IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 95-50834

                          Summary Calendar



WILSON SOPER & ESTATE OF RONALD SOPER,
                                            Plaintiffs-Appellees,

          and

RELIANCE INSURANCE COMPANY,
                                            Intervenor-Plaintiff-
                                            Appellee,

                                versus

SIDNEY MANUFACTURING COMPANY,
                                            Defendant-Appellant.




          Appeal from the United States District Court
                For the Western District of Texas
                          (W-94-CV-221)


                            July 25, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Decedent Ronald Soper and his father sued Sidney Manufacturing

Company on theories of product defect and failure to warn.     Soper,

a construction worker, was installing and constructing a manlift


     *
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
manufactured by Sidney when he fell some 170 feet to his death.

Plaintiffs’ theory of the case was that defendant negligently

manufactured one of the brake “shoes” or “dogs” in the manlift such

that it did not properly align with the lift’s guide rail.                     This

misalignment rendered the shoe’s teeth unable to bite with force

sufficient to keep the manlift from falling.                  Plaintiffs also

alleged that the defendant negligently failed to warn potential

users that they should not rely solely on the emergency braking

system during installation.             Sidney defended on three grounds:

first, that no misalignment in fact existed; second, that Soper

caused the accident by fiddling with the brake shoe; and third,

that Soper’s own failure to wear a safety rope contributed to his

death. A jury found the decedent 40% responsible for his own death

and Sidney 60% responsible.             The jury further found that the

decedent’s estate suffered $250,000 in losses, and that Soper’s

father    lost   an    equal     amount.       After   adjusting   for    certain

stipulated expenses and for the findings of comparative fault, the

district court ordered Sidney to pay plaintiffs $311,415.52, plus

interest.

     Sidney’s appeal rests on three primary arguments.                        First,

Sidney contends that the evidence was insufficient to support a

jury finding of liability on any of the plaintiffs’ theories.

Second,   Sidney      disputes    the   trial    judge’s   decision      to   allow

plaintiffs to present evidence of three prior accidents involving

the failure of the brake shoe system.             Third, Sidney complains of

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the limits the trial judge placed on the cross-examination of

plaintiffs’ expert witness, Bill Stanfield.

      We have little difficulty disposing of Sidney’s first two

arguments.      The testimony of Stanfield, along with the plaintiffs’

other evidence, was sufficient to allow a rational jury to find

that Sidney’s negligent manufacture and failure to warn in part

caused Soper’s death.         In addition, the trial court correctly

concluded that the three prior accidents were relevant to the issue

of whether Sidney had notice of the frailty of its brake shoe

system, a question important to plaintiffs’ failure to warn theory.

      We   find   the    matter   concerning     the    cross-examination     of

Stanfield      close.    Immediately     after    the   accident,    intervenor

Reliance Insurance Company, the workers compensation carrier for

Soper’s employer, hired engineer Stanfield’s firm to investigate

the accident.      Accordingly, from the beginning, Stanfield had a

financial incentive to find that the negligence of someone other

than Soper’s employer caused the accident.               Stanfield ultimately

became the plaintiffs’ primary witness on defect and failure to

warn.      At opening statement and closing argument, plaintiffs’

counsel sought to bolster Stanfield’s credibility by implying that

he   was   a   neutral    investigator     at    the    time   he   reached   his

conclusions.      During opening, counsel stated that Stanfield “was

called, not by the Plaintiffs and not by Sidney, to come down there

and figure out what the heck happened.”            Counsel later added, “We

will pay for him to come and testify and tell you what he did.”                At

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closing, counsel made the same sort of factually true statements

designed to imply that Stanfield reached his conclusions before any

financial incentive to fabricate arose.               Counsel argued,

          We didn’t hire Mr. Stanfield to make his
     investigation. He reached these conclusions before we
     ever met Mr. Soper. We brought him here. We wanted you
     to -- to hear him -- what he had found. We paid for him
     to be here. I’m not going to -- I’m not going to tell
     you that’s not the case.         But he reached these
     conclusions and took these pictures before I ever met
     Wilson Soper. This isn’t something we cooked up for you.
     This is something that was found out immediately after
     the accident.

     Before cross-examination began, defense counsel asked the

court    to   rule   that     he   could      question   Stanfield        regarding

subrogation and the potential for bias inherent in the fact the

workers compensation carrier originally sent Stanfield to the

scene.   Defense counsel in particular referred to the plaintiffs’

opening statement implying Stanfield’s neutrality at the time he

made the investigation. The court responded, “I don’t believe that

there’s any indication that he would have a bias simply because he

was first employed by the insurance company, so I’m going to deny

that request.”

     On cross-examination, the defense elicited from Stanfield

testimony     that   the    plaintiffs       were   paying   his   firm    for   his

testimony, and that he worked full time for an engineering firm

specializing in providing expert testimony.                  In particular, the

following colloquy occurred:

     Q    And now you’ve gone to work for this company called
     AID, right?

                                         4
       A    Yes.
       Q    And they specialize in litigation engineering, that
       is, doing what you’re doing here today, isn’t that right?
       A    Yeah. . . .

Defense    counsel     then     asked     a    further     series      of   questions

emphasizing Stanfield’s extensive experience as an expert trial

witness as well as his financial ties to the plaintiffs.                      Defense

counsel made an offer of proof, but did not object to the quoted

portion of plaintiffs’ closing argument.

       The trial judge’s decision that no potential for bias stemmed

from the fact that Stanfield investigated at the behest of the

workers’ compensation carrier was erroneous.                   The parties agree

that   Texas’s    collateral      source       doctrine    made       the   fact   that

plaintiffs received workers compensation benefits irrelevant to the

issues    of   damages    and    right    to    recover.       Nevertheless,        the

collateral source rule removes only one theory of relevance for

this evidence.         Evidence irrelevant on one issue may well be

relevant on another.           In this context, we find the defendant’s

analogy to Fed. R. Evid. 411 well-taken.                  The first sentence of

this rule renders evidence of liability insurance inadmissible if

offered to     prove     one    issue,    namely,    whether      a    “person     acted

negligently or otherwise wrongfully.”               The rule’s second sentence,

however, clarifies that evidence of liability insurance may well be

admissible to show bias.

       The fact that an expert investigates on behalf of an insurance

company with     an    incentive     to    find   someone    else       negligent    is


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relevant to show bias.           An investigator working for a workers

compensation carrier has a financial motive to find, as Stanfield

did, that someone other than the employer negligently caused an

accident.     The potential for bias arises as soon as relationship

between the expert (or his firm) and the carrier arises.

      In   this    case,    Stanfield       was    the   plaintiffs’    expert    on

causation, defect, and failure to warn. His financial incentive to

lie or to construe the evidence in a manner favorable to the

carrier,    and    favorable    to    the    plaintiff,       was   relevant.     As

plaintiffs point out, Fed. R. Evid. 403 gives the trial court broad

latitude regarding the admission of evidence, and proof of the

receipt of workers compensation benefits carries the danger that

the jury will draw a prohibited inference regarding the damages a

deserving plaintiff will receive.                 Had the trial court exercised

its   discretion     under     Rule   403    and     found    the   evidence    more

prejudicial       than    probative,    our        decision    would    be   rather

straightforward.         But the record includes no indication that the

trial court exercised its discretion. On the contrary, the court’s

comments make clear that it thought the evidence irrelevant and

therefore inadmissible under Fed. Rs. Evid. 401-02.                      We cannot

agree.

      We do agree with the plaintiffs, however, that this error did

not affect Sidney’s substantial rights.                  See Fed. R. Civ. P. 61;

Fed. R. Evid. 103(a).            The defendant elicited testimony from

Stanfield that he was being paid several thousand dollars by the

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plaintiffs at the time of trial, and that he worked as a litigation

expert full-time.   Defense counsel used this evidence at closing,

arguing that Stanfield was not an independent witness.           Moreover,

Reliance’s   recovery   was   only   for   $19,025.88,   its   subrogation

interest.    In light of this evidence and argument, we do not

believe that the disclosure of still another financial incentive

for Stanfield to stretch the evidence in plaintiffs’ favor would

have affected the jury’s verdict. No reasonable possibility exists

that this error affected Sidney’s substantial rights. See Miles v.

Olin Corp., 

, 1229 (5th Cir. 1991); Liner v. J.B.

Talley & Co., 

, 331 (5th Cir. 1980).         Accordingly, we

find the trial court’s error harmless.

     AFFIRMED.




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