Ali Bazzi v. Tyco Healthcare Group

1The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3281
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Carlos Fernando Colores Vasquez, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Stephanie Jo Colores, *
*
Appellant. *
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Submitted: May 10, 2011
Filed: August 5, 2011
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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Dr. Carlos Colores Vasquez filed a petition to return his twenty-two-month-old
daughter, I.R.C., to Mexico pursuant to the Hague Convention on the Civil Aspects
of Child Abduction (the Convention), implemented by the International Child
Abduction Remedies Act (ICARA), 42 U.S.C. §11601 et seq. Stephanie Colores, Dr.
Colores’s estranged wife and mother of I.R.C., opposed the petition. The district
court 1 entered an order granting the petition.

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Ms. Colores appeals, arguing that the district court erred in denying her motion
for a continuance and in excluding the testimony of two witnesses. We affirm.
I.
A. The Hague Convention
The signatory nations of the Convention, including Mexico and the United
States, sought “to protect children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to ensure their prompt
return to the State of their habitual residence, as well as to secure protection for rights
of access.” Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 375 (8th Cir. 1995)
(quoting the Convention, Preamble). Under ICARA, a petitioner whose custody rights
have been violated must establish, by a preponderance of the evidence, that the child
was wrongfully removed from the country of her habitual residence. 42 U.S.C.
§ 11603(e)(1). A court is bound to promptly return a child who was wrongfully
removed unless certain “narrow exceptions” apply. § 11601(a)(4). The Article 13(b)
exception, on which Ms. Colores relied, applies if the party opposing the petition
establishes by clear and convincing evidence that “there is grave risk that his or her
return would expose the child to physical or psychological harm or otherwise place
the child in an intolerable situation.” § 11603(e)(2).
We have recognized two types of grave risk that are cognizable under Article
13(b): cases in which a child is sent to a zone of war, famine, or disease and those
involving serious abuse or neglect. Silverman v. Silverman, 338 F.3d 886, 900 (8th
Cir. 2003). The inquiry is narrow in scope:
[it] does not include an adjudication of the underlying custody dispute,
and only requires assessment of whether the child will face immediate
and substantial risk of an intolerable situation if he is returned to [his
home country] pending final determination of his parents’ custody

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dispute. It is not relevant to this Convention exception who is the better
parent in the long run, or whether [the respondent-mother] had good
reason to leave her home . . . and terminate her marriage to [the
petitioner-father] . . . .
Nunez-Escudero, 58 F.3d at 377.
B. Factual and Procedural Background
Ms. Colores, an American citizen, and Dr. Colores married in Minnesota in the
summer of 2007 and moved to Mexico. Their daughter, I.R.C., was born in December
2008. In early May 2010, Ms. Colores left Mexico with I.R.C. and traveled to South
Carolina, where her mother was vacationing. The three returned to her mother’s home
in Minnesota in late May. Dr. Colores filed his petition for emergency ex parte relief
under the Convention on August 23, 2010. The district court granted that petition two
days later. United States Marshals transferred I.R.C. to Dr. Colores’s custody on
August 26.
Ms. Colores sought a continuance, claiming that she needed more time to obtain
additional information from the United States Embassy in Mexico City and security
footage from the gated community in which she and Dr. Colores had lived. Dr.
Colores objected to the continuance, arguing that Ms. Colores had failed to
demonstrate that the information was material to the petition. The district court
denied the motion for a continuance, and the parties commenced the first of three
evidentiary hearings on September 1.
The parties agreed that I.R.C. was a habitual resident of Mexico and that her
removal was wrongful because Dr. Colores did not consent and I.R.C. did not have
a valid passport. Ms. Colores claimed that the Article 13(b) exception applied and
thus the district court was not obligated to return I.R.C. to Mexico. Over the course
of the hearings, she sought to establish that Dr. Colores’s anger problems and history

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of abuse posed a grave risk of physical or psychological harm that satisfied the Article
13(b) exception. She testified that Dr. Colores had abused I.R.C. by shaking her head
forcefully six to ten times a month, head-butting her two to three times a month, or
hitting her on the back with his fist. Barbara Jo Gangl, Ms. Colores’s mother, testified
that she had witnessed Dr. Colores shake I.R.C.’s head forcefully and pull her hair.
C. Excluded Testimony
Following Ms. Colores’s testimony, she sought to elicit testimony from John
Gangl, her stepfather. She proffered that he would corroborate her account of Dr.
Colores’s episodes of rage by recounting a telephone conversation in which Dr.
Colores allegedly lashed out at Gangl after he complained about Dr. Colores’s refusal
to pick up Barbara Jo from the airport when she visited. The district court inquired
whether Gangl had witnessed Dr. Colores in a rage in the presence of I.R.C. and was
told that he had not. The district court concluded that the proffered testimony was not
relevant and excluded it.
Ms. Colores also sought to elicit expert testimony from Dr. Jeffrey L. Edleson,
Professor and Director of Research at the School of Social Work at the University of
Minnesota and the Director of the Minnesota Center against Violence and Abuse. On
September 7, 2010, when Ms. Colores first broached the topic of calling Dr. Edleson
with the district court, he was unavailable to appear because he had been hospitalized.
When questioned, counsel for Ms. Colores could not provide the court with more
information why Dr. Edleson had been hospitalized or when he might be available.
As part of her offer of proof, Ms. Colores recounted Dr. Edleson’s expertise in
the area of domestic violence and referred to a study, funded by the National Institute
of Justice, the research arm of the U.S. Department of Justice, that addressed “the risk
of harm to children in the context of domestic violence against parents and children

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in [Hague Convention cases].” At the time, the study was unpublished and not subject
to peer review.
Dr. Colores objected to the proposed testimony, noting that the witness had not
been disclosed previously and had not examined I.R.C. or interviewed either of her
parents. Dr. Colores argued that the proffer consisted of a generalized summary of
phenomena associated with domestic abuse and was irrelevant to the specific issues
at issue in the proceedings. Dr. Colores also maintained that such testimony would
not shed light on the specific claims Ms. Colores made, but would only extend the
proceedings and thereby exacerbate his financial hardship. The district court excluded
Dr. Edleson’s testimony, concluding that it was unreliable and irrelevant.
D. The District Court’s Ruling
On September 14, 2010, the district court entered an order granting Dr.
Colores’s petition. It did “not find credible Ms. Colores’s allegations that there is a
grave risk that I.R.C. would be exposed to physical or psychological harm or
otherwise be placed in an intolerable situation if she were returned to Mexico.” D. Ct.
Order of Sept. 14, 2010, at 17. It cited findings of a pediatric neurologist who had
examined I.R.C. at the district court’s request and who opined, based on his
examination and on I.R.C.’s normal, age-appropriate neurological development, that
there was no evidence of any neurologic injury. The district court also found that Ms.
Colores had never reported any injury and had been willing to leave I.R.C. with Dr.
Colores for ten days when she returned to the United States to attend a funeral.
On September15, the day after the district court entered the order, Ms. Colores
moved for an emergency stay of the judgment. That motion was granted, but not
before Dr. Colores departed for Mexico with I.R.C. On September 17, the district
court ultimately denied Ms. Colores’s motion for a stay, and Ms. Colores timely filed
her notice of appeal.

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II.
Ms. Colores contends that the district court erred in refusing to grant her motion
for a continuance and in excluding proffered testimony from John Gangl and Dr.
Edleson. She argues that we should vacate the district court’s order and remand the
case with instructions to allow her adequate time to collect evidence to contest the
petition and to present the previously excluded testimony.
A. Motion for Continuance
We review the denial of a motion for a continuance for abuse of discretion.
Beard v. Flying J, Inc., 266 F.3d 792, 802 (8th Cir. 2001).
Ms. Colores’s motion for a continuance was based on her claim that she needed
to gather evidence that was located in Mexico. According to Ms. Colores, the
evidence consisted of witness statements and videotapes from surveillance cameras
of the gated community in which she and Dr. Colores had lived, as well as a copy of
a report she had allegedly filed with the U.S. Embassy documenting Dr. Colores’s
abuse of herself and of I.R.C.
Dr. Colores contends that Ms. Colores failed to establish that the evidence she
sought was material and that the district court appropriately denied the motion in light
of the prejudice Dr. Colores suffered from continued delay and the primacy placed on
expediency in Convention proceedings. Given the underlying circumstances and the
professed goal of expediency in Convention proceedings, we agree that the district
court did not abuse its discretion in denying the motion.

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B. Exclusion of Witness Testimony
“A district court enjoys wide discretion in ruling on the admissibility of
proffered evidence, and evidentiary rulings should only be overturned if there was a
clear and prejudicial abuse of discretion.” Bady v. Murphy-Kjos, 628 F.3d 1000,
1002-03 (8th Cir. 2011) (citation omitted). “To warrant reversal, an error must affect
a substantial right of the objecting party, and the burden of showing prejudice rests on
that party.” Gill v. Maciejewski, 546 F.3d 557, 562 (8th Cir. 2008) (internal quotation
and citation omitted).
Ms. Colores maintains that her stepfather’s testimony would have corroborated
her account of Dr. Colores’s rage and anger. The incident at the heart of the proffer
occurred in December 2008, when Gangl and Dr. Colores argued on the telephone
after Dr. Colores refused to pick up Barbara Jo from the airport when she came to visit
and instead asked that she take a cab to the house. After hearing the details of the
phone conversation and determining that Gangl was not physically present with I.R.C.
when it occurred, the district court concluded that the proffered testimony was not
relevant and excluded it.
At best, the proffered testimony repeated Ms. Colores’s account of her
husband’s behavior on the night of the telephone call. But I.R.C. was not implicated
in the particulars of the phone call, and Gangl’s proffered testimony would have been
cumulative of prior testimony from Ms. Colores and her mother. Accordingly, we
cannot say that the district court abused its discretion in excluding this testimony.
Ms. Colores argues that the district court abused its discretion in excluding
testimony from Dr. Edleson. Federal Rule of Evidence 702 governs the admission of
expert testimony and requires that the district court function as a gatekeeper to “ensure
that any and all scientific testimony or evidence is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). “If scientific,

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2Ms. Colores challenges this finding and contends that Dr. Edleson had
conducted an interview of the parties at some point during the course of the
proceedings. She nonetheless concedes that her trial counsel failed to inform the
district court of this fact at the time of the proffer or thereafter. Appellant’s Br. at
22 n.2. The district court is not to be faulted for failing to consider information of
which it was not made aware.
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technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue,” an expert may testify in the form of an
opinion or otherwise so long as “(1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case.” Fed.
R. Evid. 702.
We need not determine whether Dr. Edleson’s testimony was unreliable simply
because the report that would have served as its basis had not yet been published or
peer-reviewed, for we conclude that the district court did not abuse its discretion in
excluding the testimony as irrelevant after finding that Dr. Edleson had not
interviewed either of the parties or I.R.C.2 The district court concluded that Dr.
Edleson’s testimony would not have directly aided the fact-finder in sorting out
whether abuse had occurred and, if so, what effect it had on I.R.C. It emphasized that
there was little physical evidence of abuse or mistreatment and that the veracity of the
allegations of abuse turned primarily on the credibility of the parties’ testimony.
Questions of admissibility “are not to be measured by what we may have done
were we the district court,” but whether its evidentiary decisions constitute “a clear
abuse of discretion.” Dunn v. Nexgrill Indus., Inc., 636 F.3d 1049, 1057 (8th Cir.
2011). Ms. Colores has not demonstrated that excluding the testimony was so
prejudicial as to require reversal. She did not contend that Dr. Edleson had concluded
that Ms. Colores or I.R.C. had been abused or that I.R.C. faced a grave risk of harm

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if she were returned to Mexico. So far as the district court was aware, Ms. Colores did
not contend that Dr. Edleson had formed any opinion as to I.R.C.
In light of these circumstances, we do not believe that the proffered testimony
was “of such a critical nature that there is no reasonable assurance that the [fact-
finder] would have reached the same conclusion had the evidence been admitted.”
Cavataio v. City of Bella Villa, 570 F.3d 1015, 1021 (8th Cir. 2009) (citation omitted).
Accordingly, we conclude that the exclusion of Dr. Edleson’s testimony does not
warrant reversal.
III.
The judgment is affirmed.
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