Red v. Baum, et al

* Pursuant to 5th Cir. R. 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not be published and is not precedent except under the limited circumstances set forth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 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 3, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 03-50642
Summary Calendar
__________________________
In the Matter of: ERIC RED
Debtor,
-----------------------------------------
ERIC RED,
Appellant,
versus
WILLA BAUM; NILDA ROOS,
Appellees.
___________________________________________________
Appeal from the United States District
Court for the Western District of Texas
(No. A-03-CV-160-SS)
___________________________________________________
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Debtor Eric Red (“Red”) appeals the district court’s order affirming the bankruptcy

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1 Syncope is defined as “[a] brief loss of consciousness caused by a temporary
deficiency of oxygen in the brain; a swoon.” AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE, FOURTH EDITION, available at
http://dictionary.reference.com/search?q=syncope.
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court’s denial of dischargability of certain potential debts owed to Willa Baum and Nilda
Roos (the “Creditors”). Because we find that the district court did not err in upholding the
bankruptcy court’s determination that those debts qualify as exceptions to discharge under
11 U.S.C. § 523(a)(6), we affirm.
I. FACTS AND PROCEEDINGS
On May 31, 2000, in Los Angeles, California, Red was involved in an automobile
collision. At approximately 6:00 p.m., Red was driving a Jeep that rear-ended a white
Honda which apparently had been stopped for some time at a traffic light on Wilshire
Boulevard. Red’s car proceeded to push the Honda into the intersection, and then veered
off to the left, crossed two lanes of oncoming traffic, and crashed into a bar filled with
people, killing two individuals and injuring several others. After crashing into the bar,
Red picked up a piece of broken glass and attempted to commit suicide by slashing his
own neck, but he did not cut any arteries and was then restrained by several onlookers.
The facts surrounding the collision were hotly contested. Red claimed that he
suffered from an episode of syncope,1 and that he was unconscious from the time his Jeep
hit the Honda until the time his Jeep crashed into the bar. Red also maintained that he had
suffered several prior episodes of syncope, though neither his ex-wife nor his doctors were
aware of the incidents. The Creditors, relatives of the decedents, argued that the collisions,

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which occurred on the one year anniversary of Red’s failed marriage to his ex-wife, were
the result of Red’s depressed mental state caused by distress over personal and financial
problems. The parties presented conflicting eyewitness testimony concerning whether Red
was alert and upright, or slumped-over and unconscious when his Jeep careened into the
bar.
The Creditors filed wrongful death claims against Red in California. Red briefly
moved to Austin, Texas, and there filed for bankruptcy protection. The bankruptcy court,
after a trial, found Red’s testimony to be unreliable, agreed with the Creditors that Red
intentionally drove into the bar, and held that the potential debts owed to the Creditors
qualify as exceptions to discharge under 11 U.S.C. § 523(a)(6). The district court affirmed
the bankruptcy court’s decision on similar grounds. Red timely appeals.
II. STANDARD OF REVIEW
This Court “review[s] the decision of the district court by applying the same
standard to the bankruptcy court’s findings of fact and conclusions of law as the district
court applied. A bankruptcy court’s findings of fact are subject to clearly erroneous
review, while its conclusions of law are reviewed de novo.” In re Jack/Wade Drilling,
Inc., 258 F.3d 385, 387 (5th Cir. 2001). “The interpretation of Section 523(a)(6) is a question
of law and is reviewed de novo.” In re Williams, 337 F.3d 504, 508 (5th Cir. 2003).
“We apply an abuse of discretion standard when reviewing a trial court’s decision
to admit or exclude expert testimony. The district court’s ruling will be sustained unless
manifestly erroneous.” Tyler v. Union Oil Co. of California, 304 F.3d 379, 392 (5th Cir.

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2002) (citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999) and Boyd v. State
Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir.1998)).
III. DISCUSSION
A. Whether the facts as found by the bankruptcy court support an exception to
discharge under § 523(a)(6).
Section 523(a)(6) provides no discharge for any debt “for willful and malicious
injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. §
523(a)(6). This Court has interpreted “willful and malicious injury” to mean that the
debtor must be aware that the act will result in “either an objective substantial certainty
of harm or a subjective motive to cause harm.” In re Miller, 156 F.3d 598, 606 (5th Cir.
1998). Because debtors generally deny that they had a subjective motive to cause harm,
most cases that hold debts to be non-dischargable do so “under the objective standard, if
[the debtor’s] acts were substantially certain to result in injury . . . .” Id. at 604.
Red argues that the bankruptcy court’s finding that he intentionally drove into the
bar does not support the legal conclusion that the debts are non-dischargable under §
523(a)(6). That finding, he claims, does not demonstrate an intent to harm anyone. While
the bankruptcy court’s finding cannot establish Red’s subjective intent, it does demonstrate
an objective substantial certainty of injury. The bankruptcy court found that Red
intentionally drove into the bar at 6:00 p.m.—happy hour—a time when one would expect
a bar to be crowded. Red himself admitted during the trial that if a person were to drive
into a crowded restaurant he “would know that [he] would cause catastrophic injuries or

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2 This Court will not address the other factual determinations that Red contests
(e.g., that Red was filled with “uncontrollable rage” when he drove into the bar)
because they are not essential to the bankruptcy court’s ultimate conclusion.
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death inside the restaurant.” Intentionally driving into a bar during happy hour creates
an objective substantial certainty of injury.
Red relies on this Court’s decision in In re Delaney, 97 F.3d 800 (5th Cir. 1996), to
insulate himself from a conclusion of willfulness; however, his reliance is unwarranted.
In Delaney we held that debts incurred when a debtor accidentally fired a gun while
tapping the gun on the windshield of a car were dischargable. Id. at 802-03. We explained
that:
Here, [the debtor] unquestionably acted intentionally when he loaded the shotgun,
took it with him to the confrontation with [the creditor], and, with his finger on the
trigger, twice tapped the barrel of the gun on the windshield of the car to get [the
creditor’s] attention. In contrast, however, the firing of the gun was neither
deliberate nor intentional; on the contrary, it was wholly unintentional, even though
possibly not wholly unforeseeable. . . . [T]he injury was not “willful and malicious”
on the part of [the debtor]: He neither intended the injury nor intentionally took
action that was “substantially certain” to cause the injuries that [the debtor]
suffered.
Id. Unlike in Delaney, the bankruptcy court here found that Red did intentionally commit
an action—driving into a crowded bar—that was “substantially certain” to cause harm.
Under the facts that the bankruptcy court found, discharge was inappropriate under §
523(a)(6).
B. Whether the bankruptcy court’s factual determinations were clearly erroneous.
Red challenges the bankruptcy court’s finding that he was conscious and
intentionally drove into the bar.2 Factual findings are not to be disturbed unless the court

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of appeals is “left with the definite and firm conviction that a mistake has been made.”
Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 534 (5th Cir. 2003).
“Where there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous. This is so even when the district court’s findings do not
rest on credibility determinations, but are based instead on physical or documentary
evidence or inferences from other facts.” Anderson v. Bessemer City, 470 U.S. 564, 574
(1985) (citation omitted).
As mentioned supra, the bankruptcy court considered conflicting eyewitness
testimony concerning Red’s demeanor as his Jeep was speeding into the bar. Several
witnesses claimed that he was alert and sitting upright, while others thought that he was
hunched over and perhaps unconscious. Additionally, the Creditors’ expert, Dr. Thomas
Hedge (“Hedge”), a medical doctor, testified that a person experiencing an episode of
syncope will have his body go limp and likely be unable to press down on a car’s
accelerator. However, on cross-examination, Hedge admitted that if a person’s body were
leaning forward when an episode of syncope occurred, that might create enough pressure
on the accelerator to move the car.
Even if we were to agree with Red that it is arguable whether he was conscious, the
evidence in the record does not approach that which would be needed to find that the
bankruptcy court’s determination was clearly erroneous. That court was in the best
position to assess witness credibility, and its finding that Red was conscious and
intentionally drove into the bar does not leave us with the “definite and firm conviction

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3 It is questionable whether the net of Hedge’s testimony was harmful to Red.
Although Hedge testified that a person suffering an episode of syncope would not be
able to press down on the accelerator, he also testified that if a person were leaning
forward and suffered an episode of syncope, that person might slump over the steering
wheel and his body-weight might depress the accelerator pedal. Excluding Hedge’s
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that a mistake has been made.” Otto Candies, 346 F.3d at 534. The bankruptcy court’s
factual findings were not clearly erroneous.
C. Whether the bankruptcy court erred in admitting the testimony of the Creditor’s
expert.
Red finally argues that the bankruptcy court erred in admitting the testimony of the
Creditors’ expert, Hedge. The trial judge’s decision whether to admit expert testimony is
reviewed for abuse of discretion. Carroll v. Morgan, 17 F.3d 787, 789 (5th Cir. 1994). “A
trial judge sitting without a jury is entitled to greater latitude in the admission or exclusion
of evidence. In a bench trial, reversal is only warranted if all of the competent evidence
is insufficient to support the judgment, or if it affirmatively appears that the incompetent
evidence induced the court to make an essential finding which it otherwise would not have
made.” Southern Pacific Transp. Co. v. Chabert, 973 F.2d 441, 448 (5th Cir. 1992).
Harmless error is not a ground for reversal. See id.
Red’s only cognizable claim is that Hedge was not qualified to testify about the
effect of an episode of syncope on Red’s ability to depress the accelerator pedal. It seems
that Hedge’s testimony on this issue simply combined his medical knowledge (which is
not disputed) with common knowledge about driving a car. The bankruptcy court did not
abuse its discretion in admitting this testimony.3

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testimony would not necessarily have been any more beneficial to Red than to the
Creditors.
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Alternatively, if we were to assume that that court did abuse its discretion in
admitting Hedge’s testimony, such error would have been harmless. Even without this
testimony, there was sufficient evidence for the bankruptcy court to find that Red
intentionally drove into the bar. Any error associated with the admission of the expert’s
testimony is therefore harmless.
IV. CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.

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