Michael Lewis Scott v. Watsontown Trucking Co. Inc.; William A. Miller, Iii

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1228
MICHAEL LEWIS SCOTT,
Plaintiff - Appellant,
v.
WATSONTOWN TRUCKING CO. INC.; WILLIAM A. MILLER, III,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. David Novak, Magistrate
Judge. (3:12-cv-00176-DJN)
Submitted: June 17, 2013 Decided: July 18, 2013
Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
John R. Garza, Bradley N. Kehr, GARZA, REGAN & ASSOCIATES, P.C.,
Rockville, Maryland, for Appellant. John K. Messersmith, IV,
James H. Revere, III, KALBAUGH, PFUND & MESSERSMITH, P.C.,
Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Lewis Scott brought negligence claims in the
district court against Watsontown Trucking Company (“Watsontown
Trucking”) and William A. Miller (collectively, “Defendants”).
In his complaint, Scott alleged that Miller’s negligent
operation of a Watsontown Trucking vehicle resulted in a
collision with Scott in which Scott suffered injuries. At
trial, Scott failed to testify on his own behalf, and the
district court provided the jury with a “missing witness”
instruction, over Scott’s objection.1 The jury returned a
verdict of no liability, and after denying Scott’s motion for a
new trial, the district court entered judgment in favor of
Defendants. Scott now appeals that judgment. For the following
reasons, we affirm.
I.
Although the parties dispute many of the material facts in
this case, it is undisputed that on July 20, 2010, Miller, a
Watsontown Trucking employee, was operating a tractor trailer
1 By the parties’ consent, a magistrate judge presided over
all aspects of this matter. See 28 U.S.C. § 636(c)(1). All
references to “the district court” in this opinion refer to the
magistrate judge.

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owned by Watsontown Trucking.2 As Miller was making a left turn
from Broad Street onto Parham Road in Richmond, Virginia, he
collided with a motorcycle driven by Scott, who was proceeding
southbound on Broad Street. Scott suffered personal injuries as
a result of the accident. As the district court succinctly
explained, the dispute at trial “boil[ed] down to whether . . .
Miller had a green light when he turned left from Broad Street
onto Parham Road and if not, whether [Scott] acted with
contributory negligence.” (J.A. 606.)
Scott filed a complaint against Defendants in the United
States District Court for the Eastern District of Virginia.3 In
his complaint, Scott brought various negligence claims arising
out of the vehicle accident and sought damages. Miller and
Watsontown Trucking answered, and the case proceeded to trial by
jury.
Prior to trial, Scott, believing that Miller would not
testify, requested that the court provide the jury with Virginia
Model Jury Instruction Civil No. 2.080, which would permit the
2 Based on the jury’s verdict, we view the facts in the
light most favorable to the prevailing party, Defendants. See
United States v. Cone, 714 F.3d 197, 201 n.1 (4th Cir. 2013).
3 Because the parties to the action were diverse and the
amount in controversy exceeded $75,000, the district court
properly exercised diversity jurisdiction over Scott’s personal
injury claim. See 28 U.S.C. § 1332.

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jury to infer from the unexplained failure to call an important
witness that the witness’ testimony was not favorable to the
party who failed to call the witness (referred to hereinafter as
the “missing witness” instruction). Although the court denied
the request, Miller ultimately testified at trial.
Also prior to trial, Scott’s counsel tendered witness lists
to the court that indicated Scott would be called as a witness,
and the district court itself labored under the belief that
Scott would testify at trial. Only near the end of trial did
counsel for Scott finally inform the court that Scott would not
be taking the witness stand. Indeed, Scott never even appeared
in the courtroom during the proceedings.
During trial, Scott (through counsel) elicited testimony
from one of Scott’s physicians, Dr. Steven Macedo
(“Dr. Macedo”), who averred that he advised Scott not to attend
the trial because protracted sitting would cause his chronic
pain (as a result of injuries incurred during the collision in
question) to “spike.” Dr. Macedo did not, however, explain
whether he advised Scott not to testify, or otherwise opine on
the advisability of Scott testifying at trial.4
4 Indeed, Scott was deposed prior to trial, and there is no
indication in the record that he was unable to sit for the
length of his deposition. Scott did not introduce any portion
of the deposition into evidence, and the contents are only in
the record pursuant to a post-trial order of the district court.

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On learning that Scott would not testify, the district
court asked counsel for Scott whether counsel would be able to
accept a subpoena on Scott’s behalf, compelling him to testify
the next day. Counsel indicated that he could not accept
service of a subpoena, and that in any event, a subpoena would
be untimely pursuant to the local rules of the Eastern District
of Virginia.
When Scott failed to testify or make himself amenable to a
subpoena, Defendants requested that the jury be given the same
missing witness instruction which Scott had proposed earlier.
The district court initially declined to give the instruction,
but sua sponte reconsidered its decision that evening. Prior to
the district court’s charge conference, the court provided the
parties with draft jury instructions, including the missing
witness instruction. Scott objected to the instruction, which
was overruled on the basis that Scott offered evidence about his
recollection of the accident and, by calling Dr. Macedo, Scott
placed his ability to attend the trial in controversy. The
court therefore gave the following instruction in charging the
jury:
Let’s talk . . . about the unexplained failure to
produce an important witness. If you believe that a
party, without explanation, failed to call an
available witness who has knowledge of necessary and
material facts, you may presume that witness’

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testimony would have been unfavorable to the party who
failed to call the witness.5
(J.A. 382.)
The jury returned a special verdict, specifically finding
that Scott failed to prove by a preponderance of the evidence
that Miller was negligent. The jury never reached the question,
therefore, of whether Scott was contributorily negligent, and
never considered damages.
Scott then moved for a new trial pursuant to Federal Rule
of Civil Procedure 59. The district court held a hearing on the
motion before denying it by written opinion. The court
concluded that Scott, who had initially requested a missing
witness instruction as to Miller, could not later object when
the court gave an identical instruction after Scott failed to
testify. Moreover, the court expressed considerable concern
that it had been misled by “gamesmanship” on the part of Scott’s
counsel, and again observed that Scott had placed the matter of
his absence in controversy by introducing testimony from Dr.
Macedo. (J.A. 614.)
The court then entered judgment in favor of Defendants.
Scott noted a timely appeal, and we have jurisdiction pursuant
to 28 U.S.C. § 1291.
5 The district court’s missing witness instruction is
identical to Virginia Model Jury Instruction Civil No. 2.080.

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II.
Scott raises myriad issues on appeal, but at bottom, he
simply assigns error to the district court’s decision to give a
missing witness instruction, and its subsequent decision denying
Scott’s motion for a new trial. Finding no error in either
respect, we affirm.
We review the court’s jury instructions for abuse of
discretion. See A Helping Hand, LLC v. Baltimore Cnty., Md.,
515 F.3d 356, 370 (4th Cir. 2008). Of course, “[a]n error of
law constitutes an abuse of discretion.” Id. The “judgment
will be reversed for error in jury instructions,” however, “only
if the error is determined to have been prejudicial, based on a
review of the record as a whole.” Abraham v. Cnty. of
Greenville, S.C., 237 F.3d 386, 393 (4th Cir. 2001) (quotation
marks omitted). Similarly, we review the denial of a motion for
a new trial under Rule 59 for abuse of discretion. Robinson v.
Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009).
III.
In this diversity action, we apply the substantive law of
the forum state, Virginia. See Erie R.R. Co. v. Tompkins, 304
U.S. 64, 78 (1938). Before considering whether the legal
elements for a missing witness instruction were met under

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Virginia law, we observe at the outset that “[b]ecause we
recognize that an aura of gamesmanship frequently accompanies
requests for missing witness charges, we afford district judges
considerable discretion in deciding when they should and should
not be given.” United States v. Gaskin, 364 F.3d 438, 463 (2d
Cir. 2004) (internal citation and quotation marks omitted);
accord VRCompliance LLC v. HomeAway, Inc., 715 F.3d 570, 575
(4th Cir. 2013) (“[A]ppellants’ procedural gamesmanship renders
us unable to say that the district court abused its
discretion.”).
In this case, we find significant that the district court
was confronted with considerable gamesmanship throughout the
course of the litigation below. As the court observed,
the gamesmanship here was not limited only to [Scott]
seeking the instruction, then objecting to the same
instruction when Defendants sought it. . . . [Scott’s]
counsel led the Court to believe that [Scott] was
going to testify and, importantly, gained a litigation
advantage from that misdirection. And after [Scott’s]
counsel finally made clear that [Scott] would not
testify and defense counsel requested the missing
witness instruction, the Court sought to cure the
situation by inquiring whether [Scott’s] counsel would
accept service of a defense subpoena for [Scott’s]
testimony the next day, which [Scott’s] counsel
rejected. [Scott’s] counsel also indicated that a
request for a subpoena at that time was untimely,
which was accurate. Consequently, [Scott’s] challenge
to the missing witness instruction must be viewed
within the context of his counsel’s gamesmanship.
(J.A. 614 (internal citations omitted).)

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In this case, the able magistrate judge who presided over
the trial was able to evaluate, first hand, Scott’s counsel’s
actions, and fashion an appropriate remedy. The court noted
that Scott’s counsel asked for, and later objected to, the
missing witness instruction, “misdirect[ed]” the court as to
whether Scott himself would testify, and thwarted the court’s
initial attempts to amicably resolve the missing witness dispute
by subpoenaing Scott to testify. (Id.) Under these
circumstances, we cannot say that the district court abused its
considerable discretion in giving the missing witness
instruction.
Out of an abundance of caution, however, we will briefly
analyze whether, as a matter of Virginia law, the elements were
met for the giving of a missing witness instruction. As the
Supreme Court of Virginia has explained, the missing witness
instruction is a “statement of the settled rule that the
unexplained failure of a party to call an available material
witness gives rise to an inference, sometimes called a
presumption, that the testimony of such absent witness would be
adverse to such party.” Neeley v. Johnson, 211 S.E.2d 100, 107
(Va. 1975). The missing witness instruction has two elements:
availability and materiality. See id.
Availability may be translated as the power of the
party to produce. Probable availability rather than
actual availability may be sufficient depending upon

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the state of the evidence in each case. The lack of
power or nonavailability may be due to the person's
absence from the jurisdiction, his illness, the
party’s ignorance of the whereabouts of the witness,
the person's testimony being inadmissible, or other
like circumstances. “Available” is equated to
“control” in some cases, that is, the witness is
available if he “is in such relationship with the
party that it is likely that his presence could be
procured.” Nonavailability may be explained and the
inference, or presumption, rebutted when the litigant
explains the absence.
Id. (internal citations omitted).
Scott first argues that the district court improperly
placed the burden on him to show that he was unavailable and his
testimony immaterial.6 Rather, he argues, the burden should have
been placed on Defendants.
Our review of the record, however, belies Scott’s
assertion. We are unable to identify where in the record the
court improperly assigned the burden to show availability and
materiality. The discussion cited in Scott’s brief contains no
mention of burdens, and we are unable to discern where any
alleged error occurred. More to the point, however, to the
6 Scott argues, as a threshold matter, that this Court
should abrogate or abandon the missing witness instruction as no
longer appropriate. As this argument was not raised in the
district court, it is deemed waived and we will not consider it
for the first time in this appeal. See Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993) (issues raised for first time on
appeal are considered waived absent exceptional circumstances).

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extent that the district court did misallocate the burdens,
Scott cannot demonstrate prejudice.
The allocation of burdens is subject to harmless error
review. See Belk v. Charlotte-Mecklenburg Bd. of Educ., 269
F.3d 305, 328 (4th Cir. 2001) (en banc) (“[B]ecause the district
court’s findings, which were based on the court’s weighing of
all of the relevant evidence presented at trial, would have
yielded the same conclusion under a proper assignment of the
burden of proof, any error with regard to the burden of proof is
harmless.”). For the reasons explained below, the district
court had ample evidence that Scott was available as a witness
only to his own cause, and his testimony was material.
It is clear that, as the plaintiff, Scott was available to
testify on his own behalf. See Neeley, 211 S.E.2d at 107
(“[T]he witness is available if he ‘is in such relationship with
the party that it is likely that his presence could be
procured.’”). As plaintiff, it was “likely” that Scott could
have procured his own presence. The only evidence in the record
regarding Scott’s availability came from Dr. Macedo, who
testified on the advisability of Scott’s continued attendance at
trial. Dr. Macedo never discussed whether Scott could testify.
Indeed, the record suggests that Scott was deposed for several
hours leading up to trial with no apparent concerns.
Importantly, Scott himself concedes that he was available to

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testify when he states on appeal that “[h]ad Plaintiff been
aware that the missing witness instruction would be given, he
would certainly have testified.” (Opening Br. of Appellant at
30.)
Scott argues, however, that he was similarly available to
Defendants. He observes that he appeared on Defendants’ witness
list, and would have been available had he been properly
subpoenaed. But this contention ignores the fact that Scott led
the court and Defendants to believe that he would in fact
testify until well after the deadline for obtaining a timely
subpoena. The district court even went so far as to exclaim
that “never in my life did I think that the Plaintiff was not
going to be testifying in this case.” (J.A. 332.) Under these
circumstances, it strains credulity to suggest that Scott was
equally available to Defendants.
Similarly, it is clear that Scott’s testimony would have
been material. Scott suggests in his brief that his testimony
was not material for two reasons: that he suffered from amnesia
and would be unable to recall the accident; and that his
testimony would have been merely cumulative because the court
heard from other eyewitnesses to the accident. We find neither
reason persuasive.
Scott’s claim that he suffered from amnesia is belied by
even a cursory review of the record. In his deposition (which

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was only made part of the record by order of the district
court), Scott testified at length as to the events leading up
to, and including the accident. And during trial, one of
Scott’s treating physicians opined that Scott had at least
“partial recollection” of the accident, and that “[i]f he had
amnesia for any period of time, it was extremely short.” (J.A.
314.) In other words, there was ample evidence from which the
district court could conclude that Scott had sufficient memory
that he could testify to at least some of the events that
transpired when the accident occurred.
We are similarly not persuaded that Scott’s testimony would
have been merely cumulative, especially in the context of a
trial about whether Scott was contributorily negligent. The
district court observed at length the myriad subjects over which
Scott, and Scott alone, could testify. These include Scott’s
training and experience with a motorcycle, Scott’s admission (in
his deposition) that he stalled the motorcycle a few blocks from
the accident, and his familiarity with the intersection.
Moreover, only Scott could provide evidence as to the ongoing
significance of the injuries to him, thus laying a foundation
for damages.
Critical, moreover, to our discussion of materiality is the
district court’s analysis of the inconsistencies between Scott’s

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deposition testimony and other evidence adduced by Scott
throughout the trial.
For example, [Scott] testified that he did not stop at
the intersection and intended to keep moving through
the intersection when the accident occurred. Yet, two
of [Scott’s] eyewitnesses . . . testified that
Plaintiff stopped at the intersection before he
entered it. Indeed, contrary to [Scott’s] testimony
during the deposition, the parties stipulated that
“prior to the incident, Mr. Scott was stopped at the
white cross line, slash, stop bar in the middle lane
of West Broad Street.” Perhaps this significant
inconsistency explains [Scott’s] decision not to
testify.
(J.A. 624 (internal citations omitted).)
In short, there can be little doubt that Scott was
available to testify, and would have provided material
testimony. Accordingly, the district court did not err in
giving the missing witness instruction, and similarly did not
err in denying Scott’s motion for a new trial.7
7 Scott raises two additional claims of error that we will
briefly dispense with. He asserts first that the district court
erred by reversing its decision not to give a missing witness
instruction. But Scott has not identified how he was prejudiced
in any way by the court’s change of heart. In the absence of
any prejudice, we decline to say that the court committed
reversible error.
Scott also claims that the court erred by excluding certain
medical evidence. Again, however, Scott cannot demonstrate
prejudice. The jury concluded specifically that the Defendants
were not negligent. It thus never considered damages—the only
issue to which the medical evidence would have been germane.

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IV.
For the foregoing reasons, the judgment of the district
court is affirmed. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED

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