Dustin Reinard v. Crown Equipment Corporation

D
                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3440
                        ___________________________

   Dustin Reinard, Individually and as Parent of B.R. and K.R.; Misty Reinard

                                    Plaintiffs - Appellants

                                        v.

                         Crown Equipment Corporation

                                    Defendant - Appellee
                                 ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa - Waterloo
                                 ____________

                         Submitted: September 24, 2020
                            Filed: December 30, 2020
                                ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                        ____________

GRUENDER, Circuit Judge.

     Dustin and Misty Reinard brought a products liability action against forklift
manufacturer Crown Equipment Corp. (“Crown”). After the district court1 admitted



      1
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, now retired.
evidence over the Reinards’ objections in limine, the jury returned a verdict for
Crown, and the district court denied the Reinards’ motion for a new trial. We affirm.

                                           I.

       On July 22, 2014, Dustin Reinard was injured while operating a stand-up
forklift manufactured by Crown. By design, the forklift’s operator compartment
lacked a door. As Reinard was backing the forklift in a warehouse, the side of the
forklift where the entrance was located struck a pole. Because Reinard’s left foot
was outside the operator compartment at the time of impact, it was crushed against
the pole, and Reinard’s left leg had to be amputated.

       The Reinards, citizens of Iowa, sued Crown in Iowa state court. Crown, which
is incorporated and has its principal place of business in Ohio, removed the case to
federal court on the basis of diversity jurisdiction. See generally 28 U.S.C.
§ 1332(a). In their complaint, the Reinards alleged that the forklift’s design was
defective because it omitted a door. Crown contested this allegation on the ground
that the risks of adding a door outweighed the utility. According to Crown, the
presence of a door leads to more serious injuries in off-dock and tip-over accidents
by preventing the operator from escaping the falling forklift.

       Before trial, the Reinards filed a motion in limine to prevent Crown from
introducing certain video simulations of off-dock and tip-over accidents in forklifts
with doors. The district court denied the motion. Prior to voir dire, the district court
permitted each party a “mini-opening” during which that party could display three
“visual aids” to the prospective jurors, and Crown displayed photographs that were
taken while some of the simulations were being filmed. Crown also referenced the
simulations during its opening statement at trial. But it was the Reinards who first
introduced the simulations as evidence, showing them to the jury during their case-
in-chief. In their opening brief on appeal, the Reinards explained that, “because
[their] pretrial efforts to have [the simulations] excluded were denied, reasonable



                                          -2-
litigation strategy demanded that [they] try to mitigate the damage caused by the
admission of the evidence by discussing it first.”

      The jury returned a verdict for Crown, and the district court denied the
Reinards’ motion for a new trial. The Reinards appeal, challenging the district
court’s admission of the simulations and denial of their motion for a new trial.

                                           II.

       Typically, we review for abuse of discretion both “the district court’s
admission of evidence,” United States v. Young, 644 F.3d 757, 759 (8th Cir. 2011),
and “the district court’s denial of a motion for a new trial,” Jones v. Swanson, 341
F.3d 723, 732 (8th Cir. 2003). But if the appellant forfeited his objections to a ruling,
then we review the ruling only for plain error. Young, 644 F.3d at 759 n.2. And if
the appellant waived his objections to a ruling, then we do not review the ruling at
all. Id. As the Supreme Court has explained, forfeiture is the “failure to make the
timely assertion of a right,” whereas waiver is the “intentional relinquishment or
abandonment of a known right.” Hamer v. Neighborhood Hous. Servs., 583 U.S. --
-, 138 S. Ct. 13, 17 n.1 (2017).

        In Huff v. Heckendorn Manufacturing Co., we held that by “intentionally
plac[ing evidence] in the record,” a party “waive[s] any claim of error” in the
admission of that evidence. 991 F.2d 464, 467 (8th Cir. 1993). We held that this
rule applies even if the party had filed a motion in limine raising objections to the
admission of the evidence; even if the trial court in its ruling on that motion in limine
had “made it abundantly clear” that it “was overruling those objections”; and even
if the opposing party had referred to the evidence earlier at trial, leaving little doubt
that it would have introduced the evidence had the formerly objecting party not done
so first. Id. at 465, 467. If under these circumstances the formerly objecting party
adopts the “strategy” of “attacking the issue head-on and introduc[ing the] evidence”
itself, then that party “waives any objection that [it] may have had” to the admission
of the evidence. Id. at 468; see also Ohler v. United States, 529 U.S. 753, 755 (2000)


                                          -3-
(“Generally, a party introducing evidence cannot complain on appeal that the
evidence was erroneously admitted.”); Canny v. Dr. Pepper/Seven-Up Bottling Grp.,
439 F.3d 894, 904 (8th Cir. 2006) (holding that by “preemptively . . . introduc[ing]”
evidence at trial, the defendant “waived its challenge to the admission of the
evidence on appeal”).

       Here, the Reinards were the first to introduce the video simulations. The
Reinards point out, correctly, that they had filed a motion in limine to exclude the
simulations, the district court had denied that motion, and Crown had referred to the
evidence in its opening statement, leaving little doubt that Crown would have
introduced the evidence had the Reinards not done so first. But Huff held that, even
in these circumstances, “intentionally plac[ing evidence] in the record . . . waive[s]
any claim of error” in the admission of the evidence. 991 F.2d at 467. Therefore,
the Reinards waived their objections to the district court’s admission of the video
simulations.2

      The Reinards present three arguments against our application of Huff. First,
they argue that Huff is no longer good law. In 2000, Rule 103 of the Federal Rules
of Evidence was amended to provide that “[o]nce the court rules definitively on the
record—either before or at trial—a party need not renew an objection . . . to preserve
a claim of error for appeal.” Fed. R. Evid. 103(b). The Reinards argue that this
amendment abrogated Huff by making a definitive pretrial ruling that evidence is
admissible sufficient to preserve objections to the admission of the evidence for
appeal.



      2
        In their briefs, the Reinards sometimes frame their evidentiary challenge as a
challenge to the district court’s denial of their motion in limine to exclude the
simulations. Reframing the Reinards’ challenge in these terms would not change
our analysis: the “waiver rule” applies equally to objections to the admission of
evidence at trial and objections to pretrial rulings that the evidence was admissible.
See Ohler, 529 U.S. at 755-57 (holding that “appellate review of an in limine ruling”
that evidence is admissible is unavailable to the party that introduced the evidence).

                                         -4-
        The Reinards misread Rule 103(b). On its face, Rule 103(b) merely provides
that once the court has definitively rejected an objection to the admissibility of
evidence, failure to renew the objection does not constitute a forfeiture of the
objection. It does not follow that preemptively introducing the evidence does not
constitute a waiver of the objection. The Advisory Committee Notes on the 2000
amendment to Rule 103 make this very point, emphasizing that “[t]he amendment
does not purport to answer whether a party who objects to evidence that the court
finds admissible in a definitive ruling, and who then offers the evidence to ‘remove
the sting’ of its anticipated prejudicial effect, thereby waives the right to appeal the
trial court’s ruling.”3

       Indeed, Huff pointed out the compatibility between its holding and the
substance of what is now Rule 103(b). By the time we decided Huff in 1993, we had
already recognized an exception to the general rule that “a motion in limine does not
preserve error for appellate review” for cases in which “the district court made a
definitive pre-trial ruling that affected the entire course of the trial.” Sprynczynatyk
v. Gen. Motors Corp., 771 F.2d 1112, 1118 (8th Cir. 1985). The plaintiffs in Huff
appeared to invoke this exception, protesting that the trial court’s pretrial rulings had


      3
         The dissent objects to our reading of Rule 103(b), noting that the rule speaks
of “preserv[ing] . . . for appeal” rather than avoiding “forfeiture.” Post, at 9. The
dissent perceives a difference between these phrases, insisting that “[n]ot forfeiting
an objection is different than preserving it.” Id. Contra Muiruri v. Lynch, 803 F.3d
984, 987 (8th Cir. 2015) (“An error . . . is forfeited—that is, not preserved for
appeal—by the failure to make timely assertion of the right.” (internal quotation
marks omitted)). Although we fail to see the distinction, we need not quibble over
semantics. While Rule 103(b) undoubtedly provides that failure to renew an
objection after a definitive ruling does not constitute failure to preserve the objection
(i.e., forfeiture), it simply does not address what might constitute a waiver of the
objection. For example, suppose that, after a definitive ruling, the objecting party
changes its mind and decides to stipulate to the admissibility of the evidence. In that
case, we presume, the party has waived its objection, Rule 103(b) notwithstanding.
See Blodgett v. Comm’r, 394 F.3d 1030, 1040 (8th Cir. 2005) (indicating that
stipulation constitutes waiver). Likewise if the party “decide[s] preemptively to
introduce” the evidence. Canny, 439 F.3d at 904.

                                          -5-
“made it abundantly clear that the nature of [the plaintiffs’] objections were known
and that the trial court was overruling those objections.” 991 F.2d at 467. We did
not deny that the exception existed or that it may have excused the plaintiffs from
having to renew their objection at trial to avoid forfeiting it on appeal. Instead, we
held the exception inapplicable because the plaintiffs’ “strategy” of “attacking the
issue head-on and introduc[ing the] evidence” first “waive[d] any objection that
[they] may have had.” Id. at 467-68. Rule 103(b) merely confirms what our caselaw
had already implied and Huff explicitly acknowledged; namely, that the plaintiffs
may have had an objection that they need not have renewed at trial to avoid forfeiting
on appeal. As Huff points out, this is consistent with holding that the plaintiffs
waived any such objection by preemptively introducing the evidence.

       Furthermore, the notion that the 2000 amendment to Rule 103 abrogated Huff
does not square with our 2006 decision in Canny, for two reasons. First, Canny
reiterated that “a party introducing evidence” has “waived its challenge to the
admission of the evidence.” 439 F.3d at 904. If the 2000 amendment to Rule 103
abrogated Huff, then this statement would have been false. Second, although Canny
did not cite Huff, it did cite Ohler, 529 U.S. at 755, in which the Supreme Court held
that “a party introducing evidence” has “waived his objection” to the admission of
the evidence and therefore “cannot complain on appeal that the evidence was
erroneously admitted.” See Canny, 439 F.3d at 904. But if the 2000 amendment to
Rule 103 abrogated Huff, then it also abrogated Ohler, which was decided on May
22, 2000, roughly six months before the amendment to Rule 103 took effect on
December 1, 2000. Therefore, if the 2000 amendment to Rule 103 abrogated Huff,
then Canny’s reliance on Ohler would have been misplaced. The notion that the
2000 amendment to Rule 103 abrogated Huff thus conflicts with both Canny’s
reasoning and Canny’s reliance on Ohler. Consequently, even if Rule 103(b) were
susceptible to an interpretation on which it abrogated Huff, our decision in Canny
would foreclose this interpretation.

      Second, the Reinards argue that Huff is factually distinguishable from this
case. As the Reinards point out, by the time they introduced the simulations, Crown


                                         -6-
had not only referenced the simulations during its opening statement at trial but also
displayed photographs from the filming of some of the simulations to the prospective
jurors during its “mini-opening” before voir dire.

       Although Crown’s use of the photographs during its “mini-opening” does
mark a difference between this case and Huff, this difference is immaterial. Crown
did not play the video simulations or even excerpts from the video simulations.
Indeed, Crown did not even display freeze-frames from the video simulations.
Crown merely displayed still photographs—no more than three—that were taken
while some of the simulations were being filmed. We view this as analogous to
referencing the simulations during an opening statement. And Huff held that
preemptively introducing evidence constitutes a waiver of any objection to the
evidence’s admission even if the opposing party referenced the evidence in its
opening statement. 991 F.2d at 465, 467; see also Jordan v. Binns, 712 F.3d 1123,
1134-35 (7th Cir. 2013) (indicating that using a demonstrative during an opening
statement is not the same as introducing it as evidence). Therefore, the Reinards’
preemptive introduction of the simulations constitutes a waiver of their objections
to the simulations’ admission even though Crown displayed photographs from the
filming of some of the simulations during its “mini-opening.”

      Third, the Reinards argue that even if they waived their objections to the
admission of the simulations, we should review the district court’s admission of the
simulations for plain error. This contention finds support in Spencer v. Young, where
we proceeded to “review the district court’s evidentiary ruling for plain error” after
concluding that the appellant had “waived his right to appeal the issue” by
“introduc[ing] the . . . evidence” at trial. 495 F.3d 945, 950 (8th Cir. 2007).

       On this point, however, Spencer is contradicted by prior circuit precedent
holding that waiver, as distinguished from forfeiture, precludes appellate review.
See, e.g., Blodgett, 394 F.3d at 1040 (holding that waiver eliminates “any right to
appellate plain error review”). “[F]aced with conflicting panel opinions,” we must
follow “the earliest opinion.” Mader v. United States, 654 F.3d 794, 800 (8th Cir.


                                         -7-
2011) (en banc). Accordingly, we refrain from reviewing the district court’s
admission of the simulations for plain error.

       Having addressed the district court’s admission of the simulations, we turn to
the district court’s denial of the Reinards’ motion for a new trial. The Reinards’ only
argument that the district court abused its discretion in denying their motion for a
new trial is based on the claim that the admission of the simulations was prejudicial
error. As we have explained, the Reinards waived this claim by preemptively
introducing the simulations. Therefore, they have failed to show that the district
court abused its discretion in denying their motion for a new trial.

                                         III.

      For the foregoing reasons, we affirm.

GRASZ, Circuit Judge, dissenting.

       The district court correctly characterized Crown’s experimental evidence (its
videos) as “the most critical in the case.” And it forthrightly stated that if it
improperly admitted that evidence, doing so “was prejudicial” and would “entitle[]
the Reinards to a new trial.” Several issues, then, must be addressed to decide if the
Reinards are entitled to a new trial. Specifically, they need favorable answers to
three questions: (1) Did they preserve their challenge to the videos’ admission?;
(2) Was that admission legal error (and thus, an abuse of discretion)?; and (3) Was
that error harmful? The court answers “no” to the first question and ends its analysis.
Because I would answer “yes” to each question, I dissent.

       A party preserves an evidentiary error with a timely, specific objection about
an error affecting its substantial rights. Fed. R. Evid. 103(a)(1). “Once the court
rules definitively on the record—either before or at trial—a party need not renew an
objection . . . to preserve a claim of error for appeal.” Fed. R. Evid. 103(b). Today,
this court concludes that the Reinards waived their ability to challenge error because


                                         -8-
they introduced Crown’s videos—videos of crash-test dummies dressed in overalls
slamming their heads or backs onto hard surfaces—first. 4 Ante at 4. To reach that
conclusion, the court treats Rule 103(b) as unhelpful to the Reinards and relies on
cases which, I believe, are distinguishable.

       The court explains that “[o]n its face, Rule 103(b) merely provides” that a
definitively-rejected-yet-unrenewed objection “does not constitute a forfeiture[.]”
Ante at 5. However, I read the plain text (which says nothing about forfeiture) to
mean that a definitive evidentiary ruling preserves a party’s right to appeal that
ruling. See Fed. R. Evid. 103(b). As the court notes, the Supreme Court has defined
“forfeiture” as “the failure to make the timely assertion of a right.” Ante at 3.
Reading “forfeiture” into Rule 103(b) seems to render the words “preserve . . . for
appeal” meaningless if those words somehow mean that a party “did not fail to
timely assert its right to object.” Not forfeiting an objection is different than
preserving it. 5




       4
        In deciding that waiver renders the claim of error unreviewable, the court
concludes that the Reinards cannot receive plain-error review. In reaching that
conclusion, the court relies on the waiver-versus-forfeiture distinction that stems
from a seminal criminal case, United States v. Olano, 507 U.S. 725, 732–36 (1993),
which interprets Fed. R. Crim. P. 52(b), the plain-error standard for criminal cases.
Ante at 3, 7. While a prior panel seems to have extended Olano’s plain-error review
standard to at least some civil cases, it did so only when error was not preserved.
See Wiser v. Wayne Farms, 411 F.3d 923, 927 (8th Cir. 2005) (recognizing that
“[t]he law in our circuit on the plain-error test in a civil context . . . [wa]s not entirely
clear” but deciding “an unpreserved error in the civil context must meet at least the
Olano standard to warrant correction”) (emphasis added)).
       5
        I believe that this distinction between error-preservation and forfeiture-
avoidance tracks Supreme Court guidance on the difference between waiver and
forfeiture. See Olano, 507 U.S. at 733 (“Waiver is different from forfeiture.”). The
difference between waiver and forfeiture matters a great deal to parties whose
appeals we cannot hear.


                                            -9-
       Along similar lines, I agree that the advisory committee did not decide if a
party can challenge a definitive, unfavorable evidentiary ruling after offering the
same evidence (that it tried but failed to keep out) to “remove the sting” of that
evidence’s “anticipated prejudicial effect[.]” See Fed. R. Evid. 103, cmt. to 2000
amendments. But in explaining what it did not decide, the advisory committee only
cited cases when parties tried to “remove the sting” from their own actions (and
mostly with prior-conviction evidence). See id. (citing cases).6

       Further, even if the cases relied upon by the court can be harmonized with the
amended Rule 103(b), those sting-removing cases all dealt with evidence of a party’s
own conduct. See Huff v. Heckerndorn Mfg., Co., 991 F.2d 464, 467 (8th Cir. 1993)
(after an unfavorable ruling on evidence about his own negligent use of a product, a
mechanic preemptively introduced evidence to show the manufacturer failed to warn
buyers about product use); Ohler, 529 U.S. at 755 (after an unfavorable ruling that
would allow the government to use a prior conviction for impeachment purposes,
testifying criminal defendant introduced that evidence on direct examination);
Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 904 (8th Cir. 2006)
(after a favorable ruling limited an employee’s use of an employer’s settlement letter
to the contents of the letter, the employer preemptively introduced that letter’s
contents on direct examination).

      6
        See United States v. Fisher, 106 F.3d 622, 627–29 (5th Cir. 1997) (criminal
defendant did not waive error by introducing prior-conviction on direct examination
after government received favorable ruling to use that evidence on cross-
examination), abrogated by Ohler v. United States, 529 U.S. 753, 755 (2000) (“[W]e
conclude that a defendant who preemptively introduces evidence of a prior
conviction on direct examination may not on appeal claim that the admission of such
evidence was error.”); Judd v. Rodman, 105 F.3d 1339, 1340–42 (11th Cir. 1997)
(plaintiff introduced evidence about her own sexual history, plastic surgery, and
work history when she alleged defendant wrongfully transmitted a sexually-
transmitted disease to her); Gill v. Thomas, 83 F.3d 537, 539–41 (1st Cir. 1996)
(plaintiff introduced evidence about his prior criminal convictions in excessive force
suit); United States v. Williams, 939 F.2d 721, 722–23 (9th Cir. 1991) (criminal
defendant introduced evidence about his prior criminal conviction).


                                        -10-
       That is not what happened here. Instead, the evidence went straight to the
merits. To prevail, the Reinards needed to prove all six design-defect elements. See
Verdict Form at 1, ECF No. 106, July 26, 2018 (“On the Reinards’ ‘design defect’
claim, as explained in Instruction No. 5, in whose favor do you find?”); see also Jury
Instrs. at 12–14, ECF No. 107, July 30, 2018 (providing six elements for design-
defect claim). Of those six elements, four hinged on whether the forklift door
presented “a reasonable alternative safer design[.]” See Jury Instrs. at 12–13, ECF
No. 107, July 30, 2018 (elements two through five). So, deciding against the door
as an alternative safer design would also decide the case against the Reinards.

       Two times before the Reinards presented any evidence, Crown emphasized
how it would use the videos. First, in its mini-opening, Crown showed the jury
pictures of the testing used in its videos. Then, in its opening statement, Crown told
the jury that its videos would show that adding a door would create “a fatal risk” to
operators seven times out of ten. The Reinards’ expert addressed that evidence to
discredit Crown’s already-presented central defensive theory (that a door would kill
operators) which also contradicted the Reinards’ theory of the case (that a door
would not). Cf. L. Timothy Perrin, Pricking Boils, Preserving Error: On the Horns
of a Dilemma After Ohler v. United States, 34 U.C. Davis L. Rev. 615, 670 (2001)
(“Ohler addresses the disclosure of a prior conviction under Rule 609 and is
particularly concerned with the prosecution’s right to decide for itself whether to use
the conviction during cross-examination. Those concerns do not exist with evidence
that relates to the merits of the dispute[.]”).

       Because I conclude waiver does not apply here, I would reach the merits of
this case.

       “[W]e have explained that ‘experimental evidence falls on a spectrum and the
foundational standard for its admissibility is determined by whether the evidence is
closer to simulating the accident or to demonstrating abstract scientific principles.’”
Dunn v. Nexgrill Indus., Inc., 636 F.3d 1049, 1055 (8th Cir. 2011) (quoting


                                         -11-
McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir. 1994)). We have
also explained that “[a] court may properly admit experimental evidence if the tests
were conducted under conditions substantially similar to the actual conditions.”
McKnight, 36 F.3d at 1401 (citing Champeau v. Fruehauf Corp., 814 F.2d 1271,
1278 (8th Cir. 1987) (cleaned up)). “[W]here the experimental tests do not purport
to recreate the accident, but instead . . . are used to demonstrate only general
scientific principles, the requirement of substantially similar circumstances no
longer applies.” Id. (citing Champeau, 814 F.2d at 1278). In McKnight, we
connected the “foundational standard” for admissibility to the need to avoid juror
confusion. Id. We predicted that jurors were not likely to confuse abstract
demonstrations of scientific principles with events on trial, but we also
acknowledged that “more troublesome cases” could be “rife with the risk of
misunderstanding” of experimental evidence that demonstrates “some [scientific]
principles of some kind . . . but in a fashion that looks very much like a recreation of
the event that gave rise to the trial.” Id. (cleaned up) (quoting Fusco v. Gen. Motors
Corp., 11 F.2d 259, 264 (1st Cir. 1993)).

       The district court did not apply the foundational admissibility standard for
experimental-evidence. Compare McKnight, 36 F.3d at 1401, with Doc. 79 at 24,
31. On appeal, Crown argues that it used the videos not as recreations but to show
the “forces generated” during certain accidents (i.e., how hard and fast the forklifts
would fall or tip over). In turn, its experts relied on those videos to testify that if
operators stayed inside forklifts during accidents, the “forces” could cause “serious
injury or death.” Crown, however, stops short of describing the crashes in its videos
as illustrating general principles about physics (or any other scientific discipline).

       I am skeptical any juror needed any help (let alone, a scientific demonstration)
to know that a fast crash into a hard surface could cause serious injury or death. So
then, what scientific principle did the dummies demonstrate? Under McKnight, the
district court needed to ask. McKnight, 36 F.3d at 1401. Crown does not suggest
that the dummies were connected to a scientific principle. So, without an articulated
scientific principle, and with no argument about substantial similarity, that


                                         -12-
experimental evidence could not come in. Id. Because the district court admitted
that evidence without applying McKnight, it based its ruling on an erroneous view
of the law and abused its discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 405 (1990) (“A district court would necessarily abuse its discretion if it based
its ruling on an erroneous view of the law or on a clearly erroneous assessment of
the evidence.”); see also Doc. 79 at 24, 31.

       We will only disturb the jury’s verdict if the evidentiary error affected the
Reinards’ substantial rights. See Fed. R. Civ. P. 61 (harmless-error review). We
look at the jury’s verdict to decide if the challenged evidence prejudiced the Reinards
and affected their substantial rights. See, e.g., Coterel v. Dorel Juvenile Grp., Inc.,
827 F.3d 804, 808 (8th Cir. 2016).

       As mentioned, the design-defect verdict required the jury to unanimously
agree that a safety door was a reasonable alternative safer design. See Verdict Form
at 1, ECF No. 106, July 26, 2018 (directing the jury to Instruction No. 5 to decide
the design-defect claim); see also Jury Instrs. at 12–14, ECF No. 107, July 30, 2018
(providing six elements for design-defect claim). A “no” answer would decide the
case for Crown. Id. The verdict does not require speculation about how Crown’s
evidence impacted the outcome. Cf. Coterel, 827 F.3d at 808.

      Nor did the district court. It was “virtually certain that this evidence
substantially affected the jury’s deliberations and verdict.” See Order Den. Pls.’
Mot. New Trial at 2, ECF No. 115, Oct. 15, 2018. It characterized the videos as “the
foundation of Crown’s defense” as well as “the most critical” evidence in the case
“because many of Crown’s trial witnesses relied on [it].” In recognition of this,
when the district court denied a new trial, it candidly stated that if it had improperly
admitted Crown’s evidence, then that error “was prejudicial and entitle[d] the
Reinards to a new trial.”




                                         -13-
       If Federal Rule of Civil Procedure 61’s harmless-error standard applies here,
as I conclude it does, we should reverse because “justice requires” it and the errors
“affect[ed]” the Reinards’ “substantial rights.”
                           ______________________________




                                        -14-

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