On Appeal from the United States District of Pennsylvania (D.C. Civ. No. 82-2534)
Before: SEITZ, BECKER, and ROSENN, Circuit Judges.
This appeal by the owner and operator of a supertanker from a verdict in favor of plaintiff Francis McQueeney, a seaman aboard the vessel, presents three interesting questions in the law of evidence. The first, arising under Fed. R. Evid. 401 and 403, is whether evidence from which it might be inferred that McQueeney has suborned perjury of a proffered witness is admissible as substantive evidence that his claim is unfounded even though the witness never testified. The second, arising under Fed. R. Evid. 901 et seq., is whether McQueeney's Sea Service Records which bore significantly on his damage claim were sufficiently authenticated by circumstantial evidence without the testimony of a witness. The district court excluded the evidence of subornation of perjury and the Sea Service Records, but we conclude that it erred.
Having reached these conclusions, we are confronted with the third evidentiary question of this case, which arises under Fed. R. Evid. 103(a): what standard of review should a court use in analyzing claims of nonconstitutional harmless error in civil suits? We hold that a court can find that such errors are harmless only if it is highly probable that the errors did not affect the outcome of the case. Applying that standard to the facts here, we find that the errors of the trial court in this case were not harmless. Hence we reverse its judgment and remand for a new trial.*fn1
A. Plaintiff's Accident, His Lawsuit, and the Deposition of Mauro De la Cerda
Appellee McQueeney was a second officer on the T T WILLIAMSBURG, a supertanker owned by appellant Wilmington Trust Company and operated by Anndep Steamship Corporation. McQueeney claims that on March 20, 1981, while the WILLIAMSBURG was docked at Hounds Point Scotland, he was knocked to the deck while manning a water hose. McQueeney asserts that his fall was caused by both overpressure of the hose and by oil that had been spilled on the deck, making firm footing impossible, and that as a result of his accident, he suffered a herniated cervical disc. He brought this suit in June, 1982 in the district court for the Eastern District of Pennsylvania. because the case arose under the Jones Act, 46 U.S.C. § 688 et seq. (1982), jurisdiction was predicated upon 28 U.S.C. § 1333 (1982). The district court conducted a jury trial at the end of which the jury awarded plaintiff a verdict of $305,788.00 against the two defendants. Judgment was entered in the same amount, and the defendants' motions for a new trial and for relief from the judgment were denied. The present appeal followed.
At trial, McQueeney was his only witness on the issue of liability. On the day the trial was scheduled to begin, however, McQueeney's counsel informed the court that he had just located an eyewitness to the accident, a fellow seaman of McQueeney's named Mauro De la Cerda, who was on board a ship in Freeport, Texas, and was therefore not able to appear as a witness. Counsel requested permission to depose De la Cerda.
The district court granted plaintiff's counsel permission to depose De la Cerda on the conditions that (1) defense counsel be given an opportunity to speak with De la Cerda before deciding whether to travel to Texas, and (2) plaintiff pay costs of defense counsel's trip to Texas if defense counsel chose to make the trip. Defense counsel spoke with De la Cerda by telephone that afternoon and chose to go to Houston. The appropriate arrangements were made, trial was recessed, and the next day De la Cerda was deposed in Houston. His testimony corroborated McQueeney's in all significant respects. Defense counsel, claiming to have been surprised by the deposition testimony because De la Cerda had allegedly told him a different version with respect to several significant facts in their telephone conversation, cross-examined De la Cerda about his statements. However, on both direct and then redirect examination at the deposition, De la Cerda either denied making any statements that contradicted his deposition testimony or testified that his statements of the night before were incorrect and that his current statements were accurate.
When the parties returned to trial, defense counsel moved for leave to withdraw his appearance so that he could testify and impeach De la Cerda's deposition testimony, which he presumed plaintiff would offer at trial. Defense counsel also listed plaintiff's counsel and his associate as witnesses. After a colloquy in the chambers of the district court, plaintiff's counsel and his associated signed affidavits stating that they had not discussed De la Cerda's testimony with him prior to his deposition. The court thereupon denied the counsel's motion for leave to withdraw.
B. Evidence of the Falsity of De la Cerda's Deposition, Plaintiff's Decision Not to Offer it, and the District Court's Ruling.
The trial resumed, and McQueeney took the stand. His testimony lasted several days. During cross-examination, and after court had adjourned for the day, defense counsel received crew lists from his client. The lists reflected that De la Cerda had not joined the crew of the WILLIAMSBURG until three months after the alleged accident. The lists proved, therefore, that De la Cerda's "eyewitness" testimony that he had given at his deposition had been fabricated. The next morning, defense counsel brought this information to the attention of the court in a discussion in chambers. After reviewing the crew lists, plaintiff's counsel immediately stated his intention not to use the deposition.*fn2 Defense counsel rejoined that he intended to use the deposition to show fraud on the court. Plaintiff's counsel responded that, so long as he was not using the deposition himself, and so long as there was no evidence that McQueeney had perjured himself on the stand, there had been no fraud and the deposition was irrelevant. The district court agreed with plaintiff's counsel and stated that it would not receive the deposition and the crew lists into evidence.
The district court did not articulate the basis for its ruling at trial. However, as appears from the colloquy at the time, the district court felt that so long as the deposition was not introduced by plaintiff, any perjury associated with the deposition was irrelevant to the suit at bar.*fn3 That this was the court's thinking is evident from its opinion denying defendant's post-trial motion for relief from the judgment or, in the alternative, a new trial. In support of the motion, defendants argued that it was reversible error to bar the deposition and crew lists, but the court ruled that the deposition and crew lists were either irrelevant or only minimally relevant:
It is questionable if Mr. De la Cerda's testimony is even relevant, since defendant seeks admission for the mere purpose to impeach and not for the substance of the testimony. Certainly, the confusion of a person's recollection brings little to show whether or not a set of facts occurred in a specific manner. Such testimony would confuse and mislead the jury, because what is at issue here is whether Mr. De la Cerda can remember or has such knowledge. To admit such testimony would not be for any probative value but merely to prejudice the jury against the plaintiff. Surely the probative value of such testimony would be minimal at best and is outweighed by the severe prejudice it would cause at the time of trial.
Thus the court may fairly be said to have excluded the evidence as either irrelevant under Fed. R. Evid. 401, or as relevant but misleading or unfairly prejudicial, in accordance with Fed. R. Evid. 403.*fn4
C. McQueeney's Sea Service Records
During discovery, the defendants requested copies of plaintiff's Sea Service Records. Sea Service Records are official records that the Coast Guard requires seamen on merchant ships to fill out at the end of each voyage. 46 C.F.R. § 14.10-5. Each entry records the time and place that the seaman began and finished his work, as well as the name of the ship and the nature of the voyage. Each entry, signed by both the seaman and the master of the vessel he is leaving, is reproduced in triplicate, the seaman keeping the original, the master and the Coast Guard getting the copies. Id.
Plaintiff supplied the requested copies, and at the close of its case the defense offered them into evidence. The purpose of introducing the Records was to suggest that McQueeney's future earning capacity, which had allegedly been impaired by his injury, should be based on a severly limited work schedule. Taken together, the records showed that McQueeney had, for the preceding several years, worked only four to six months a year, and defendants contended that the jury should be aware of McQueeney's pared-down work schedule in assessing damages.
The district court, however, refused to admit the copies of the Sea Service Records into evidence on the grounds that their authenticity had not been established, stating that they had to be authenticated by a testifying witness.*fn5 The court told defense counsel that he could put plaintiff back on the stand for the purpose of introducing the records. Although plaintiff took the stand again, defense counsel did not seek to authenticate the Sea Service Records through him. When the defense proffered the Records for a second time just before the district court charged the jury, the court again refused to admit them.
D. Defendant's Post-Trial Motions and Appeal
After the jury's verdict in favor of the plaintiffs, the defendants moved for a judgment n.o.v. or in the alternative for a new trial pursuant to Fed. R. Civ. P. 50(b). Defendants argued that the jury verdict was unsupported by the evidence and that the court had erred in refusing to admit the crew lists, defense counsel's testimony, and De la Cerda's deposition. Several months thereafter, before the district court had reached a decision on their motions, the defendants moved for relief from judgment pursuant to Rule 60(b)(2) on account of newly discovered evidence. In this motion, defendants stated that De la Cerda had recently been deposed in his own personal injury case against the tanker operator, Mauro DeLaCerda v. Anndep Steamship Corp, et al., No. E-118-606 (172d Judicial District, Jefferson County, Texas), in a state court in Texas. According to the papers, De la Cerda testified at the deposition that McQueeney had asked him to testify in ...