Galen Beck, as representative of the estate of Eugene Beck; and SHARON BECK v. Edward A. Haik, individually

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0252P (6th Cir.)
File Name: 04a0252p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GALEN BECK, as
representative of the estate of
Eugene Beck; and SHARON
BECK,
Plaintiffs-Appellants,
v.
EDWARD A. HAIK,
individually and officially for
Manistee County; and
ROBERT C. HORNKOHL,
individually and officially as
Director of Public Safety for
City of Manistee,
Defendants,
MANISTEE COUNTY; and CITY
OF MANISTEE,
Defendants-Appellees.
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No. 01-2723
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 97-00533—Robert Holmes Bell, Chief District Judge.
Argued: June 18, 2003
2 Beck, et al. v. Haik, et al. No. 01-2723
*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Decided and Filed: July 29, 2004
Before: BOGGS, Chief Judge; GILMAN, Circuit Judge;
and MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: Mark R. Bendure, BENDURE & THOMAS,
Detroit, Michigan, for Plaintiffs. Joseph Nimako,
CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia,
Michigan, Mary Massaron Ross, PLUNKETT & COONEY,
Detroit, Michigan, for Defendants. ON BRIEF: Mark R.
Bendure, BENDURE & THOMAS, Detroit, Michigan, Grant
W. Parsons, PARSONS, RINGSMUTH, Traverse City,
Michigan, for Plaintiffs. Joseph Nimako, CUMMINGS,
McCLOREY, DAVIS & ACHO, Livonia, Michigan, Mary
Massaron Ross, PLUNKETT & COONEY, Detroit,
Michigan, for Defendants.
_________________
OPINION
_________________
BOGGS, Chief Judge. The plaintiffs in this 42 U.S.C.
§ 1983 civil rights suit appeal from the judgment entered
against them after a jury verdict for the defendants. The
plaintiffs challenge the correctness of several of the district
court’s rulings on the admission of evidence and other trial
matters, and argue that the effect of these rulings substantially
prejudiced their case. Though we do not accept all of the
plaintiffs’ contentions, we agree that a number of errors
occurred, and that these were sufficiently prejudicial to
require a new trial. We therefore reverse and remand.

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No. 01-2723 Beck, et al. v. Haik, et al. 3
I
This case arose from the June 28, 1995, drowning death of
Eugene Beck, who dropped from a bridge (apparently after
jumping) into the Manistee River in Manistee, Michigan. The
plaintiffs contend that Mr. Beck died because officials of the
City and County of Manistee, pursuant to a municipal policy,
prevented qualified civilian rescue divers on the scene from
saving him, even though the city and county provided no
meaningful alternative rescue service of their own. In an
earlier, unpublished, opinion, Beck v. Haik, No. 99-1050,
2000 WL 1597942 (6th Cir. Oct. 17, 2000), we held that these
allegations, if proven, were jointly sufficient to establish a
claim under 42 U.S.C. § 1983 for violation of Beck’s due
process rights under the Fourteenth Amendment. 2000 WL
1597942 at *4. We upheld the district court’s grant of
summary judgment dismissing plaintiffs’ other claims. Id. at
*9.
On remand, the district court held a seven-day trial. Each
element of the plaintiffs’ case was significantly contested:
(1) whether the defendants city and county had a policy that
prevented private rescuers from assisting Mr. Beck;
(2) whether the rescue services made available by the
defendants were sufficiently effective to constitute a
“meaningful alternative” to private rescue; and (3) whether
the Becks were able to show causation, by establishing that
Mr. Beck would likely have lived if private rescuers had been
allowed to dive after him.
The following facts emerged at trial. In 1993, the Manistee
County Sheriff’s Department formed a county dive team. The
sheriff’s department concluded after consultation with an
expert that the county was too large to permit this dive team
to be held out to the public as a “rescue” team; instead, it was
deemed a “recovery” team. There was evidence that this term
connoted the simple recovery of bodies, rather than the rescue
and resuscitation of drowning victims. For a time, the only
member of the dive team was then-deputy sheriff Dale
4 Beck, et al. v. Haik, et al. No. 01-2723
1Sheriff Haik was originally named in the Becks’ complaint as a
defendant in his individual capacity. The district court granted him (and
the other individual defendant, Chief Hornkohl) summary judgment on
the ground of qualified immunity. W e affirmed that ruling in the Becks’
previous ap peal. Beck, 2000 WL 1597942 at *7.
Kowalkowski, who was not formally trained or certified in
dive rescue. By the time of Mr. Beck’s plunge, it included
several officers who were certified in diving, but not in dive
rescue.
After a fatal drowning accident in the Manistee River in
1993, a group of trained civilian divers formed a private
rescue organization called the Manistee Search and Rescue
Dive Team (“MSRDT”). The MSRDT entered into a contract
to provide rescue and recovery services to the City of
Manistee as needed. The members of the MSRDT carried
pagers, which the city authorities could use to summon the
MSRDT. A protocol developed whereby the City would page
the county dive team first in case of a water emergency, and
would call out the MSRDT if the county team was likely to
have difficulty responding promptly. However, a city
memorandum on this subject, produced at trial, included a
handwritten annotation that “Sheriff Ed” would “decide”
when the MSRDT would be called out – apparently a
reference to then-Sheriff Edward Haik.1
The plaintiffs presented evidence that some local officials
were hostile to the MSRDT’s activities. Art Krause, the
founder of the MSRDT, testified that Sheriff Haik personally
told him that he would be subject to arrest if he interfered
with the county’s operations at a water accident scene.
Michael Mosack, a Michigan State Police trainee and also a
member of the MSRDT, likewise testified that Haik
threatened him with criminal charges if he entered the water
at an accident scene. Fred LaPoint, a City of Manistee
firefighter and another MSRDT member, testified that he had
seen a memo from Manistee County Sheriff Edward Haik
stating that all water accident scenes were to be treated as

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No. 01-2723 Beck, et al. v. Haik, et al. 5
“crime scenes,” and that anyone who entered such a scene
without his permission would be subject to arrest. While no
official copy of the alleged memo was produced at trial,
several other witnesses acknowledged that they had either
seen or heard of such a memo. Sergeant Douglas Cermak of
the Sheriff’s Department dive team testified that he had seen
a “crime scene” memo, and that Haik had instructed him to
take “appropriate action” if the MSRDT interfered with a
county dive operation. On the other hand, the defendants
presented testimony from several local township fire chiefs
who worked with Sheriff Haik, and stated that they had never
heard of such an “arrest policy.”
Beck and another man, Mark Sander, plunged into the
Manistee River at approximately 10:07 p.m. on June 28,
1995. A bystander saw their fall and immediately called 911.
The county dispatcher called personnel from the Manistee
Police Department, the Manistee Fire Department, and the
Manistee County Sheriff's Department Dive Team (the
“county dive team”) to the scene.
The Manistee police arrived in time for one of the officers
to see Beck disappear beneath the river’s surface at 10:17
p.m. They notified both Manistee Police Chief Robert
Hornkohl and the county dive team.
The city did not page the MSRDT that night. However,
Michael Mosack, a member of the MSRDT who was a
Michigan State Police trainee and a certified diver, overheard
the original 911 call reporting Beck’s plunge. Mosack
immediately gathered his diving equipment, put on the lower
half of his wet suit, and drove to the scene. Mosack estimated
that he arrived between 10:19 and 10:22 p.m., no more than
five minutes after Beck went under the water. Another
MSRDT diver, Gordon Cole, learned of the situation by
overhearing the dispatcher’s call to the fire department. Cole
drove to the scene with his equipment and arrived shortly
before Mosack did.
6 Beck, et al. v. Haik, et al. No. 01-2723
Firefighter LaPoint also responded to the call. LaPoint
drove to the scene in a city rescue ambulance designated R5.
However, LaPoint testified that shortly after he arrived, he
received another call telling him that R5 had been “released.”
This, he said, implied that the accident was no longer
considered a rescue scene, but was instead a body recovery
scene. LaPoint left the scene shortly thereafter.
Meanwhile, a Coast Guard boat arrived on the scene at
10:27 p.m. The local Coast Guard officer, Chief Timothy
Monck, would later testify in a deposition that the Guard had
learned of the incident by a phone call from a private citizen.
The county dive team also responded to the call. Then-
Sergeant Douglas Cermak, a member of the sheriff’s
department, was driving a patrol car with his partner Jim
Doerning when a call from the dispatcher alerted him that
Beck was in the river. Cermak proceeded to the sheriff’s
office, where he and Doerning gathered their diving
equipment. Cermak also put on part of his wet suit. The men
left the sheriff’s office at 10:33 p.m. Cermak estimated that
it took him only a couple of minutes to drive from the
sheriff’s office to the river and the scene of the accident.
At the scene, a partially suited-up member of the MSRDT
– apparently Mosack – approached Cermak and asked if the
county team needed help. Cermak told him that the county
“had everything under control.” Moreover, Mosack testified
that he approached Chief Hornkohl and told him that the
MSRDT was ready to attempt a rescue. He testified that
Hornkohl consulted with Sheriff Haik by radio, and then
instructed the divers not to enter the water. However,
Hornkohl contradicted this version of events, testifying that
he was never aware that MSRDT divers were on the scene.
Sheriff Haik likewise denied having any such conversation
with Hornkohl. Cole testified that he did not see Chief
Hornkohl at the scene.

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No. 01-2723 Beck, et al. v. Haik, et al. 7
Eugene Beck’s mother, Sharon Beck, eventually arrived at
the scene. Firefighter LaPoint physically restrained her to
prevent her from attempting to rescue Eugene herself.
Although the accident scene was quite close to the sheriff’s
office (about a two-minute drive), the county divers did not
enter the water until 11:05 p.m., nearly one hour after Mr.
Beck’s plunge. Cermak and Doering held on to a tow bar
attached to the sheriff’s boat. The boat experienced
mechanical difficulties with its lights and radio, but it
proceeded into the water. The boat slowly canvassed the
river, which was slightly less than 30 feet deep. The water
temperature in the river, as measured by the divers’
equipment, was 68 degrees. Cermak testified that this reading
was an average, and that the temperature at the river bottom
was likely somewhat colder.
Cermak and Doering located Beck on the floor of the river,
close to the “last seen” point where he had submerged.
Cermak grasped him by the body and surfaced with him
approximately 14 minutes after the county divers had entered
the water. The county divers were unable to hoist Beck into
the sheriff’s boat, and instead transferred him onto the Coast
Guard boat, with some difficulty, as will be discussed
momentarily. The personnel on the boat began CPR and
other resuscitative measures as they returned Beck to the
shore and a waiting ambulance. However, Beck did not
survive.
Chief Monck, the Coast Guard officer who assisted with the
recovery of Beck, testified in a deposition read to the jury that
the county divers placed Beck inside a body bag underwater,
and zipped up the bag with Beck in it. Cermak testified
somewhat differently: he stated that he asked for a porous
mesh bag to use as a sling to lift Beck, but was instead given
a body bag. As the county and Coast Guard personnel tried
to place Beck partially into the bag to hoist him onto the boat,
he testified, the bag filled with water and he had to cut it open
with a knife. Cermak’s testimony that the divers did not place
8 Beck, et al. v. Haik, et al. No. 01-2723
Beck in a bag underwater was in some tension with his
deposition, in which he had said that the bag containing Beck
was “zip[ped] up” at the time the county dive team lifted him
into the boat.
Gordon Cole, a defense witness, testified under cross-
examination that he saw the county dive personnel lift Beck
out of the water by his ankles. He testified that the use of a
body bag, and the practice of drawing a victim out of the
water feet-first, were inconsistent with standard procedures
for a live drowning rescue.
Mosack testified that he did not enter the water on the night
of the accident because he feared being arrested under the
policy that Sheriff Haik had allegedly announced. Cole, on
the other hand, testified that such a policy would not have
deterred him from attempting a rescue if he had thought he
had a good chance of rescuing the victim. He testified that he
refrained from entering the water on the night of June 28
simply because the officers on the scene had told him that the
MSRDT was not needed.
Mosack estimated that if he had dived after Beck, he could
have been in the water by 10:22 p.m., five minutes after Beck
submerged. He estimated that he could then have swum to
Beck’s “last seen” location, brought him to the surface, and
swum back with him in three to six minutes. Thus he would
have been able to return Beck to the shore within
approximately ten minutes of his original submergence.
The plaintiffs bolstered their case with the expert testimony
of Dr. Alan Steinman, a former Coast Guard rear admiral and
the author of numerous articles in the fields of cold-water
drowning and resuscitation. Steinman had also studied
hundreds of drowning cases in his official capacity at the
Coast Guard. He opined that if Beck had been recovered as
late as 24 minutes after submerging, he probably could have
been resuscitated. (In his deposition, he had testified that the

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No. 01-2723 Beck, et al. v. Haik, et al. 9
cut-off time after which Beck probably would not have
survived was between 20 and 30 minutes after submersion.)
Steinman testified that his opinion was based on numerous
published articles, particularly the work of Dr. Martin
Nemiroff, a researcher who had compiled case studies of
cold-water drowning victims who had been revived after long
periods of submersion, and concluded that cold water prompts
special physiological responses that increase survivability. In
Beck’s favor were the facts that he was relatively young (age
28) and that his accident occurred in cold water (defined as
less than 70 degrees Fahrenheit). Steinman testified that
contemporary professional standards, as adopted by the
American Heart Association and other national bodies,
recommend that rescuers should make aggressive efforts to
resuscitate cold-water drowning victims who had been
submerged for as long as 60 minutes. This “golden hour” was
generally viewed as marking the outer limit of survivability.
Steinman admitted on cross-examination that the most
pronounced increases in survivability in cold-water
drownings tended to occur with victims younger than Beck.
He also admitted that if Beck had jumped into the water with
suicidal intent, as some of the evidence suggested, then this
would have decreased his chances of survival. Steinman also
admitted that Dr. Nemiroff’s research had identified only
about 50 cases of very long-term survival in about 1500 Coast
Guard drowning case studies. However, Steinman contended
that many of these cases involved periods of submersion
much longer than the 24-minute period in which, he believed,
Beck probably could have been revived.
The County countered Dr. Steinman’s testimony with the
expert testimony of Dr. Christopher Dueker, a diver and a
specialist in underwater medicine. Dr. Dueker opined that
even if Beck had been recovered within 15 minutes of
submerging, it would have been “unexpected” for him to
survive, and he would likely have suffered brain damage. By
30 minutes, his chances of survival would be “vanishingly
10 Beck, et al. v. Haik, et al. No. 01-2723
small.” Dr. Dueker criticized as unscientific the Nemiroff
research on which Dr. Steinman had partially relied, because
it was based simply on case studies. He noted that other peer-
reviewed research in the field supported much shorter
survival times in drowning victims. Dueker also testified,
based on his experience as a diver, that a diver who, like
Mosack or Cole, arrived at an accident scene before fully
suiting up, would normally take 10 to 15 minutes to don his
equipment and enter the water.
At the close of their case-in-chief, the plaintiffs called
Sharon Beck, the deceased’s mother. Mrs. Beck testified to
a close relationship with her son, and recounted feeling anger
and frustration at what she perceived as the county and city’s
indifference to rescuing him. She testified that she was
undergoing ongoing counseling for this loss. On cross-
examination, defense counsel questioned Mrs. Beck about her
relationship with her son, eliciting testimony that he had an
alcohol problem and that the relationship between Beck and
his father was sometimes difficult. At one point, counsel
asked Mrs. Beck if she was in counseling for other reasons
besides her son’s death. He then elicited, over the strenuous
objection of plaintiffs’ counsel, testimony that Mr. and Mrs.
Beck had been accused of child molestation. These
accusations were apparently abandoned after Mrs. Beck
passed a lie detector test. Plaintiffs’ counsel moved for a
mistrial, which was denied.
In addition to the evidence presented at trial, as discussed
above, the plaintiffs attempted to enter several other pieces of
evidence dealing with the county’s response. These were
rejected by the district court.
First, plaintiffs argued that they were entitled to present
evidence that the county destroyed the audio dispatch tape of
the evening’s events despite receiving a Freedom of
Information Act request for it. The dispatch tapes, the
plaintiffs contended, would have confirmed the sequence of
events on that night, and would have included transmissions

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No. 01-2723 Beck, et al. v. Haik, et al. 11
between officers that were absent from the written dispatch
log. The county regularly maintained tapes for thirty days,
then demagnetized and reused them unless a request to
preserve the tape came in. Near the end of the 30-day period,
an attorney (not a participant in this case) filed a request with
the Sheriff’s Department for a copy of the tape containing
Beck’s accident. However, the request was not transferred to
the dispatcher’s office in time, and the tape was demagnetized
on the 30th day. After a separate hearing, the district court
held that plaintiffs had provided no evidence of deliberate
destruction, and excluded the proffered testimony as
irrelevant.
Second, plaintiffs proffered a letter that Coast Guard Chief
Monck had written to Cheryl Debano-Griffin, the Manistee
County dispatch director, shortly after the Beck drowning. In
the letter, Monck expressed dismay that the county had failed
to notify the Coast Guard of Beck’s plunge. He stated that
the Guard could have responded in two minutes, but due to
the lack of notification, the Guard arrived at the accident 25
minutes later, after a call from a private citizen. Monck
added: “In many instances, the difference between the rescue
of a cold water near drowning victim and a body recovery is
the timely notification of available rescue agencies.” The
district court had previously quashed plaintiffs’ attempt to
subpoena Monck, on the ground that he was a military
serviceman. However, Monck supported the letter with an
affidavit attesting to its accuracy. The letter had another
notable feature: a handwritten annotation that read, “cut tape.”
The plaintiffs argued that this annotation must have been
made by the county dispatcher who received the letter, and
that it was relevant to plaintiffs’ claim of spoliation.
The district court first held this letter inadmissible as
hearsay. Then, when Monck filed his affidavit, the court
reconsidered its ruling and held the letter inadmissible due to
a lack of relevancy. It reasoned that the letter dealt with
matters collateral to Beck’s drowning. Moreover, it reasoned,
even if the letter tended to show that the defendants’ rescue
12 Beck, et al. v. Haik, et al. No. 01-2723
efforts were less than ideally effective, this was not relevant
to any of the elements of plaintiffs’ case.
Third, the plaintiffs attempted to introduce the opinion
testimony of Steven J. Linton, an experienced dive rescue
instructor and the author of many textbooks and articles on
the subject. Linton evaluated the municipal policies for water
accidents at the time of Beck’s drowning, and severely
criticized the defendants’ actions. He would have testified
that the use of a tow bar was inappropriate for a rescue
scenario like Beck’s, in which would-be rescuers had a good
“last seen” point. He also criticized the county divers’
lengthy delay in entering the water, the use of a body bag to
recover Beck, and the decision to send LaPoint’s rescue
ambulance, R5, back from the scene before Beck had been
recovered. Linton concluded from the county’s and city’s
activities that “the officials intended not to rescue Beck, but
simply recover his body.” Finally, Linton would have
testified that if Mosack and Cole had been permitted to enter
the water and dive at the “last seen” point, they would likely
have had little difficulty finding Beck. Linton opined on
causation in his deposition, indicating that if Mosack and
Cole had been allowed to dive, Beck would have survived.
As with the Monck letter, the district court excluded
Linton’s proffered testimony as irrelevant. It reasoned that
“the issue [of whether] this was a perfect rescue operation”
was not raised by the trial. Moreover, the court concluded
that “Mr. Linton as this case is focused cannot help the jury
evaluate th[e] question of whether or not this policy or
practice in fact caused death.”
At the close of all evidence, the district court instructed the
jury on the three elements of the plaintiffs’ case as follows:
First, that the plaintiffs’ decedent, Eugene Beck, was
arbitrarily deprived of his right to private rescue pursuant
to the [defendants’] custom, policy, ordinance,
regulation, or decision preventing private rescue efforts.

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No. 01-2723 Beck, et al. v. Haik, et al. 13
Second, that the defendant[s] . . . did not provide a
meaningful alternative to private rescue efforts.
Third, that the defendant[s’] actions were a proximate
cause of the damages sustained by the plaintiffs’
decedent, Eugene Beck.
The plaintiffs objected to use of the word “preventing” in the
first element of this instruction. They noted that this court’s
earlier opinion had used the term “hinder” to describe the
kind of government interference with private rescue that a
plaintiff was required to show. The district court overruled
this objection. Plaintiffs’ counsel argued in his closing that
“prevent” did not necessarily mean physical restraint, but
merely to “hinder” or “deter” a rescuer.
The jury received the case on November 21, 2001. At one
point during deliberations, the jurors sent a note to the court,
asking the court to define the term “arbitrary” as used in the
instructions. At the urging of the plaintiffs, the district court
declined to supply a definition, telling the jury that the term
had its ordinary and common meaning in the instructions.
After four hours of deliberation, the jury returned a general
verdict for the defendants.
The plaintiffs now appeal, arguing that the district court
committed several evidentiary errors that collectively require
reversal.
II
This case turns in part on the application of the “harmless
error” standard that governs mistakes in the admission or
exclusion of evidence at trial. This standard is embodied in
several provisions. The Federal Rules of Evidence state that
erroneous rulings are grounds for reversal only when “a
substantial right of [a] party is affected.” Fed. R. Evid.
103(a); Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 103
14 Beck, et al. v. Haik, et al. No. 01-2723
(6th Cir. 1989). The Federal Rules of Civil Procedure use
similar language. See Fed. R. Civ. P. 61 (“No error in the
admission or exclusion of evidence . . . is ground for . . .
disturbing a judgment or order, unless refusal to take such
action appears to the court inconsistent with substantial
justice.”). Another provision in the same vein appears in the
federal judicial code, and applies by its terms to all
proceedings in the courts of appeals: “On the hearing of any
appeal . . . , the court shall give judgment . . . without regard
to errors . . . which do not affect the substantial rights of the
parties.” 28 U.S.C. § 2111. In McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548 (1984), the Supreme Court
held that the “substantial rights” language of § 2111
“incorporates the same principle as that found in [Civil] Rule
61,” id. at 554, which speaks of “substantial justice.” Fed. R.
Civ. P. 61.
The “substantial right” standard may elude exact definition,
see Charles Wright, Arthur Miller, & Mary Kay Kane,
Federal Practice & Procedure: Civil 2d § 2883 (1995 & Supp.
2004), but our court has explained it in the following terms,
in a case in which we held that reversible error had occurred:
Th[e] inquiry involves an assessment of the likelihood
that the error affected the outcome of the case. As the
Supreme Court has described the test: “[I]f one cannot
say, with fair assurance, . . . that the judgment was not
substantially swayed by the error, it is impossible to
conclude that substantial rights were not affected.”
Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct.
1239, 1248, 90 L.Ed. 1557 (1946). Application of this
test is highly sensitive to the unique context of the
particular case, including the one-sided or closely
balanced nature of the evidence bearing upon the issue
which the error arguably affected, and the centrality of
that issue to the ultimate decision.

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No. 01-2723 Beck, et al. v. Haik, et al. 15
2Other formulations that have appe ared are more consistent with
Schrand. See Horn by Parks v. M adiso n Coun ty Fiscal Ct., 22 F.3d 653,
662 (6th Cir. 1994) (trial court’s erroneous exclusion of evidence was
Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 157 (6th
Cir. 1988) (quoting Jordan v. Medley, 711 F.3d 211, 218-19
(D.C. Cir. 1983)) (some citations omitted).
That is the traditional formulation of the harmless error
standard, deriving from Kotteakos v. United States. It calls
for reversal when the appellate court lacks a “fair assurance”
that the outcome of a trial was not affected by evidentiary
error. We have applied this standard in civil cases, Schrand,
ibid., habeas corpus proceedings, Caldwell v. Bell, 288 F.3d
838, 842 (6th Cir. 2002), and criminal cases, United States v.
Haywood, 280 F.3d 715, 724 (6th Cir. 2002). It is also
followed by most other circuits in both civil and criminal
cases alike. E.g., Bacou Dalloz USA, Inc. v. Cont’l Polymers,
Inc., 344 F.3d 22, 29-30 (1st Cir. 2003); Taylor v. Va. Union
Univ., 193 F.3d 219, 235 (4th Cir. 1999) (en banc); Williams
v. U.S. Elevator Corp., 920 F.2d 1019, 1022-23 (D.C. Cir.
1990); Aetna Cas. & Sur. Co. v. Gosdin, 803 F.2d 1153, 1159
(11th Cir. 1986).
However, after Schrand, several of our opinions in civil
cases stated the following standard: “Even if a mistake has
been made regarding the admission or exclusion of evidence,
a new trial will not be granted unless the evidence would have
caused a different outcome at trial.” Morales v. Am. Honda
Motor Co., Inc., 151 F.3d 500, 514 (6th Cir. 1998) (emphasis
added); Nida v. Plant Prot. Ass’n Nat., 7 F.3d 522, 527 (6th
Cir. 1993); Polk v. Yellow Freight Sys., Inc., 876 F.2d 527,
532 (6th Cir. 1989). This version would seem to require an
appellant to do more than merely deprive the appellate court
of a “fair assurance” that the error was not outcome-
determinative, as under Kotteakos. Instead, he must show by
a preponderance of the evidence that the error was outcome-
determinative.2
16 Beck, et al. v. Haik, et al. No. 01-2723
harmless error when it “worked no substantial prejudice”); Polk, 876 F.2d
at 532 (declining to reverse when erroneous evidentiary decision “could
not have resulted in a d ifferent result at trial”).
3W hile Schrand held that the Kotteak os standard applies to civil and
criminal cases alike, we do not interpret Schrand to say that the prejudice
inquiry must ignore differences between the two types of case. In
particular, different burdens of persuasion apply in civil and criminal
trials. In a criminal case, where proof must be beyond a reasonable d oubt,
a reviewing court might find itself unable to say, with “fair assura nce,”
Kotteakos, 328 U .S. at 765, that a given evidentiary error, or set of errors,
was harmless. Reve rsal would then b e required. Yet in an otherwise
similar civil trial, the same error or errors might not be enough to shake
the court’s fair assurance that the jury still would have found against the
appellant in the absence of the error, in light of the lower, preponderance
of the evid ence, standard of proo f. Cf. Schrand, 851 F.2d at 157
(instructing courts to pay attention to “the one-sided or closely balanced
Schrand is a published opinion adopting the Kotteakos “fair
assurance” standard of harmless evidentiary error in a civil
case. Schrand, 851 F.2d at 157; Taylor, 193 F.3d at 235
(classifying the Sixth Circuit as following Kotteakos in civil
cases, citing Schrand; embracing the same rule). To the
extent the language of our later panel decisions is inconsistent
with this holding, we follow Schrand. “[A] panel of this
[c]ourt cannot overrule the decision of another panel. The
prior decision remains controlling authority unless an
inconsistent decision of the United States Supreme Court
requires modification of the decision or this Court sitting en
banc overrules the prior decision.” Darrah v. City of Oak
Park, 255 F.3d 301, 309 (6th Cir. 2001); accord 6th Cir. R.
206(c).
Accordingly, we begin by asking whether there was
evidentiary error in the trial. If so, then we “examin[e] the
proceedings in their entirety,” Kotteakos, 328 U.S. at 762, in
the light of the proofs at trial, to determine whether the errors
affected substantial rights. If we do not have a “fair
assurance” that the trial’s outcome was not altered by error,
we must reverse. Schrand, 851 F.2d at 157.3

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No. 01-2723 Beck, et al. v. Haik, et al. 17
nature of the evidence” in deciding whether error was harmless in a given
case).
III
A district court’s decisions to admit or exclude evidence are
reviewed for abuse of discretion. United States v. Cline, 362
F.3d 343, 348 (6th Cir. 2004). An abuse of discretion occurs
when the district court “relies on clearly erroneous findings of
fact, . . . improperly applies the law, . . . or . . . employs an
erroneous legal standard.” Ibid.
Claims of error in jury instructions require the instructions
to be reviewed as a whole, in order to determine whether they
adequately informed the jury of the relevant considerations
and provided a basis in law for aiding the jury in reaching its
decision. O-So Detroit, Inc. v. Home Ins. Co., 973 F.2d 498,
502 (6th Cir. 1992); Blackwell v. Sun Elec. Corp., 696 F.2d
1176, 1181 (6th Cir. 1983).
A
Plaintiffs first contend that the district court erred by
excluding the testimony of Mr. Linton. They argue that his
evaluation of the county’s dive efforts was relevant to the
question of whether the defendants provided a “meaningful
alternative” to private rescue. They also argue that Linton’s
experience qualified him to testify about the degree of
difficulty the MSRDT divers would likely have faced in
recovering Beck, had they dived after him. When reviewing
proposed expert testimony, the district court must determine
whether the evidence rests upon a reliable foundation and is
relevant. Fed. R. Evid. 702; Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 597 (1993). A district court
abuses its discretion if it bases “its ruling on an erroneous
view of the law or a clearly erroneous assessment of the
evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990).
18 Beck, et al. v. Haik, et al. No. 01-2723
We agree with the plaintiffs that some of Linton’s proposed
testimony was relevant to the “meaningful alternative” issue,
and should have been admitted. To be sure, the district court
was right to observe that the question of whether or not “this
was a perfect rescue operation” was irrelevant to the case.
Our previous opinion in this matter drew upon the analysis in
the Seventh Circuit’s opinion in Ross v. United States, 910
F.2d 1422 (7th Cir. 1990), in describing the constitutional due
process claim raised by the Becks’ complaint. We adopted
Ross’s formulation: a municipality cannot “arbitrarily cu[t]
off private sources of rescue without providing a meaningful
alternative.” Beck, 2000 WL 1597942 at *4 (quoting Ross,
910 F.2d at 1431). The concept of “meaningfulness” at issue
here must be understood with reference to the underlying
constitutional doctrine of due process, which prohibits only
“egregious or arbitrary government conduct,” City of
Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.
188, 198 (2003), not conduct that is merely ill-reasoned or ill-
advised. Thus, a broad range of possible dive rescue
techniques might qualify as “meaningful,” even if they were
not the most effectively adapted for the task.
In this case, however, Linton offered testimony that several
aspects of the county’s response to the Beck drowning
suggested the county was not, in fact, engaged in a rescue
operation at all, but only in a body recovery operation. This
would obviously fall short of being a meaningful alternative
to rescue. There was evidence that the county had
specifically decided not to hold itself out as providing water
rescue services, because it believed that it could not provide
a timely response across the length of Manistee County.
Indeed, when Beck’s fall occurred, the county divers were
unable to enter the water until 58 minutes after Beck’s plunge,
even though the accident site was only two or three minutes
from the sheriff’s office. Moreover, some trial testimony
suggested that when the county divers did recover Beck, they
placed him in a body bag and dragged him out by his feet.
Other testimony indicated that the city’s rescue vehicle, R5,
had been on the scene but had been sent home by Chief

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No. 01-2723 Beck, et al. v. Haik, et al. 19
Hornkohl before Beck’s body was recovered. Linton would
have testified that these facts were inconsistent with an
attempt at live rescue. He would also have explained the
“golden hour” protocol recognized in the field of water
rescue: one hour of submersion is the outer limit of survival
for a drowning victim. Furthermore, Linton testified in his
deposition that water rescue operations are rarely run out of
sheriff’s departments, as the Manistee County dive team was;
rather, such operations are more commonly run out of local
fire departments, which can respond faster.
Such testimony meets the general relevance requirement of
Fed. R. Evid. 401 and the expert opinion requirements of Fed.
R. Evid. 702. In light of Linton’s expertise, his testimony
could have been helpful to the jury in deciding whether what
occurred was a rescue operation or a recovery operation, and
thus whether it was a meaningful alternative to private rescue.
See Fed. R. Evid. 702 (permitting opinion testimony based on
relevant “scientific, technical, or other specialized
knowledge” if, inter alia, the witness is appropriately
“qualified as an expert by knowledge, skill, experience,
training, or education”). As a water rescue expert, Linton also
could have provided potentially helpful testimony on whether
Mosack and Cole would have been likely to encounter
difficulty in recovering Beck if they had entered the water on
that night.
We agree with the district court, however, that Linton was
not sufficiently qualified to opine on whether Beck’s life
would have been saved if Mosack and Cole had entered the
water and searched for him. That was properly a medical
judgment, and Linton (unlike plaintiffs’ other proffered expert
witness, Dr. Steinman) lacked the medical training to qualify
him to render such a judgment.
B
Plaintiffs’ second issue concerns the district court’s
decision to exclude, as irrelevant, Monck’s letter to the county
20 Beck, et al. v. Haik, et al. No. 01-2723
dispatch director, in which he complained that the municipal
authorities never notified the Coast Guard of the Beck
drowning. We agree that this letter should not have been
excluded as irrelevant. The letter is relevant for reasons
similar to those that required admission of part of Mr.
Linton’s testimony, discussed above. Monck stated that the
county had not notified the Coast Guard of Beck’s accident,
even though the Coast Guard boat was on patrol and could
have arrived at the scene in about two minutes. If believed by
the jury, this evidence would clearly support one of the
plaintiffs’ main theories of the case: that the county was not
interested in providing live rescue at all, only body recovery.
Thus, the letter is relevant to the “no meaningful alternative”
element of the plaintiffs’ case.
The defendants argue that even if the letter is relevant, it
still should have been excluded as hearsay. The district court
did originally exclude the letter as hearsay, but later
reconsidered this part of its ruling sua sponte and reversed it.
The parties have not included in the record sufficient
documents or transcripts of the proceedings to allow us to
revisit the district court’s thinking on the hearsay issue, which
appears to involve a number of complex considerations. As
best we can gather from this vantage point, the plaintiffs
attempted to subpoena Chief Monck to testify about the
matters addressed in his letter to the county dispatcher. The
district court quashed the subpoena. It is unclear whether it
did so because the Coast Guard had refused to comply with
the subpoena (perhaps pursuant to its authority as a federal
agency to “prescribe regulations for . . . the conduct of its
employees [and] . . . the custody, use, and preservation of its
records, papers, and property,” under the so-called
“housekeeping statute,” 5 U.S.C. § 301), or for another
reason. Monck later offered an affidavit that authenticated his
letter. The district court then revisited its hearsay ruling, and
concluded that the Coast Guard’s response rendered Monck
an “unavailable” witness within the meaning of Fed. R. Evid.
804, and apparently concluded that Monck’s testimony also

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No. 01-2723 Beck, et al. v. Haik, et al. 21
4It is an interesting question whether such a refusal by the Coast
Guard (if that is what happened) wo uld, in fact, render a witness
“unavailable” for purposes of Fed. R. Evid. 804 and/or 807, thereby
making his earlier hearsa y statements potentially admissible. The
agency’s say-so does not conclude the matter of whether the witness is
unavailable. Rather, our court has held that the “housekeeping” statute
for military and other federal agenc ies, 5 U.S.C. § 301, does not empower
agencies “to prescribe regulatio ns that direct a party to deliberately
disobey a court order, subpoena, or other judicial mechanism requiring
the production of information.” In re Bankers Trust Co., 61 F.3d 465,
470 (6th C ir. 199 5); accord Exxon Shipping Co. v. United States Dep't of
Interior, 34 F.3d 77 4, 777 (9th Cir.1994), although we have also held that
an agency employee cannot be held in contempt for relying on such a
regulation, Appeal of S.E.C., 226 F.2d 501 , 516 (6th Cir. 195 5).
W e express no opinion on this question, which is not properly before
us.
satisfied an appropriate hearsay exception – perhaps the
“catch-all” exception of Fed. R. Evid. 807.4
In the end, the district court explicitly rested its ruling on
lack of relevance, not on hearsay. The parties have not
provided a sufficient appellate record for us to decide whether
the hearsay issue provides an alternative basis for affirming
the district court’s ruling. We accordingly express no opinion
on this question. The district court may choose to revisit the
point on remand.
C
The plaintiffs also challenge the district court’s decision to
exclude two letters written to Tom Kaminski, the Manistee
County Administrator, by William Page, a risk consultant
with the Michigan Municipal Management Authority (a
public-entity liability and property insurer). On Februrary 8,
1993, Page wrote a note on the cover page of a fax to
Kaminski, stating that “[l]egislation indicates sheriff / police
chiefs have duty to establish “recovery” capacity . . . but may
also call upon other agencies to aid in recovery of a body.”
Page added: “Rescue operations signify an even higher
22 Beck, et al. v. Haik, et al. No. 01-2723
standard of care, training, equipment, etc. As I read the
statute the[re] is no duty to provide a rescue team!” The note
closed by stating that “the liability would significantly
increase” if the county created a rescue team.
On March 25, 1993, after a drowning accident in the
Manistee River, Page sent a typed letter to Kaminski
“reinforc[ing] our risk control opinion that Manistee County
should not expand its present services in the Sheriff’s
Department in the area of water recovery.” Page referred in
this letter to a “position taken and expressed . . . by Sheriff
Haik” that the county should decline to provide official rescue
services, and Page endorsed this position. Echoing his
previous note, Page added: “Any agreement to provide
underwater rescue service would generate considerable
expenditures in staffing, trainin[g], and equipment while at
the same time greatly increasing exposure to liability.”
Plaintiffs proffered these two letters as admissions of an
opposing party, admissible under the hearsay exception of
Fed. R. Evid. 801(d)(2)(D). They offered to redact the letters
to exclude the closing references to liability, in conformity
with Fed. R. Evid. 411. The district court held the letters
inadmissible on the grounds that they were irrelevant and
excessively prejudicial. It reasoned that the letters could not
be redacted to remove the references to liability without
rendering them misleadingly incomplete. On appeal, the
defendants argue that the district court’s ruling was correct,
and renew their argument, presented below, that the letters
were also subject to exclusion as hearsay.
We are compelled to conclude that the letters should have
been admitted. They were relevant. They dealt with whether
the county had decided to forego live rescue attempts in water
accidents. If the jury believed it had done so, this would be
highly relevant, if not decisive, as to the question of whether
the defendants failed to provide a meaningful alternative to
private rescue. As to prejudice, the thrust of the letters was
to advise the county not to adopt water rescue, and to report

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No. 01-2723 Beck, et al. v. Haik, et al. 23
5See EEOC v. Watergate at Landmark Condo., 24 F.3d 635, 640 (4th
Cir. 1994) (holding that statements of condominium residents on advisory
committees were admissible under Rule 801(d)(2)(D) in a former
employee’s discrimination action against the condominium association);
United States ex rel. Remtech, Inc. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., Nos. 99-3 503 8, 99 -352 97, 2 000 W L 11 711 39, *3 n.4
(9th Cir. 2000) (unpublished opinion) (holding a consultant’s statement
about his desire to help his client avoid a co ntract to be admissible against
the client under Rule 801(d)(2)(D )).
that Sheriff Haik had taken such a position. The letters could
easily have been redacted by removing the sentences referring
to liability without distortion of their meaning.
Defendants’ argument that the letters were improper
hearsay also requires consideration. Fed. R. Evid. 801(d)(2)
provides that statements are not hearsay if they are “offered
against a party and [are made] . . . by the party’s agent or
servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship.”
The chief issue is the nature of Page’s relationship with the
county. Defendants state that Page was simply a consultant,
providing risk assessment services as part of the county’s
agreement with the Michigan Municipal Management
Authority. Assuming this is so, we hold that Page’s
statements in the letters still count as “admissions” under
Rule 801(d)(2)(D). The statements dealt directly with the
subject matter of the Management Authority’s contract with
the county, and were expressed during the course of that
relationship. Though there is little precedent on the matter,
courts confronting similar factual situations have tended to
hold contractors and advisors to fall within the “agency”
relationship contemplated by Rule 801(d)(2)(D).5 Our court
reached a similar conclusion in a criminal case, United States
v. Branham, 97 F.3d 835, 851 (6th Cir. 1996), in which we
held that a paid civilian informant was the government’s
“agent” under Rule 801(d)(2)(D) with respect to statements
he made in order to establish a relationship with the
defendant. See also United States v. Wiedyk, 71 F.3d 602,
24 Beck, et al. v. Haik, et al. No. 01-2723
605-06 (6th Cir. 1995) (assuming arguendo that an employee
of a professional services company hired by a union fund was
the fund’s “agent” under Rule 801(d)(2)(D) with respect to
his assertions dealing with his company’s work for the fund).
Defendants argue next that the letters would have been
merely cumulative. They point out that the County’s former
deputy sheriff, Kowalkowski, admitted under cross-
examination by plaintiffs’ counsel that, prior to Beck’s
drowning, the county had decided not to hold itself out as
offering rescue services. However, the letters would have
provided additional perspective on the county’s actions. The
thrust of Kowalkowski’s testimony was that the county chose
not to offer rescue services “[i]n name.” The letters went
further, suggesting that the county did not merely decline to
offer rescue services by name, but that it affirmatively
decided, on financial grounds, to offer only body recovery
services. Thus, while the defendants are correct that
Kowalkowski’s testimony tended to mitigate the effect of
erroneously excluding the letters, it did not render the letters
merely cumulative.
D
Plaintiffs presented testimony at trial from Cheryl Debano-
Griffin, the Manistee County dispatch director. At one point,
plaintiffs’ counsel made an offer of proof, and asked Debano-
Griffin questions aimed at developing a foundation for the
argument that the county had deliberately destroyed the
dispatcher’s audio tape of the events of June 28, 1995.
Debano-Griffin confirmed that the tape was demagnetized by
the dispatcher’s office, and thus was unavailable. (Plaintiffs
did introduce into evidence the printed dispatch log.
However, this was less complete, and the time stamps on the
printed log were not always contemporaneous with events.)
She testified that it was the routine practice of the office to
maintain tapes for thirty days, and then, if no one requested
preservation of the tape or a copy, to demagnetize and reuse
them. She further testified that the Coast Guard verbally

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No. 01-2723 Beck, et al. v. Haik, et al. 25
requested the tape from her office during that 30-day period,
and that she reviewed the tape with Chief Monck and other
Coast Guard personnel. In addition, an attorney (not a
participant in the present litigation) filed a written Freedom of
Information Act requesting the tape from the night of Beck’s
death. This FOIA request was filed one or two days before
the expiration of the 30-day period, but it was filed with the
Manistee County Sheriff’s Department, rather than the
dispatcher’s office. Debano-Griffin testified that her office
did not receive the written FOIA request until shortly after the
expiration of 30 days, and that by then the tape had been
demagnetized. Plaintiffs argued that the Coast Guard’s verbal
request, and the sheriff’s failure to convey the written request
to the dispatch office, raised an inference of spoliation of
evidence by the County. The district court did not agree. It
reasoned that the written request was filed only one or two
days before the expiration of the 30-day deadline, and was
filed with the sheriff’s office rather than the county dispatch
office. Thus, it concluded, the logical inference was that an
innocent bureaucratic error had prevented the request from
being received in time to prevent the destruction of the tape.
We review the district court’s decision to exclude evidence
of spoliation for abuse of discretion. United States v.
Copeland, 321 F.3d 582, 597 (6th Cir. 2003). The district
court’s reasoning here would have been within its discretion
if the failure to respond to the written request were the only
evidence of a possible spoliation. However, it was not.
Debano-Griffin also testified that the dispatch office received
a direct verbal request from the Coast Guard for a copy of the
tape. While the plaintiffs, during their brief offer of proof,
did not establish the date of the receipt of this verbal request,
it must have preceded the written FOIA request, because it
occurred in time for the tape to be produced intact to the
Coast Guard. Debano-Griffin also testified that receipt of a
verbal request was enough to justify preserving a tape. That
being so, it would appear that the tape should have been
preserved after the regular 30-day deadline expired, regardless
of whether the written FOIA request had been received by
26 Beck, et al. v. Haik, et al. No. 01-2723
that date. Yet it was not. The fact that Monck’s letter to the
county dispatcher was marked with the written annotation,
“cut tape,” could also be viewed as supporting the plaintiffs’
arguments.
Spoliation is the intentional destruction of evidence that is
presumed to be unfavorable to the party responsible for the
destruction. Ibid. The rules that apply to the spoiling of
evidence and the range of appropriate sanctions are defined
by state law; in this case, the law of Michigan. Nationwide
Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th
Cir. 1999). Michigan treats evidence of spoliation as relevant
to trial proceedings in a number of respects. “A trial court has
the authority . . . to sanction a party for failing to preserve
evidence that it knows or should know is relevant before
litigation is commenced.” Bloemendaal v. Town & Country
Sports Ctr. Inc., 659 N.W.2d 684, 686 (Mich. Ct. App. 2003).
A party may also be entitled to special instructions if he can
raise an issue of fact as to whether a party has failed to
preserve relevant evidence. See Brenner v. Kolk, 573 N.W.2d
65 (Mich. Ct. App. 1998); Mich. Std. Jury Instruction 2d
6.01. In the posture in which this appeal reaches us, we need
not consider whether any of these measures could be
appropriate in this case. It is enough to say that there was
sufficient evidence to entitle the plaintiffs to present their
spoliation evidence to the jury.
E
Plaintiffs argue next that the court committed reversible
error when it allowed the defendants to elicit testimony that
Eugene Beck had a criminal record and that his parents had
been accused of child molestation. They argue that this
questioning was irrelevant and highly prejudicial. Defendants
argue that it was proper cross-examination, because plaintiffs
had opened the door to it.
Sharon Beck, Eugene’s mother, testified on direct
examination that she had sought counseling for her grief and

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No. 01-2723 Beck, et al. v. Haik, et al. 27
anger after the death of her son. The plaintiffs had previously
secured a ruling from the district court that forbade
defendants from introducing any evidence of Eugene’s
criminal record, unless Mrs. Beck’s testimony opened the
door to it as rebuttal. In cross-examining Mrs. Beck about her
relationship with her son, defense counsel asked Mrs. Beck if
Eugene was “difficult” and “got into trouble.” She replied
that if so, “he didn’t go out and cause it” and added that “he
wasn’t convicted on none of them.” Defense counsel then
asked Mrs. Beck directly whether her son had gone to prison,
and she admitted he had. Plaintiffs’ counsel’s
contemporaneous objection was overruled.
We do not believe this was error. The district court acted
within its discretion by implicitly ruling that Mrs. Beck’s
remark that Eugene “wasn’t convicted” opened the door to
counsel’s question. “When a party opens up a subject . . . the
party cannot complain on appeal if the opposing party
introduces evidence on the same subject.” United States v.
Bender, 265 F.3d 464, 471 (6th Cir. 2001) (quoting United
States v. Ramos, 861 F.2d 461, 468-69 (6th Cir.1988))
(holding that defense counsel was permitted to cross-examine
defendant about her prior drug conviction, notwithstanding
district court’s earlier order excluding such testimony, when
defendant testified on direct examination that she had never
sold drugs).
However, we cannot say the same of the other line of
questioning challenged by plaintiffs. In the course of
questioning Mrs. Beck about her need for counseling, defense
counsel asked whether she had “other upsetting events” in her
life besides Eugene’s death. Mrs. Beck replied: “Like what?”
Defense counsel then asked: “Well, on several occasions you
and your family were accused of child molestation?”
Plaintiffs’ counsel objected strenuously, but was overruled.
Plaintiffs’ counsel then moved for a mistrial, which was
denied. It emerged that the accusation had originated with the
adoptive parents of Mrs. Beck’s granddaughters. An
investigation was dropped after Mrs. Beck passed a lie
28 Beck, et al. v. Haik, et al. No. 01-2723
detector test. It was unclear whether any charges were ever
filed.
This questioning was both irrelevant and unduly
prejudicial, and should have been disallowed. It certainly did
not satisfy the requirements of Fed. R. Evid. 608, which
permits the use of past crimes for impeachment, but only
where, among other requirements, the evidence indicates “that
a witness . . . has been convicted of a crime.” We have
cautioned that introducing unrelated evidence of sexual
crimes or deviancy risks “cater[ing] to the passions of the
jury” and “prejudic[ing] [a party’s] chance for a fair trial.”
United States v. McFadyen-Snider, 552 F.2d 1178, 1182 (6th
Cir. 1977). Here, plaintiffs’ choice to present Mrs. Beck’s
testimony about her love of her son and her need for grief
counseling could fairly be seen as opening the door to
questions about the stormy aspects of her relationship with
her family. But counsel’s question about apparently
uncharged, and certainly unproven, accusations of child
molestation by others against Mrs. Beck simply was not
relevant to that subject. The record does not even indicate
that defense counsel had any reason to believe the charges
were meritorious. Therefore, Mrs. Beck’s request for
clarification of counsel’s previous question about “upsetting
events” requiring counseling could not have “opened the
door” to any follow-up question about the accusations of
molestation.
The district court’s denial of a motion for mistrial is
reviewed for an abuse of discretion. United States v. Green,
305 F.3d 422, 428 (6th Cir. 2002). In appeals of civil cases,
grants of mistrial on the basis of a single episode of improper
questioning or argument have been rare. See, e.g., Vineyard
v. Murray County, Ga., 990 F.2d 1207 (11th Cir. 1993)
(affirming the district court’s decision to deny motion for
mistrial in excessive force case under § 1983 when plaintiff’s
counsel urged jury in closing argument to “send a message”
in light of recent Rodney King riots; district court gave
curative instruction). One court has held that, where an

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No. 01-2723 Beck, et al. v. Haik, et al. 29
appellant challenges a denial of mistrial on the basis of
evidence that the trial court held admissible, the appellant
faces an “unusually heavy appellate burden” of demonstrating
that the denial of mistrial was an abuse of discretion, on top
of demonstrating that the admission of the evidence was an
abuse of discretion. Tamko Roofing Prod., Inc. v. Ideal
Roofing Co., Ltd., 282 F.3d 23, 39 (1st Cir. 2002).
For reasons we discuss in Part IV, infra at pp. 30-32, we
need not consider whether the improper questioning of Mrs.
Beck was sufficiently prejudicial by itself to merit a mistrial.
It is enough that the error was significant and, in conjunction
with the other evidentiary errors we have identified, deprived
the Becks of a fair trial.
F
The plaintiffs offer one other argument meriting discussion.
It concerns the instructions given as to the first element of
their case. The district court instructed the jury that the
plaintiffs had to show that the defendants imposed a policy
“preventing” private rescue efforts. The plaintiffs argue that
this was an inappropriate gloss on the language of this court’s
previous opinion, thereby improperly increasing the
plaintiffs’ burden. The plaintiffs urge that the instruction
should have stated that defendants’ policies must “hinder” or
“deter” private rescue. They note accurately that this court
used these words in some passages of its earlier opinion.
We conclude that the district court’s instructions adequately
informed the jury about the law and the relevant
considerations. As defendants point out, the district court’s
instructions were also grounded in our prior opinion, which
used the word “prevent” to describe the elements of the
plaintiff’s claim: “Ross holds that official action preventing
rescue attempts by a volunteer civilian diver can be arbitrary
in a constitutional sense if a state-sponsored alternative is not
available when it counts – and we are constrained to agree.”
Beck, 2000 WL 1597942 at *4 (emphasis added); see also
30 Beck, et al. v. Haik, et al. No. 01-2723
Ross, 910 F.2d at 1431 (holding that plaintiff stated a
constitutional claim when he alleged that the county “had a
policy of arbitrarily cutting off private sources of rescue
without providing a meaningful alternative”). It is not
reversible error when a court refuses to use the exact language
counsel requests in a jury instruction. Blackwell, 696 F.2d at
1183; Thompson v. Underwood, 407 F.2d 994, 997 (6th Cir.
1969). There is, in any event, great semantic overlap among
the terms “prevent,” “hinder,” and “deter.” Compare The
American Heritage Dictionary of the English Language 1391
(4th ed. 2000) (noting that “prevent” and related verbs “mean
to stop or hinder . . ., especially by advance planning or
action”) with id. at 494 (defining “deter” as “[t]o prevent or
discourage from acting”) and id. at 830 (noting that “hinder”
means “to hold back and often implies stopping or
prevention”). The instructions were proper.
The plaintiffs have offered other assignments of error,
which we have considered. Because we find them to be
clearly without merit, we see no need to discuss these
additional arguments.
IV
The last issue is whether the errors in the trial require
reversal. Examining the proceedings in their entirety, we
believe that the substantive issues were significantly
contested. The Becks argued forcefully that the County and
City arbitrarily prevented private rescue as a matter of policy.
They presented testimony from MSRDT members Hornkohl
and Krause that they had been threatened with arrest were
they to enter the water at an accident scene. Several other
local witnesses testified that they had seen or heard of a
memo from the sheriff declaring water accidents to be crime
scenes, and some testified that they had heard of an arrest
policy connected with that memo. The individual defendants,
in turn, squarely denied adopting such a policy or threatening
the MSRDT members. The defendants presented testimony
from the local fire chiefs that tended to support their position.

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No. 01-2723 Beck, et al. v. Haik, et al. 31
Likewise, the plaintiffs offered pertinent evidence that,
despite some of the trappings of rescue, the county really
offered only body recovery services, and thus offered no
meaningful alternative to private rescue. Cole, a trained
diver, and Dr. Steinman, plaintiffs’ expert witness, testified
that several aspects of the county dive team’s response, such
as the use of the body bag, and failure to enter the water for
58 minutes, suggested that they were not serious about rescue.
But this aspect of the plaintiffs’ case would have been
bolstered significantly if the testimony of Linton, the dive
expert, and the letter from Coast Guard officer Monck had
been admitted.
Causation was perhaps the weakest element of plaintiffs’
case. However, they presented Dr. Steinman’s expert
testimony that Beck probably could have survived if rescued
within 20 to 30 minutes of submerging. If the jury believed
the testimony of Mosack, it easily could have concluded that
the MSRDT divers could have recovered Beck during this
time. Defendants’ medical expert, Dr. Dueker, testified that
it was unlikely that Beck would have survived even 10 to 15
minutes’ submersion, thus casting doubt on plaintiffs’ claims
of causation. He also offered plausible criticisms of the
research that underpinned Dr. Steinman’s opinion. We think
it is relevant, though, that during its deliberations, the jury
asked a question about the meaning of the term “arbitrarily”
in the jury instructions. This was not part of the definition of
the causation element of plaintiffs’ case. The question
suggests that the jury may have thought plaintiffs had
presented enough evidence of causation to justify careful
attention to whether they had proved the other elements of
their case.
We have identified five errors that inured to the detriment
of the Becks: (1) the exclusion of Linton’s expert testimony;
(2) the exclusion of the Coast Guard letter; (3) the exclusion
of the letters from the county risk consultant, Mr. Page;
(4) the exclusion of the spoliation evidence; and (5) the
improper questioning of Mrs. Beck on accusations of child
32 Beck, et al. v. Haik, et al. No. 01-2723
molestation. In our view, errors (2) and (4) involved
affirmative evidence with a significant potential to persuade
the jury, and error (5) raised a significant possibility of
improper prejudice.
Should these effects be weighed together? Our court has
adopted the doctrine of “cumulative error” in criminal cases:
we consider the “combined effect” of multiple trial errors to
determine whether they are unfairly prejudicial. United States
v. Parker, 997 F.2d 219, 222 (6th Cir. 1993). We have not
yet had occasion to decide whether the same rule applies in
civil cases. However, most of our sister circuits follow the
cumulative-error doctrine in both civil and criminal cases.
See, e.g., Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d
183, 188 (7th Cir. 1993); Malek v. Fed. Ins. Co., 994 F.2d 49,
55 (2d Cir. 1993); Hendler v. United States, 952 F.2d 1364,
1383 (Fed. Cir. 1991); United States v. Rivera, 900 F.2d
1462, 1469 (10th Cir. 1990); but see SEC v. Infinity Group
Co., 212 F.3d 180, 196 (3d Cir. 2000).
We agree with the majority of courts that the cumulative-
error doctrine should extend to civil cases. The “substantial
right” standard that governs harmless error analysis is defined
in terms of whether errors may have influenced the jury’s
verdict. Schrand, 851 F.2d at 157; see generally Part II,
supra at pp. 13-16. Since a jury reaches its verdict in light of
the evidence as a whole, it makes no sense to try to analyze
errors in artificial isolation, when deciding whether they were
harmless.
Applying this standard, we conclude that we lack a “fair
assurance” that the verdict below was not substantially
swayed by error. Schrand, ibid.; Kotteakos, 328 U.S. at 765.
The trial was contested enough that fairness requires a new
trial in which the Becks may present the range of relevant
evidence denied to them below.

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No. 01-2723 Beck, et al. v. Haik, et al. 33
V
For the foregoing reasons, the judgment is REVERSED and
the case is REMANDED for a new trial.

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