Bravo (“Bravo”), whose testimony is the subject of this appeal.

At the very conclusion of Bravo’s direct examination,3 Ranger’s

counsel asked Bravo whether Ranger could have been able to

prevent Mrs. Hirst’s rape, immediately prompting an objection.

The trial transcript reveals the following exchange:

2

(...continued)

Q: Why not?

A: Because that is one of the places that was

dark.

Q: Okay. So before July 4th, before that night, you had

never seen Cottage 26?

A: No, sir. Not even that night I saw it.

(App. 256-57.)

3

Because the Hirsts played Bravo’s deposition testimony to

the jury as part of their case in chief, Ranger contends that its

examination of Bravo was technically a cross-examination. As

the trial transcripts refers to Ranger’s examination of Bravo as

“DIRECT EXAMINATION” (App. 429), we will use the same

label to avoid confusion.

6

Q: Based on your knowledge of the facts of

this case, could Ranger American, within

the limited scope of its functions, have

been able to prevent the attack against

Mrs. Hirst?

[Hirsts’ Counsel]: Objection. No foundation.

Calls for speculation. Not an expert witness.

The Court: Well, he’s not an expert witness.

He’s the president of the defendant company, and

if he has an opinion when he’s being, his

company is being sued with regard to this

incident, I don’t think it’s unfair to give him an

opportunity to express an opinion with regard to

that.

A: Given the facts that I have been presented,

there was no way that this alleged incident

would have been prevented by us or by

anyone.

The Court: By whom?

A: By us or by anyone.

7

The Court: All right.

(App. 432-33.)

After the close of evidence, the jury found that, although

Ranger was in fact negligent in providing security services on

July 4, 2004, its negligence was not a proximate cause of Mrs.

Hirst’s rape. Accordingly, on January 3, 2007, the District

Court entered judgment in favor of Ranger. On January 10,

2007, the Hirsts filed a timely notice of appeal. We now have

jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

As recognized above, the Hirsts contend that District

Court erred in allowing Ranger’s president, Juan Bravo

(“Bravo”), to give improper lay opinion testimony in violation

of Federal Rule of Evidence 701. According to the Hirsts,

Bravo’s testimony was particularly harmful, as he was permitted

to express an opinion concerning the very issue upon which the

jury ultimately based its verdict: proximate causation. They ask

that we vacate the District Court’s judgment and remand for a

new trial.

In response, Ranger insists that the Hirsts failed to

properly preserve their Rule 701 argument in the District Court.

According to Ranger, “[t]he objection raised on appeal by

appellant is clearly improper as it was not raised at trial.”

8

(Appellee’s Br. VIII.) On the merits of the Hirsts’ argument,

Ranger maintains that the District Court’s decision to admit

Bravo’s opinion testimony was “appropriate” (id. at VII) and

contends that, in any event, the testimony “had no major effect

on the jury verdict” (id. at VI.)

I. Waiver

At the outset, we find absolutely no basis for Ranger’s

contention that the Hirsts failed to preserve their Rule 701

argument for appeal. It could not be more clear from the trial

record—and from the Hirsts’ direct and accurate citation of the

record in their brief (see Appellants’ Br. 9-10)—that the Hirsts

raised a proper objection to the testimony they now challenge on

appeal.4 To be certain, the relevant transcript excerpt, as cited

above, indicates that counsel objected on several grounds to the

4

We note that although the Hirsts clearly identify the specific

portion of Bravo’s testimony upon which they base their appeal,

Ranger centers its waiver argument on an entirely different

aspect of Bravo’s testimony. (See Appellee’s Br. 1 (referencing

an unrelated exchange between counsel and the Court that

occurred at the beginning of Bravo’s direct testimony

(App. 429), not at the conclusion (App. 432-33).) It thus

appears to the Court that Ranger’s waiver argument is, at best,

the product of a fundamental misunderstanding and/or

misreading of the Hirsts’ appeal or, at worst, a deliberate

attempt to distort the record. In either case, the argument has no

merit.

9

question posed. While counsel did not say “improper lay

opinion,” the stated grounds for his objection (lack of

foundation, speculation, and “[n]ot an expert witness”) point to

the same concerns, as discussed further below.

Counsel’s objection provided both Ranger and the Court

with sufficient notice of the bases for the objection and an

opportunity to correct the alleged error; and the Court’s response

demonstrates that it was aware of and understood the Hirsts’

position.5 Finding no support in either law or fact for Ranger’s

argument, we easily conclude that the Hirsts have adequately

preserved this issue on appeal.

5

Federal Rule of Evidence 103(a)(1) requires that a timely

objection or motion to strike must “stat[e] the specific ground of

objection, if the specific ground was not apparent from the

context.” (emphasis added). The Advisory Committee Notes to

Rule 103 indicate that the purpose of the specificity requirement

is to call the nature of the error “to the attention of the judge, so

as to alert him to the proper course of action and enable

opposing counsel to take proper corrective measures.”

10

II. Federal Rule of Evidence 701

We next address whether Bravo’s testimony should have

been prohibited under Federal Rule of Evidence 701. While we

generally review a district court’s decision to admit or exclude

evidence for abuse of discretion, our review is plenary as to the

court’s interpretation of the Federal Rules of Evidence. Marra

v. Philadelphia Housing Authority, 497 F.3d 286, 297 (3d Cir.

2007).

Rule 701, entitled “Opinion Testimony by Lay

Witnesses,” provides that:

If the witness is not testifying as an expert, the

witness’ testimony in the form of opinions or

inferences is limited to those opinions or

inferences which are (a) rationally based on the

perception of the witness, (b) helpful to a clear

understanding of the witness’ testimony or the

determination of a fact in issue, and (c) not based

on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

The plain language of Rule 701 establishes that lay opinion

testimony must satisfy the criteria set forth in subsections (a),

(b), and (c) in order to be admissible. Bravo’s testimony

satisfies none of these criteria.

11

First, a lay opinion must be rationally based on the

witness’s perception and “firsthand knowledge of the factual

predicates that form the basis for the opinion.” Gov’t of V.I. v.

Knight, 989 F.2d 619, 629 (3d Cir. 1993) (citing Fed. R. Evid.

701(a) advisory committee’s note); see also United States v.

Glenn, 312 F.3d 58, 67 (2d Cir. 2002) (“[A] lay opinion must be

rationally based on the perception of the witness. This

requirement is the familiar requirement of first-hand knowledge

or observation.”); cf. Fed. R. Evid. 602 (“A witness may not

testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the

matter.”).6

6

The District Court applied this requirement at other points in

the trial. When the District Court admitted Dr. Burgess, the

Hirsts’ rape trauma expert, it explained to the jury:

Most witnesses who are called to testify in a trial

have personal knowledge of the facts about which

they’re called upon to testify. Someone has to

have learned about the incident through their

senses, having seen it, heard something, been

there.

Expert witnesses are the exceptions to that rule.

They’re permitted to testify even though they

were not present. They know nothing from their

own senses of the facts of the case. They’re

(continued...)

12

6

(...continued)

permitted to give opinions to assist the jury in

evaluating the other evidence in the case.

(App. 164.) Later in Dr. Burgess’s testimony, counsel for the

Hirsts attempted to solicit the doctor’s opinion as to whether or

not Mrs. Hirst’s rape could have been prevented. Because Dr.

Burgess had been admitted strictly as an expert in rape trauma,

the District Court found the question to be beyond her expertise.

The following exchange occurred:

[Hirsts]: My question is really, Dr. Burgess, at

this juncture, based on what you, know, is there

anything Janet Hirst could have done to prevent

this incident?

A: No.

Q: You may continue.

[Ranger]: We’re going to object to that

conclusion. I think that’s way beyond her realm.

The Court: I’m going to sustain the objection.

The problem with that question is that, obviously,

this witness was not there. And she is being

asked to give an opinion about an incident she did

not witness, was not present, and about which she

learned by telephone and in-person interviews

(continued...)

13

Bravo’s opinion was not based on his own perception. In

his videotaped deposition, which appears to have been played in

full to the jury, Bravo clearly testified that he had never been to

Chenay Bay (Supp. App. 21-22 (“Q: Have you ever been to

Chenay Bay yourself? A: No.”)) and that he learned everything

about Mrs. Hirst’s rape second-hand through either his attorney

or Delroy Richards, the vice president of Ranger “in charge of

the entire Virgin Islands operation.” (Supp. App. 20, 7; see also

Supp. App. 47.) In fact, Bravo spent almost the entirety of his

deposition explaining to the Hirsts’ counsel—in no uncertain

terms—that he could not adequately answer many of counsel’s

questions as he knew little about Ranger’s Virgin Islands

operations, Chenay Bay, its post orders, and/or the

circumstances surrounding Mrs. Hirst’s rape. (See, e.g., Supp.

6

(...continued)

with the Hirsts back in the United States.

(App. 168.) The excluded question above is nearly identical, in

structure, to the question challenged on appeal. (See App. 432

(“Q: Based on your knowledge of the facts of this case, could

Ranger American, within the limited scope of its functions, have

been able to prevent the attack against Ms. Hirst?”).) As will be

explained above, the reasons the District Court articulated in

refusing to permit Dr. Burgess’s testimony are among the very

same reasons the District Court should have sustained counsel’s

objection to the testimony now challenged on appeal.

14

App. 6-7, 15, 18, 21-48; 49-53, 57, 65, 68-69; 29, 46).7 Bravo

even complained at the beginning of his live testimony that

some of the deposition questions posed to him called for

speculation. Ultimately, it is beyond dispute that Bravo’s

opinion was not based on his own perception or firsthand

knowledge. Even the way Bravo prefaced his answer to the

challenged question (“Given the facts that I have been

presented, there was no way that this alleged incident would

have been prevented by us or by anyone.” (App. 433)) supports

this conclusion.

Second, lay opinion testimony must be “helpful to a clear

understanding of the witness’ testimony or the determination of

a fact in issue.” Fed. R. Evid. 701(b). Bravo’s testimony does

not meet this standard. As the Sixth Circuit has recognized,

“seldom will be the case when a lay opinion on an ultimate issue

will meet the test of being helpful to the trier of fact since the

jury’s opinion is as good as the witness’ and the witness turns

into little more than an ‘oath helper.’” Mitroff v. Xomox Corp.,

797 F.2d 271, 276 (6th Cir. 1986). In this case, the question to

which the Hirsts’ counsel objected at trial called for Bravo, a

non-expert, to offer an opinion as to the ultimate issue of

causation, and Bravo’s response (that “there was no way that

this alleged incident would have been prevented by us or by

anyone” (App. 433)) provided the jury with little more than a

7

Here, the objection to Bravo’s testimony as being without

foundation or speculative rings true.

15

self-serving, conclusory opinion as to what result it should

ultimately reach. As Bravo’s testimony “amount[ed] to little

more than choosing up sides, exclusion for lack of helpfulness

[wa]s called for by [Rule 701(b)].” Fed. R. Evid. 701 advisory

committee’s note.8

8

The fact that Bravo’s lay opinion testimony touched on an

ultimate issue in the case is not, itself, problematic. Rule 704,

which governs “Opinion on Ultimate Issue,” clearly states that

ultimate issue testimony is permissible:

(a) Except as provided in subdivision (b),

testimony in the form of an opinion or inference

otherwise admissible is not objectionable because

it embraces an ultimate issue to be decided by the

trier of fact.

(b) No expert witness testifying with respect to

the mental state or condition of a defendant in a

criminal case may state an opinion or inference as

to whether the defendant did or did not have the

mental state or condition constituting an element

of the crime charged or of a defense thereto. Such

ultimate issues are matters for the trier of fact

alone.

But even though Rule 704 generally authorizes the

admission of opinion testimony on an ultimate issue, the Rule

(continued...)

16

Finally, under Rule 701(c), admissible lay opinion

testimony must “not [be] based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” While we

do not believe that Bravo’s opinion was, in fact, based on

specialized knowledge (as it was given out of self-interest and

without any foundation), Rule 701’s final criterion is

nevertheless worthy of brief discussion.

Subsection (c) of Rule 701 was added to “eliminate the

risk that the reliability requirements set forth in Rule 702 will be

evaded through the simple expedient of proffering an expert in

8

(...continued)

makes clear that the proffered testimony must also be “otherwise

admissible.” As the Advisory Committee Notes to Rule 704

explain:

The abolition of the ultimate issue rule does not

lower the bars so as to admit all opinions. Under

Rules 701 and 702, opinions must be helpful to

the trier of fact, and Rule 403 provides for

exclusion of evidence which wastes time. These

provisions afford ample assurances against the

admission of opinions which would merely tell

the jury what result to reach, somewhat in the

manner of the oath-helpers of an earlier day.

Thus, a proffered opinion must satisfy the criteria set

forth in, inter alia, Rule 701 before the court permits a jury to

hear it.

17

lay witness clothing” and to “ensure[] that a party will not evade

the expert witness disclosure requirements set forth in Fed. R.

Civ. P. 26 and Fed. R. Crim. P. 16 by simply calling an expert

witness in the guise of a layperson.” Fed. R. Evid. 701 advisory

committee’s note. Thus, had Bravo’s opinion been based on

specialized knowledge, Ranger would have been required to

disclose him as an expert and his testimony would have been

subject to the reliability requirements of Rule 702. Bravo was

not so disclosed, nor was there any attempt to qualify him as an

expert at trial. Yet, in the absence of personal perception, an

opinion as to whether Mrs. Hirst’s rape could have been

prevented would have had to depend on, inter alia, technical or

specialized knowledge of the various security measures Ranger

could/should have taken. Not having been qualified as an expert

in security (or in any other area for that matter), Bravo should

not have been permitted to offer such an opinion. His position

as president of Ranger is irrelevant to this analysis. As the

Advisory Committee Note to Rule 701 makes clear, a party

simply may not use Rule 701 as an end-run around the reliability

requirements of Rule 702 and the disclosure requirements of the

Rules of Procedure. Preventing such attempts is the very

purpose of subsection (c).

18

III. Harmless Error Analysis

Having found that the District Court erred in admitting

Bravo’s challenged testimony, we must next ask whether the

error was harmless. Becker v. ARCO Chemical Co., 207 F.3d

176, 205 (3d Cir. 2000). Discretionary evidentiary rulings will

give rise to reversible error only where “a substantial right of the

party is affected.” Id. at 180 (internal quotation marks

omitted).9 As we have held, this means that we will affirm a

District Court’s evidentiary ruling, even if it is erroneous, “only

if it is highly probable that the error[] did not affect the outcome

of the case.” McQueeney v. Wilmington Trust Co., 779 F.2d

916, 917 (3d Cir. 1985).10

9

See also Fed. R. Evid. 103(a) (providing that an evidentiary

ruling may not be reversible error “unless a substantial right of

a party is affected”); Fed. R. Civ. P. 61 (“No error . . . is ground

for granting a new trial or for setting aside a verdict . . . unless

refusal to take such action appears to the court inconsistent with

substantial justice”); 28 U.S.C. § 2111 (appellate court should

give judgment “without regard to errors or defects which do not

affect the substantial rights of parties”).

10

Cf. Doty v. Sewall, 908 F.2d 1053, 1057 (1st Cir. 1990)

(“When evidence is charged to have been improperly admitted,

any error is more likely to be found harmful, and thus reversible,

if the evidence is substantively important, inflammatory,

repeated, emphasized, or unfairly self-serving.” (internal

(continued...)

19

After a thorough review of the trial record in this case,

we are not convinced that the District Court’s error was

harmless. As we have noted above, although the jury found that

Ranger was negligent in providing security services on the night

of Mrs. Hirst’s rape, it found Ranger not liable. Its verdict

turned on the very issue as to which Bravo was permitted to give

improper lay opinion testimony: proximate causation. The jury

quite possibly could have believed that Bravo’s opinion was

“evidence” relevant to its inquiry11 and may have relied on the

opinion in reaching its verdict. With the overall evidence as to

causation presenting a close case, we simply cannot conclude

that it is “highly probable” that the error did not affect the jury’s

verdict. See Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir.

2000) (“This case was factually very close and we are especially

loath to regard any error as harmless in a close case, since in

10

(...continued)

quotation marks omitted)).

11

We note here that the District Court’s response to counsel’s

objection—which was heard by the jury, as the objection was

not taken at sidebar—could have implied to the jury that

Bravo’s opinion was in fact relevant, if not significant. In fact,

the District Court even prompted Bravo to repeat his overly

broad statement that no one, not just his company, could have

prevented what had happened to Mrs. Hirst.

20

such a case even the smallest error may have been enough to tilt

the balance.” (internal quotation marks omitted)).12

Thus, because we find that the District Court’s error in

admitting Bravo’s testimony was not harmless, we will grant a

new trial.

12

In Hester, plaintiff brought a Title VII and § 1981 race

discrimination and retaliation suit against her employer. At trial,

several of plaintiff’s co-workers, who were not involved in the

challenged employment decision, speculated that the decision

must have been attributable to the plaintiff’s race. 225 F.3d at

181. In holding that the coworkers’ testimony had been

improperly admitted and that its admission constituted reversible

error, the Second Circuit explained:

[T]he likely benefits of lay opinion testimony

must outweigh its costs. Lay opinion testimony

may be helpful even if it bears on the ultimate

issue in the case, but the costs of lay opinion

increases and the benefits diminish the closer the

opinion approaches the crucial issues in the case.

This is because, even where . . . the opinion is

accompanied by supporting facts, the risk remains

that the opinion may distract jurors from their task

of drawing an independent conclusion as to an

ultimate issue in the case.

Id. at 182 (internal citations and quotation marks omitted; first

alteration in original).

21

CONCLUSION

For the reasons set forth above, we will VACATE the

District Court’s entry of judgment and REMAND for a new

trial.

22