Motion for a new trial; Whether an evidentiary error was harmful & prejudicial; The “fair assurance” test; Schrand v Federal Pac Elec Co; Whether a party’s closing argument comments warranted a new trial

The court held that the district court did not abuse its discretion by ruling that the erroneous preclusion of evidence did not affect defendant-U.S. Nursing’s substantial rights and by denying its motion for a new trial. Defendant and plaintiff-Appalachian entered into an agreement for defendant to provide plaintiff’s hospital with nurses during a strike. Defendant agreed to indemnify and defend plaintiff for any negligence by the assigned employees. This action for indemnification arose from the costs plaintiff incurred in a state-court lawsuit based on a nurse’s alleged involvement in exacerbating a patient’s injuries. The state-court case settled. In this case, the district court granted plaintiff’s motion in limine, prohibiting any argument or testimony that nurses who were its employees (H and P) were involved. In closing argument, plaintiff argued there was no evidence that either H or P had moved the patient, and that defendant failed to offer evidence or argument that either was the one who did. Defendant did not object to the statement. But on appeal it argued that these remarks were “inappropriate and prejudicial because U.S. Nursing was prohibited from making such an argument by the district court’s granting of the motion in limine.” Plaintiff prevailed at trial. After a prior appeal and remand, the district court declined to order a new trial. In this appeal, the court first noted there has been conflict in the circuit as to “how to determine whether an evidentiary error was harmful.” The court held that it was bound by the decision in Schrand, which “adopted the ‘fair assurance’ test, holding that ‘[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.’” In concluding the district court did not abuse its discretion in denying defendant a new trial, the court noted the district court observed that the motion in limine did not ask it to prohibit defendant “from introducing any evidence at trial that” its employee (F) “‘did not move’” the patient. Thus, defendant was “not prohibited from introducing much of the evidence it highlights in its briefs.” As a result, the district court did not abuse its discretion by determining it had a “fair assurance” that the trial’s outcome was not “substantially swayed” by its evidentiary error. The court noted that the excluded evidence did “very little to support” defendant’s argument that F did not move the patient. Further, the motion in limine was granted after the close of discovery. As to plaintiff’s attorney’s closing argument comments, while the district court did not consider this issue, the court concluded “that although the comments were inappropriate, they do not mandate a new trial.” Affirmed.