NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STACY L. WEBER,                                 No.    18-17177

                Plaintiff-Appellant,            D.C. No.
                                                2:15-cv-01829-WBS-AC
 v.

TMG LOGISTICS, INC.; DAVINDER                   MEMORANDUM*
SINGH MINHAS,

                Defendants-Appellees.


STACY L. WEBER,                                 No.    18-17236

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cv-01829-WBS-AC
 v.

TMG LOGISTICS, INC.; DAVINDER
SINGH MINHAS,

                Defendants-Appellants.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   William B. Shubb, District Judge, Presiding

                     Argued and Submitted February 13, 2020
                            San Francisco, California


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: RAWLINSON and CALLAHAN, Circuit Judges, and S. MURPHY,**
District Judge.

      Plaintiff-Appellant/Cross-Appellee, Stacy Weber (“Weber”) appeals the

district court’s judgment and denial of her motion for a new trial following a jury

trial in a diversity action filed by Weber for alleged injuries sustained after her car

was rear-ended by a tractor-trailer owned and operated by Defendants-

Appellees/Cross-Appellants, TMG Logistics, Inc. and Davinder Singh Minhas

(collectively, “TMG”). TMG cross-appeals, alleging that the district court erred in

denying its motion for fees under Fed. R. Civ. P. 37(c). We have jurisdiction

under 28 U.S.C. § 1291 and affirm the district court on all issues raised.1

      1. Weber first contends that the district court abused its discretion in

denying her motion for a new trial because the jury’s verdict was against the clear

weight of the evidence. To warrant a reversal of the district court’s denial of her

motion for a new trial based on insufficiency of the evidence, Weber must show

that “the record contains no evidence in support of the verdict.” See Hemmings v.

Tidyman’s Inc., 

, 1190 (9th Cir. 2002) (citation omitted). Here,

there was some evidence from which the jury could conclude that the collision was



      **
             The Honorable Stephen J. Murphy, III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
      1
        Because the parties are familiar with the facts and issues in this case, we do
not recite them in detail here.

                                           2
not a substantial factor in causing Weber’s spinal injuries—namely, the evidence

that Weber had spinal problems prior to the collision and the expert disputes

regarding the extent of Weber’s spinal injuries and whether they were caused or

exacerbated by the collision. We also find unpersuasive Weber’s argument that the

jury award for the stipulated amount of past medical expenses was inconsistent

with its finding that the collision was not a substantial factor in causing injury to

Weber’s spine. We therefore affirm the district court’s denial of Weber’s motion

for a new trial.

      2. The district court also did not abuse its discretion in admitting evidence

of Weber’s family wealth and history of prior investments. Weber alleges that the

district court erred in failing to exclude evidence of (1) a statement from the

“social history” section of a doctor’s intake notes that Weber and her husband were

wealthy from flipping houses and she was not working, and (2) her family’s tax

returns. The district court reasonably found that this evidence was relevant to

rebut Weber’s economic damages claim (i.e. loss of wages / loss of earning

capacity), and thus its admissibility depended largely on whether Weber would

ultimately pursue that claim at trial. Because Weber raised her claim for economic

damages, the district court’s decision to allow the evidence was reasonable. Even

assuming error, these pieces of evidence likely did not result in prejudice to Weber

when viewed in the context of the entire trial and the jury’s verdict.


                                           3
      3. Weber argues that the court abused its discretion when it failed to

exclude, or at least limit, the testimony of Dr. Knapp, the defendants’

biomechanics expert. We disagree. First, the district court did not abuse its

discretion when it concluded that Dr. Knapp—who had a Ph.D. in biomechanics

and had published a book on forensic biomechanics, amongst other

qualifications—was sufficiently qualified to testify as an expert under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 

(1993). The district court

conducted a thorough review of Dr. Knapp’s qualifications and potential testimony

and correctly observed that biomechanics experts have generally been allowed to

testify under Daubert.

      Furthermore, the district court did not abuse its discretion in allowing Dr.

Knapp to opine on whether Weber’s injuries were caused by the collision. Courts

have differed as to whether biomechanics experts can testify on specific causation,

and some courts have recognized that such opinion testimony is “a product of

reliable principles and methods.” Fed R. Evid. 702(c); see Allen v. State Farm

Mut. Auto. Ins. Co., No. 3:15-CV-0019-HRH, 

, at *3 (D. Alaska

Aug. 2, 2016). Thus, it was not unreasonable for the district court to allow Dr.

Knapp to testify on injury causation once defense counsel laid a foundation

regarding the reliability of Dr. Knapp’s methodology for his opinion.

      4. Weber argues that the district court should have granted her a new trial


                                          4
based on the misconduct of defense counsel. We find that the comments made by

defense counsel during closing argument, in which he accused Weber and her

counsel of “planting” and “manufacturing” evidence, were unprofessional and

potentially improper.2 However, to warrant reversal on grounds of attorney

misconduct, “the flavor of misconduct must sufficiently permeate an entire

proceeding to provide conviction that the jury was influenced by passion and

prejudice in reaching its verdict.” Standard Oil Co. v. Perkins, 

, 388

(9th Cir. 1965). While we do not condone the comments by defense counsel, they

were generally confined to his closing argument and did not permeate the entire

trial. We are also unconvinced that the comments impacted the jury’s ability to

give proper consideration to the evidence and the issues, given its mixed verdict

and award of damages. Thus, the district court did not abuse its discretion when it

declined to find that defense counsel’s statements warranted a new trial.

      5. Finally, the district court did not err in denying TMG’s motion for

attorneys’ fees under Fed. R. Civ. P. 37(c) to recover the fees and costs they

incurred in defending against Weber’s wage loss and loss of earning capacity

claim. Rule 37(c) requires the motion to be granted unless certain exceptions are

met, such as “the party failing to admit [a matter that has since been proven true]



      2
        We also think TMG’s counsel should not have endeavored to justify the
propriety of these statements at oral argument.

                                          5
had a reasonable ground to believe that it might prevail on the matter.” Fed. R.

Civ. P. 37(c)(2). The district court did not abuse its discretion in concluding that

“plaintiff’s evidence, while ultimately not persuasive, was a sufficient basis for a

reasonable belief that she would prevail at trial on her lost wages and loss of

earning capacity claims.” The district court reached this conclusion after finding

that Weber “did produce some evidence tending to show that she would or could

have earned more had she not suffered the alleged injuries she claims were caused

by the accident at issue in this case” and that the success of Weber’s claim “hinged

in part on the jury’s credibility determination” as to Weber and her witnesses.

These findings are supported by the record. As such, we affirm the district court’s

denial of TMG’s Rule 37(c) motion.

      AFFIRMED.




                                          6
                                                                   FILED
Weber v. TMG Logistics, Inc., Case Nos. 18-17177 and 18-17236
                                                                   FEB 27 2020
Rawlinson, Circuit Judge, concurring:
                                                                MOLLY C. DWYER, CLERK
                                                                 U.S. COURT OF APPEALS
     I concur in the result.




                                     1