BEFORE: KEITH and MERRITT, Circuit Judges and ALLEN.*fn*
The appellants, Cuzco Precision Products, Inc. (and three other separately named businesses, all apparently functioning jointly) filed suit in the District Court for the Eastern District of Michigan to recover upon an insurance policy issued by Aetna for damages incurred as a result of a fire. Aetna defended on the ground that the fire resulted from arson involving at least one of the principles of Cuzco. Following a jury trial, a verdict was returned on November 18, 1981, in favor of the defendant. The appellants perfected this appeal. For the reasons set forth below, we affirm.
Cuzco is insured against fire by Aetna. On May 7, 1978 Cuzco's premises, inventory, records and equipment were damaged by fire. The matter proceeded to trial where issues arose regarding the testimony and competency of certan expert witnesses, as well as the propriety of jury instructions pertaining to the standard of proof.
During the course of trial, John VanHaaron was called by Aetna to offer expert testimony as to the origin of the fire. VanHaaron was employed by Walter O. Jacobs & Associates, where he had begun training as a fire investigator on May 1, 1978. Evidence at trial indicated that VanHaaron had investigated the Cuzco fire under the supervision of another Jacobs employee on May 17, 1978. However, that supervisor apparently died prior to trial. Aetna offered VanHaaron to the court as an expert after establishing that he had investigated some 120 fires between May 1978 and October 1979. The court overruled Cuzco's objection to VanHaaron's qualifications as an expert and permitted him to testify.
Cuzco then sought to produce an expert witness to testify on rebuttal. Cuzco's expert, Fred Muller of the Livingston County Arson Task Force, had also investigated the scene to some extent, but had filed a report stating that the origin of the fire was undetermined. The court denied Cuzco's request to present Muller as an expert witness since Cuzco had failed to include him prior to trial among its list of witnesses. Additionally, the court questioned whether Muller's proffered testimony would largely rebut Aetna's evidence.
At the conclusion of the evidence, Cuzco requested that the court instruct the jury that Cuzco was presumed to be innocent of arson or fraud unless guilt had been proven by a preponderance of the evidence, and that circumstantial evidence may be deemed sufficient to prove arson only under certain qualifications. The court declined to give the requested instructions. Thereafter, the jury returned a verdict of "no cause of action" and judgment was entered in favor of the defendant.
On appeal, Cuzco challenges the court's rulings with respect to the testimony of certain witnesses. Though recognizing that the allowance or exclusion of expert testimony is a matter within the discretion of the trial court, Salem v. U.S. Lines Co., 370 U.S. 31 (1962); Krenz v. Union Carbide, 365 F.2d 113 (6th Cir. 1966), Cuzco argues that the trial court abused that discretion.
VanHaaron, Cuzco argues, should not have been permitted to testify because he had only completed sixteen days of a six month fire investigation training program when he "investigated" the Cuzco fire on May 17, 1982. Cuzco also contends that VanHaaron's report is unreliable since he did not view the fire scene until ten days after the fire. Additionally, Cuzco challenges the fact that VanHaaron was permitted to testify as to the expert background of his supervisor (thereby improperly but effectively bolstering his own qualifications). In this regard, VanHaaron was also permitted to testify about what his supervisor did in investigating the fire scene. The witness's inexperience, according to Cuzco, is substantially similar to the facts of Ball v. E.I. DuPont DeNemours, 519 F.2d 715 (6th Cir. 1975). In Ball the Sixth Circuit determined, contrary to the district court, that the proffered witness was incompetent to testify as an expert because he had only once previously worked in the field of question (blasting cap industry). The Ball case, however, is distinguishable from the present action. In Ball, the court found that the proposed expert's opinions as to the explosive industry prior to 1949 were based "on little more than his own beliefs."
In contrast, the present record reveals that VanHaaron received extensive training in fire investigations throughout his employment with Jacobs & Associates from May 1978 - October 1979. Clearly VanHaaron possessed the requisite expert qualifications by the time of trial. The fact that he may not have been an expert at the time of viewing the fire scene is not determinative since "his expertise was manifest by the time he testified. . . ." Fabro Design Corp. v. Raythem Co., 532 F.2d 758, 762 (1st Cir. 1976). The district court acted within the bounds of its discretion in admitting VanHaaron's testimony. Such expert testimony is admissible if it is likely to assist the trier of fact in determining the truth. See Fed.R.Evid. 702; United States v. Barker, 553 F.2d 1013 (6th Cir. 1977).
Secondly, Cuzco argues that the district court erred in refusing to allow Muller to testify in rebuttal. Cuzco alleges that the district court reversed itself after a nine-day recess and after initially deciding that Muller's testimony could be used. Cuzco implies that the trial judge reversed himself because he was experiencing a personal family crisis (eventual death of father) and did not wish to prolong the trial. Muller was offered by Cuzco to demonstrate that examination of the fire scene more than four days after the fire inevitably results in misleading conclusions (e.g. here VanHaaron placed emphasis on certain partially filled paint thinner cans that he saw ten days after the fire which Muller found to be full when he discovered them immediately after the fire). Also, Muller would have testified that a furnace on the premises had fallen from the ceiling to the floor, and that the cause of the fire (electrical or furnace) could not possibly be determined. He alleges this was true, since a warehouse door was open, and since the specific area within the premises where the fire started was not determinable.
Cuzco adds that Muller's testimony should not have been precluded by the district court on the ground that Muller had not been listed on Cuzco's pre-trial witness list. In this regard, Cuzco argues that such a ruling was improper because Aetna had not provided Cuzco with a complete copy of VanHaaron's report, which would have revealed his inexperience. Similarly, Cuzco argues that the Livingston County Sheriff's Department had failed to provide a complete copy of Muller's report -- omitting that part of the report that would have provided a basis for rebutting VanHaaron's testimony. Thus Cuzco alleges it did not discover these matters until after VanHaaron had testified at trial. Moreover, Cuzco contends that precluding Muller from testifying while allowing an unlisted Aetna witness to testify was manifestly unfair.
Under Fed.R.Civ.P. 16, a court may properly prevent a non-disclosed witness from testifying when the party wishing to call the witness has failed to abide by the court's pre-trial order to disclose the names of its witnesses. Cuzco simply failed to conduct a proper investigation in preparation for trial. Additionally, Cuzco was not prejudiced by the absence of Muller's testimony since it clearly would have been cumulative. In its summation, Cuzco repeatedly argued to the jury precisely the point about which Muller would have testified, i.e., that the cause of the fire was not determinable.
Finally, Cuzco contends that the district court erred in refusing to instruct the jury as Cuzco requested. Specifically Cuzco requested an instruction that it was presumed to be innocent of arson absent compelling and persuasive circumstantial evidence to the contrary.
Cuzco, however, is now precluded by Fed.R.Civ.P. 51 from complaining about the jury instructions due to its failure to object after the instructions were given. Though this court may reverse on the grounds of plain error where jury instructions are likely to cause a miscarriage of justice, there is no plain error apparent in this case. See United States v. Buffa, 527 F.2d 1164 (6th Cir.), cert. denied, 425 U.S. 936 (1975). The requested instruction was unncessary since Aetna established by abundant evidence that the fire was the result of Cuzco's action; and it did so under the normal standard applicable to proof of an affirmative defense -- namely, a preponderance of the evidence. The standard "presumption of innocence" equates to "beyond a reasonable doubt" which is an unduly high and inappropriate standard in such civil cases. And as regards circumstantial evidence, the court repeatedly admonished the jury as to the meaning of circumstantial evidence and the impropriety of drawing other than "reasonable inferences" therefrom.
Upon consideration of the record, briefs and arguments of counsel, the judgment entered by the Honorable Charles W. Joiner, United States District Court for the Eastern District of Michigan, is affirmed.
* Hon. Charles M. Allen, Chief U.S. District Judge, Western District of Kentucky, sitting by designation.