Filed: Sep. 19, 2008
Latest Update: Mar. 02, 2020
Summary: 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2008 Decisions States Court of Appeals for the Third Circuit 9-19-2008 Hirst v. Inverness Hotel Corp Precedential or Non-Precedential: Precedential Docket No. 07-1277 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Hirst v. Inverness Hotel Corp" (2008). 2008 Decisions. Paper 438. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/438 This decision is brought to you for free and open access by the O
Summary: 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2008 Decisions States Court of Appeals for the Third Circuit 9-19-2008 Hirst v. Inverness Hotel Corp Precedential or Non-Precedential: Precedential Docket No. 07-1277 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Hirst v. Inverness Hotel Corp" (2008). 2008 Decisions. Paper 438. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/438 This decision is brought to you for free and open access by the Op..
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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Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Hirst v. Inverness Hotel Corp" (2008). 2008 Decisions. Paper 438.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/438
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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
Ohio 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
