Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT TRAUM’S MOTION FOR NEW TRIAL AND PLAINTIFF’S APPLICATION FOR FEES AND COSTS TABLE OF I. BACKGROUND .........................................................1092 II. LEGAL ANALYSIS......................................................1093 A. Motion For New Trial.................................................1093 1. Standards for a new trial...........................................1093 2. Sufficiency of the evidence..........................................1093 3. Improper jury instruction..........................................1095 4. Improper interjection of the judge into the proceedings................1097 a. Judicial deportment............................................1097 b. Combative atmosphere.........................................1098 e. Judicial intervention ...........................................1101 5. Improper evidentiary rulings.......................................1105 a. Testimony of plaintiffs expert...................................1105 b. Post-incident language and behavior .............................1106 e. Valium.......................................................1106 d. Pre-incident arrests and incarceration............................1106 e. Circumstances of Schultz’s arrest................................1107 f. The medical records ...........................................1107 6. Summary........................................................1108 B. Application For Fees And Costs........................................1108 1. Authority for and purpose of fee awards..............................1108 2. “Prevailing party”.................. 1109 3. Calculation.......................................................1110 a. Partial success................................................1111 b. Excessive hourly rate..........................................1113 e. Hours not reasonably expended .................................1114 4. Costs............................................................1116 5. Summary........................................................1116 III. CONCLUSION..........................................................1117 BENNETT, District Judge. In this “excessive force” case brought by an arrestee pursuant to 42 U.S.C. § 1983, the only defendant found liable, a county corrections officer, has moved for a new trial on the grounds that the trial judge improperly interjected himself into the proceedings, the jury’s verdict is not supported by the weight of the evidence, the trial court committed errors of law in jury instructions, and the trial court’s evidentiary rulings improperly purged the record of evidence negative to the plaintiffs case while permitting improper expert testimony, thus substantially affecting the defendant’s right to a fair trial. The plaintiff resists the motion for a new trial on every ground. The plaintiff has also moved for an award of fees and costs as a prevailing party in the litigation. The defendant held liable resists the fee application on the ground that it is excessive in terms of hours spent, hourly rate claimed, and the plaintiffs limited success against only one of several defendants on only one of several claims. The senior judge who tried the case has recused himself, and these matters have therefore been reassigned to this district judge. I. BACKGROUND Plaintiff Jeffrey S. Schultz filed this lawsuit on July 29, 1994, alleging both federal and state claims arising from an incident during his intake at the Woodbury County Jail after his arrest on August 13, 1993. Schultz alleged that, while shackled, he was grabbed in a headlock, attacked by several jail officers, and dropped to the floor. As the result of this incident, Schultz alleged that he suffered a broken jaw and loosened or broken teeth. The incident was recorded on videotape, with audio, and the tape was introduced into evidence at the trial. Schultz named as defendants in his lawsuit Dave Amick, the Sheriff of Woodbury County; Todd C. Traum, Mark Pennings, Steven Saunders, and Gary Moore, all corrections officers in the Woodbury County Sheriffs Office; Woodbury County; Gary Maas, the Chief of Police of the City of Sioux City; Dave Jensen, a Sioux City police officer; and the City of Sioux City. Schultz’s federal claims, brought pursuant to 42 U.S.C. §§ 1983 and 1985, alleged deprivation of Schultz’s constitutional rights and conspiracy to deprive him of his constitutional rights premised on use of excessive force. Schultz’s state common-law claims alleged assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, “negligence,” “recklessness,” and “re-spondeat superior.” Jensen, Maas, and the City of Sioux City were dismissed from the lawsuit on their motion for summary judgment on the ground that these defendants had no duty to intervene in the altercation Schultz alleged caused his injuries. Before trial, Schultz abandoned his claims against defendants Woodbury County and Dave Amick, as well as his statutory conspiracy and common law tort claims. Only the § 1983 “excessive force” claim remained for trial. The case, which was tried to a jury, began on April 2, 1996, and was presided over by a senior judge of this district. Prior to and during the trial, the court made various evi-dentiary rulings that are challenged here and also promulgated jury instructions, one of which is challenged here. In addition, the court made comments or took actions in the case, in chambers and in open court during trial, that Traum asserts entitle him to a new trial. Traum contends that comments made by the trial judge to counsel after the trial indicate the pervasiveness of the trial judge’s bias against defendants and their counsel before and during the trial. On April 5, 1996, the parties rested and the matter was submitted to the jury. After approximately seven or eight hours of deliberation, the jury returned a verdict in favor of Schultz against defendant Traum. However, the jury found in favor of the remaining defendants. The jury awarded damages against Traum in the amount of approximately $64,700. On April 15,1996, Traum moved for a new trial and also moved for the trial judge to recuse himself. The parties each filed initial briefs on these motions. On June 20, 1996, Schultz filed a claim for approximately $115,-000 in fees and expenses as a “prevailing party” in the litigation. Traum subsequently resisted that motion. On August 23, 1996, the judge who had presided at trial recused himself. The pending motions were then reassigned to me. After the case was reassigned, because this judge had not presided at the trial, the court held a status conference on the preparation of a transcript and established an extended briefing schedule to allow the parties to supplement their briefs on the motion for new trial with excerpts from the trial transcript. Those supplemental briefs were subsequently filed by each party, and the court held a hearing on Traum’s motion for new trial and Schultz’s application for fees and costs on January 28, 1997. At the hearing on January 28, 1997, as at trial, plaintiff Jeffrey S. Schultz was represented by counsel William L. Kutmus and Mark S. Pennington of Kutmus & Pennington, P.C., in Des Moines, Iowa. Defendant Todd C. Traum, the movant for new trial, was represented by the same counsel who had represented all defendants at trial, Douglas L. Phillips of Klass, Stoos, Stoik, Mugan, Villone & Phillips, L.L.P., of Sioux City, Iowa. II. LEGAL ANALYSIS A. Motion For New Trial At oral arguments on the pending motions, counsel for Traum characterized the motion for new trial as asserting two principal grounds for relief: First, that the central liability instruction was legally erroneous, because it allowed the jury to find a constitutional violation premised on mere negligence; and second, that the trial was fundamentally unfair, because of prejudicial evidentiary rulings and the improper participation of the judge. However, the written moving papers and briefs also assert a third ground for relief, which is that the verdict is against the substantial weight of the evidence. The court will consider this last ground first, then consider the other two grounds, which involve a variety of subissues, seriatim. 1. Standards for a new trial Federal Rule of Civil Procedure 59, entitled “New Trials; Amendment of Judgments,” states in relevant part: (a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States____ Fed.R.Civ.P. 59(a). The authority to grant a new trial is within the discretion of the district court. Gray v. Bicknell, 86 F.3d 1472, 1480-81 (8th Cir.1996). Thus, the district court’s denial of a motion for new trial is reviewed for abuse of discretion. Dole v. USA Waste Servs., Inc., 100 F.3d 1384, 1387 (8th Cir.1996); Gray, 86 F.3d at 1480-81; Pulla v. Amoco Oil Co., 72 F.3d 648, 656 (8th Cir.1995) (“We have made clear that district courts enjoy broad discretion in choosing whether to grant a new trial, and thus, we accord great deference to their Rule 59 rulings,” and noting further that denial of a motion for new trial may be reversed where the district court’s judgment rests on an erroneous legal standard or where the verdict is against the weight of the evidence). The Eighth Circuit Court of Appeals recently observed that “Federal Rule of Civil Procedure 59 confirms the trial court’s historic power to grant a new trial based on its appraisal of the fairness of the trial and the reliability of the jury’s verdict.” Gray, 86 F.3d at 1480. More specifically, [a] new trial is appropriate when the first trial, through a verdict against the weight of the evidence, an excessive damage award, or legal errors at trial, resulted in a miscarriage of justice. White v. Pence, 961 F.2d 776, 780 (8th Cir.1992); Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 187 (8th Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973). Gray, 86 F.3d at 1480. Traum asserts that a new trial is appropriate on the basis of a verdict against the weight of the evidence and other legal errors resulting in a miscarriage of justice. 2. Sufficiency of the evidence One of Traum’s grounds for a new trial is that the jury’s verdict is against the weight of the evidence. Regarding motions for new trial based on weight of the evidence, the court in White v. Pence, 961 F.2d 776 (8th Cir.1992), observed: With respect to motions for new trial on the question of whether the verdict is against the weight of the evidence, we have stated: “In determining whether a verdict is against the weight of the evidence, the trial court can rely on its own reading of the evidence — it can “weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain a verdict.’ ” Ryan v. McDonough Power Equip., 734 F.2d 385, 387 (8th Cir.1984) (citation omitted). Similar language appears in Brown [v. Syntex Laboratories, Inc.], 755 F.2d [668] at 671-73 [ (8th Cir.1985) ]; Slatton [v. Martin K. Eby Constr. Co., Inc.], 506 F.2d [505,] 508 n. 4 [ (8th Cir.1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975) ]; Bates [v. Hensley], 414 F.2d [1006,] 1011 [ (8th Cir.1969)], and early authority cited in Bates. See also Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1266 (8th Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 161, 98 L.Ed.2d 116 (1987). Id. at 780. Thus, the court in Pence concluded the district court may grant a new trial on the basis that the verdict is against the weight of the evidence, if the first trial results in a miscarriage of justice. Id.; see also Shaffer v. Wilkes, 65 F.3d 115, 117 (8th Cir.1995) (citing Pence for this standard); Rush v. Smith, 45 F.3d 1197, 1203 (8th Cir.) (also citing Pence for this standard), cert. denied, — U.S. -, 116 S.Ct. 409, 133 L.Ed.2d 328 (1995); Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 800 (8th Cir.1994) (“[A] motion for a new trial should be granted if, after weighing the evidence, a district court concludes that the jury’s verdict amounts to a miscarriage of justice.”); Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1266 (8th Cir.) (correct standard for new trial is conclusion that “the [jury’s] verdict was against the ‘great weight’ of the evidence, so that granting a new trial would prevent a miscarriage of justice.”), cert. denied, 513 U.S. 989, 115 S.Ct. 487, 130 L.Ed.2d 399 (1994). Furthermore, where the basis of a Rule 59 ruling is that the verdict is not against the weight of the evidence, and where the district court balances and weighs the evidence based on the proper legal standards, [White, 961 F.2d at 781], the court’s denial of a Rule 59 motion is virtually unassailable, Keenan v. Computer Associates International, Inc., 13 F.3d 1266, 1269 (8th Cir.1994). In such cases, we reverse for a clear abuse of discretion only where there is an “absolute absence of evidence” to support the jury’s verdict. Gopher Oil Co. v. Union Oil Co. of California, 955 F.2d 519, 526 (8th Cir.1992). Pulla, 72 F.3d at 656-57; see also Bunting v. Sea Ray, Inc., 99 F.3d 887, 890 (8th Cir.1996) (also stating that denial of a motion for a new trial on grounds that the jury’s verdict is against the weight of the evidence is “ ‘virtually unassailable on appeal,’ ” quoting Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.1990), in turn quoting Grogg v. Missouri Pac. R.R., 841 F.2d 210, 214 (8th Cir.1988)). This court has reviewed the evidence submitted at trial, not just the videotape of the incident giving rise to Schultz’s claims, but the trial transcript, and concludes that there is far from an “absolute absence of evidence” to support the jury’s verdict. Pulla, 72 F.3d at 656-57; Gopher Oil Co., 955 F.2d at 526. Applying the applicable standard of liability in excessive force cases, as formulated, for example, in Eighth Circuit Model Civil Jury Instructions 4.10 and 4.20, this court cannot find that the jury’s verdict is against the weight of the evidence submitted or that its verdict on the evidence submitted is a miscarriage of justice. Pence, 961 F.2d at 780. Traum is not entitled to a new trial on this ground. 3. Improper jury instruction Another ground for granting a new trial, and one that is also asserted here, can be improper instructions to the jury where those improper instructions cause material prejudice. Gray, 86 F.3d at 1485; Fink v. Foley-Belsaw Co., 983 F.2d 111, 114 (8th Cir.1993) (an improper jury instruction or failure to comply with Rule 51 may be a ground for a new trial, but only if the moving party can show material prejudice). When confronted with an argument for a new trial based on improper jury instructions, the Eighth Circuit Court of Appeals recently stated the following: The district court has broad discretion to instruct the jury in the form and language it considers fair and adequate to present the substantive law. Grogan v. Garner, 806 F.2d 829, 836 (8th Cir.1986); James E. Brady & Co., Inc. v. Eno, 992 F.2d 864, 868 (8th Cir.1993). A party is entitled to an instruction reflecting that party’s theory of the case if the instruction is legally correct and there is evidence to support it. Bursch v. Beardsley & Piper, 971 F.2d 108, 112 (8th Cir.1992). A party is not, however, entitled to a specific formulation of an instruction. United States v. Ribaste, 905 F.2d 1140, 1143 (8th Cir.1990). In reviewing the district court’s instructions, we consider whether the charges, taken as a whole and viewed in light of the evidence and the applicable law, fairly and adequately submitted the issues in the case to the jury. Jones v. Board of Police Comm’rs, 844 F.2d 500, 504 (8th Cir.1988), cert. denied, 490 U.S. 1092, 109 S.Ct. 2434, 104 L.Ed.2d 990 (1989). We will not reverse absent harmful error. There is no harmful error if the charge, in general, correctly instructs the jury, even if one portion is technically incorrect. Westborough Mall, Inc. v. City of Cape Girardeau, 794 F.2d 330, 335 (8th Cir.1986), cert. denied, 480 U.S. 918, 107 S.Ct. 1373, 94 L.Ed.2d 688 (1987). “ ‘The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues.’” Id. (quoting Houston v. Herring, 562 F.2d 347, 349 (5th Cir.1977) (per curiam)). Gray, 86 F.3d at 1485; Bening v. Muegler, 67 F.3d 691, 695 (8th Cir.1995). Traum’s objection focuses on the first element of the liability instruction in this excessive force case, Instruction No. 9. The pertinent portion of the instruction is as follows: One the defendants and the plaintiff were involved in an altercation wherein force was used thereby creating a situation where the plaintiff, while in the physical control of the defendants, either fell or was dropped to the ground____ Instruction No. 9. Traum’s specific objection is to the inclusion of the words “either fell or,” which he asserts allowed the jury to find liability on the basis of mere negligence. Traum contends that the plaintiff would only have fallen if someone lost his hold inadvertently. Traum asserts that the jury should have been required to find that Schultz “was dropped” in order to find that the force used was excessive. Apparently, Traum’s argument is that a finding that Schultz “was dropped” would show intentional conduct upon which liability could be founded, not merely inadvertence or negligence. Traum is correct that liability in a § 1983 “excessive force” action cannot be founded on mere negligence. See, e.g., Daniels v. Williams, 474 U.S. 327, 335-36, 106 S.Ct. 662, 667, 88 L.Ed.2d 662 (1986) (a negligence claim does not support a § 1983 action); Estes v. Moore, 993 F.2d 161, 163-64 (8th Cir.1993) (evidence of negligence is properly excluded in a § 1983 action alleging excessive force, because such an action is not a tort action in which negligence is sufficient for liability); Roach v. City of Fredericktown, Mo., 882 F.2d 294, 297 (8th Cir.1989) (an excessive force claim under § 1983 could not be supported by negligent or grossly negligent conduct, as such conduct does not “rise to the level of conduct that would be actionable under § 1983”); accord Ansley v. Heinrich, 925 F.2d 1339, 1344 (11th Cir.1991) (holding that a district court did not err when it charged a jury in a Fourth Amendment excessive force ease that “negligence, standing alone, is not a constitutional violation”). However, this court is by no means convinced that, applying the appropriate standard to review of this jury instruction, the instruction improperly allowed the jury to find liability in a § 1983 action on the basis of negligence. First, taken in isolation, this court sees no difference in inferences of either negligence or intentional conduct between “fell” and “was dropped.” “Dropping” something or someone can just as easily be the product of mere negligence or inadvertence as can causing someone or something to “fall.” By contrast, “was thrown to the ground” would more likely suggest intentional conduct. However, the question of the propriety of a jury instruction is not the inference to be drawn from one word or phrase in isolation, but “whether the charges, taken as a whole and viewed in light of the evidence and the applicable law, fairly and adequately submitted the issues in the case to the jury.” Gray, 86 F.3d at 1485; Bening, 67 F.3d at 696. Here, the entire statement of this element of the claim is that “the defendants and the plaintiff were involved in an altercation wherein force was used thereby creating a situation where the plaintiff, while in the physical control of the defendants,” ended up on the ground. Instruction No. 9. This statement, taken as a whole, though perhaps not “faultless,” adequately conveyed to the jury that the plaintiff ended up on the ground as the result of use of force by the defendants, not defendants’ mere inadvertence or negligence, while the plaintiff was in defendants’ physical control. Gray, 86 F.3d at 1485; Bening, 67 F.3d at 696. It identifies the situation in which the falling or dropping occurred as one in which force was used by the defendants and states further that the use of force by the defendants “created the situation” in which Schultz fell or was dropped. Taken as a whole, and in light of the evidence that force was being used upon Schultz by the defendants, and in light of the applicable law, the instruction was adequate. Gray, 86 F.3d at 1485; Bening, 67 F.3d at 696. Traum’s motion for new trial on the basis of objections to this portion of Instruction No. 9 will therefore be denied. Next, Traum asserts that the trial court employed a “shifting sands” approach to the law of the case by first holding that evidence of the defendants’ subjective beliefs would not be admissible, and that the liability instruction would be essentially Eighth Circuit Model Civil Instruction 4.10, but then instructing the jury using a modified version of Model 4.20. The gist of this argument is that Model 4.10 focuses on what a reasonable officer would have done on the scene, while Model 4.20 focuses instead on the purpose behind the defendants’ actions, i.e., as Traum perceives it, upon the defendants’ subjective beliefs about the situation. Once defendants’ case was concluded without evidence of the defendants’ subjective beliefs, in compliance with the court’s ruling, however, the court agreed to use Model 4.20, which Traum contends precluded him from offering evidence of subjective beliefs even though the jury was ultimately instructed it could consider them. Traum does not argue that the instruction based on Model 4.20 was legally improper; indeed, he could not do so, because the defendants originally proffered that instruction. Therefore, the assertion here is not legal error in the instructions, but whether the trial court’s conduct in selecting the appropriate instruction was prejudicial to Traum’s opportunity to get a fair trial of the case. That assertion will be considered below. 4. Improper interjection of the judge into the proceedings The ground for a new trial upon which Traum appears to lay the most emphasis is the excessive intervention of the trial judge into the proceedings. Traum objects to conduct of the trial judge that he asserts prejudiced his case. That conduct involves both comments to counsel before, during, and after the trial that Traum asserts indicate the trial judge’s bias against the defendants and their counsel, and conduct, both in chambers and in front of the jury, that Traum contends conveyed the trial judge’s bias to the jury or otherwise prejudiced his case. a. Judicial deportment The Eighth Circuit Court of Appeals has repeatedly stated that “[a] trial judge has the duty to maintain an atmosphere free from prejudicial comment.” Bunting, 99 F.3d at 890 (citing Rush v. Smith, 56 F.3d 918, 921 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 409, 133 L.Ed.2d 328 (1995)). In Rush, the court opined that a prejudicial comment from the bench is worse than all others, “because it has the air of official sanction.” Rush, 56 F.3d at 921. For this reason, courts have long recognized that judges must be especially careful when making comments before a jury. “A trial judge must be especially cautious and circumspect in language and conduct during a jury trial. The judge must be fair to all parties and not do or say anything that might prejudice either litigant in the eyes of the jury.” Coast-to-Coast Stores v. Womack-Bowers, 818 F.2d 1398, 1401 (8th Cir.1987). This admonition reflects the vital role that the trial judge plays in a jury trial. More than a century ago, the Supreme Court explained the need for an exacting standard of judicial conduct: “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his [or her] lightest word or intimation is received with deference, and may prove controlling.” Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841 (1894). More recently, the Fifth Circuit reiterated this need for exemplary comportment: “By reason of his [or her] role, quickly observed by jurors, the judge is a figure of over-powering influence, whose every change in facial expression is noted, and whose every word is received attentively and acted upon with alacrity and without question.” Travelers Ins. Co. v. Ryan, 416 F.2d 362, 364 (5th Cir.1969). Rush, 56 F.3d at 921-22. A new trial is appropriate when a trial judge’s conduct in the case does not meet these “appropriately high standards.” Id. at 922. In Rush, the court also cautioned that, [W]hen faced with an allegation of judicial misconduct, “[a]n appellate court should be slow to reverse a case for the alleged misconduct of the trial court, unless it appears that the conduct complained of was intended or calculated to disparage [a party] in the eyes of the jury and to prevent the jury from exercising an impartial judgment upon the merits.” La Barge Water Well Supply Co. v. United States, 325 F.2d 798, 802 (8th Cir.1963) (Blackmum, J.), citing Goldstein v. United States, 63 F.2d 609, 613 (8th Cir.1933). Rush, 56 F.3d at 922. The court then distinguished between judicial intervention in the questioning of witnesses and comments that appeal to bias or prejudice. Id. The former kind of comments may possibly benefit the truth-seeking function of the courts without revealing the judge’s views on the case, even though excessive interjections are not favored. Id. The court could find no such possible salutary benefits from the former kind of comments, that is, comments by the court that appealed to bias or prejudice. Id. One such comment, the court found, could destroy the integrity of the proceedings. Id. The court therefore found a new trial was appropriate in light of a trial judge’s racially polarizing remarks. Id. at 923. Traum has not asserted that the court made openly biased or prejudicial comments before the jury that would fall into this latter classification. He has, however, asserted that a combative atmosphere between the bench and defense counsel was apparent and that the court made comments of the former kind, which improperly interjected the trial judge into the proceedings beyond any truth-seeking function. b. Combative atmosphere Several decisions of the Eighth Circuit Court of Appeals focus more particularly on judicial intervention in the proceedings, rather than upon improper comments. In United States v. Jackson, 29 F.3d 397 (8th Cir.1994), the court considered allegations, similar to those asserted by Traum, that the trial court created a combative atmosphere or atmosphere of hostility towards counsel for one party. The hostility arose primarily from conflicts over introduction of evidence and the handling of objections. Jackson, 29 F.3d at 401-02. The court found that the confrontations had been fewer and less severe than those in United States v. Turner, 975 F.2d 490, 493 (8th Cir.1992), cert. denied sub nom. Dowdy v. United States, 506 U.S. 1082, 113 S.Ct. 1053, 122 L.Ed.2d 360 (1993), in which the court had issued four contempt citations to counsel for confrontations with the judge. Jackson, 29 F.3d at 401. Additionally, the court found that in the case before it, [the judge] did not try the Government’s case or improperly interject himself into the trial proceedings. While the district court may have used sharp language in rejecting some of attorney Gibson’s objections, the court’s rulings in most of the questioned instances fell within the court’s discretion under the Federal Rules of Evidence. See United States v. Lueth, 807 F.2d 719, 729 (8th Cir.1986). Further, the court’s rulings on substance did not amount to plain error. We also note that a majority of the disputes between counsel and the court occurred outside of the jury’s hearing. Moreover, the judge specially instructed the jury during the course of the trial, after the tenor of the interactions apparently had escalated, that his comments and any disputes between counsel and the court did not reflect on the guilt or innocence of the parties and could not be so considered by the jury. See ante, at 400-401 n. 4. We cannot say on this record that Donaldson was deprived of a fair trial. United States v. Scott, 26 F.3d 1458, 1465 (8th Cir.1994), [cert. denied sub nom. Richard v. United States, 513 U.S. 1019, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994) ]. Accordingly, Donaldson’s claim [of grounds for reversal of conviction] must fail. Jackson, 29 F.3d at 401-02. The claim of a pervasively hostile or combative environment in this case is based, in part, on comments of the trial judge made in chambers to defense counsel the Monday following the return of the verdict in this case when counsel was meeting with the judge prior to jury selection in another case. Those comments were tape-recorded by the trial judge as a matter of routine and defense counsel subsequently obtained a copy of the tape and provided in his motion for new trial the transcription that appears in the margin. Traum contends that the attitude expressed by the trial judge in this “unsolicited lecture,” including what Traum contends is a suggestion that the defendants were liars who conspired to make their story match what appeared on the videotape of the incident, and the trial judge’s suggestion that there was no room for disagreement about what happened, tainted the case from the start. Defendant’s Supplemental Brief In Support Of Motion For New Trial, pp. 4-5 & n. 4. However, this court finds no ground for a new trial based on the fact that the judge, after the verdict was in, had strong feelings about the proper result in the ease. The trial judge’s speculation about what would or wouldn’t have been the testimony of the officers had the videotape of the incident not been in evidence is just that, speculation. A more telling issue is whether the views expressed by the trial judge after the trial were in fact held prior to or during trial, and, more to the point still, whether those views were conveyed to the jury or otherwise infected the trial of the case. Those concerns are addressed in this court’s reexamination of evidentiary rulings and, just below, in consideration of particular incidents that Traum alleges exemplify the hostile or combative atmosphere that prevailed. During the trial, when defense counsel was cross-examining plaintiffs expert witness, the court, without an objection from plaintiffs counsel, interrupted defense counsel for a sidebar. Trial Transcript, Vol. I, p. 136. In the sidebar, the court lectured defense counsel on the proper way to use a deposition in cross-examination. Trial Transcript, Vol. I, pp. 136-37. Then, in open court, the following transpired: Q (BY DEFENSE COUNSEL): Did you tell me when I took your deposition— THE COURT: He doesn’t remember that, and that’s not the way to do it. Ask him the question, and then find out — if he gives you the same answer, fine. If he doesn’t, then you read from his deposition. Nobody is expected to memorize their deposition. Trial Transcript, Vol. I, p. 137. The sidebar conference, although it was unsolicited by an objection from plaintiffs counsel, and although it may indicate the trial judge’s irritation with defense counsel for not following the mechanics just discussed for use of a deposition, was outside the hearing of the jury. Jackson, 29 F.3d at 401-02. The comment made in front of the jury, although it may have expressed the trial court’s irritation or impatience with counsel, did not reflect on the question of whether the defendants had violated the plaintiffs civil rights and could not be so considered by the jury. Id. The trial judge may take an active role in conducting the trial, Czajka v. Black, 901 F.2d 1484, 1486 (8th Cir.1990), which certainly extends to such matters as instructing counsel on the proper method for using a deposition in his court. Also, neither this nor any other episode escalated to the point where the court imposed contempt sanctions. Turner, 975 F.2d at 493. Traum asserts that the hostile atmosphere extended to witnesses for the defendants. He contends that when plaintiffs counsel and defendants’ expert exchanged cross words during cross-examination, the court cautioned the defense witness, not plaintiffs counsel. Trial Transcript, Vol. III, p. 599, lines 1-23. This court, however, is convinced that the witness’s conduct was out of line and the reproof from the trial judge was certainly justified. The trial court has the authority to take an active role in the conduct of the trial. Czajka, 901 F.2d at 1486. Nor could the court’s reproof of the witness in any way be taken as a comment on the witness’s veracity or the weight to be given his testimony. Cf. Jackson, 29 F.3d at 401-02 (a comment that did not reflect on the question of guilt or innocence and that could not be so considered by the jury did not establish a right to a reversal of a conviction). Counsel for defendants did not object to the plaintiffs counsel’s questioning as badgering or otherwise inappropriate, and this judge’s review of the record indicates that plaintiffs counsel had done nothing improper in questioning defendants’ expert to warrant a lecture from the bench. Therefore, the trial judge’s failure to chastise plaintiffs counsel did not suggest a lack of even-handedness, because plaintiffs counsel had done nothing wrong, while the witness’s comments were clearly inappropriate and the witness got the lecture he deserved. Other episodes suggesting a combative atmosphere are discussed in more detail in reference to judicial intervention or in reference to evidentiary rulings, because, as in Jackson, that is the context in which the combative atmosphere allegedly arose. Jackson, 29 F.3d at 402-03 (hostility arose primarily from conflicts over introduction of evidence and the handling of objections). However, again as in Jackson, the court specifically instructed the jury that the jury should not take any ruling, action, or remark of the trial judge as suggesting that he had an opinion or suggestion about what the jury’s verdict should be, although the instruction in Jackson was given as a special instruction after the “tenor of the interactions apparently had escalated.” Jackson, 29 F.3d at 401-02; and compare Instruction No. 2 (instructing the jury, as part of the final instructions, “[njeither in these instructions nor in any ruling, action or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be”). For these reasons, Traum’s motion for new trial must be denied to the extent it is premised on a combative atmosphere between the defendants, their witnesses, or their counsel and the bench. c. Judicial intervention The keystone of Traum’s argument for a new trial based on judicial misconduct is not, however, the antagonistic atmosphere he asserts existed between the bench and defense counsel, but the trial court’s actual intervention in the proceedings. In Jackson, the court contrasted a hostile atmosphere created by disagreements over evidentiary and other matters with a ease in which the trial court actually interjected itself into the proceedings, United States v. Singer, 710 F.2d 431 (8th Cir.1983 (en banc)). Jackson, 29 F.3d at 401. In Singer, “the district court had so far injected itself into the trial as to have deprived the defendants of a fair trial by giving the jury the impression that the court favored the prosecution.” Jackson, 29 F.3d at 401. In Singer, the en banc court, in a six-to-three decision, took umbrage at the following sorts of judicial interventions: [The inappropriate judicial interventions were designed] to clarify government testimony, to help government counsel, to indicate to government counsel when he should or should not make objections, to instruct government counsel on how to make his evidence more intelligible, to suggest to him when he should stop the examination of a witness, to indicate to him what he should write on a blackboard in order to illustrate a point to the jury, and the like. In addition, on numerous occasions the court took over the questioning of government witnesses in order to make sure that the somewhat complicated facts of this ease were clearly explained. Singer, 710 F.2d at 436. Similarly, in United States v. Van Dyke, 14 F.3d 415 (8th Cir.1994), the court found judicial interventions and lack of neutrality amounting to plain error that deprived the defendant of a fair trial. Van Dyke, 14 F.3d at 423. The appellate court found that the trial court’s comments throughout the trial had been sufficiently one-sided and distrac-tive to the defendant’s case to deprive him of a fair trial. Id. at 418. Those comments included comments indicating that the judge was not paying attention to the defendant’s comments, which may have suggested that the defendant was not worth listening to; the court’s over-involvement in questioning on behalf of the prosecutor; and interruptions of defense counsel’s questioning with invitations to the prosecutor to make objections. Id. at 418-19. The appellate court found “that the trial judge not only got into matters that should have been left to the prosecutor on cross-examination; he also essentially ‘took over’ on behalf of the prosecutor — very possibly giving the jury the impression that he and the prosecutor were working toward a common goal.” Id. at 419. The appellate court found that the trial judge had “‘as-sum[ed] the mantle’ of an advocate — or at least very probably gave the jury the impression that he had done so.” Id. at 420. The court found that the judge’s involvement could very well have passed along the perception to the jury that the judge favored or felt compelled to assist the prosecutor and that the defendant had no defense to the charges. Id. The court also intervened by making erroneous or questionable evidentia-ry rulings and by eliciting testimony on matters not anticipated or invited by either counsel, coupled with apparent disdain for or disbelief of the defense witnesses and counsel. Id. at 421-22. The appellate court’s conclusion was as follows: To summarize regarding the district court’s intervention during the trial, we recognize the propriety, and what oftentimes becomes necessity, of a trial judge’s intervention in order to assist itself and the jury in their understanding of the case on trial. See generally [United States v.] Jerde, 841 F.2d [818,] 823 [(8th Cir.1988)]; Fed.R.Evid. 614(b). Such intervention may especially be necessary where, as here, a defendant is charged with multiple counts involving complex legal and factual issues. However, we find that, viewed as a whole, the record reflects excessive interplay between the district court and witnesses, consistently giving rise to a perception that the judge favored the prosecution’s ease. In other words, based on the record we cannot help but conclude that the conduct of the trial judge probably so impressed the jury with his partiality to the prosecution that this became a factor in determining defendant’s guilt. Van Dyke, 14 F.3d at 422-23. The court therefore reversed the criminal conviction of the defendant and remanded for a new trial. Id. at 424. The court noted further that no one incident involved an error so prejudicial as to warrant reversal, but that the record as a whole established that the defendant’s right to a fair trial had been violated. Id. Although the court reached the opposite conclusion, affirming denial of a motion for new trial on the grounds of excessive judicial intervention, the appellate court in Czajka v. Black, 901 F.2d 1484 (8th Cir.1990), applied similar principles, stating those principles succinctly as follows: “In order to reverse on grounds of excessive judicial intervention, the record must either ‘disclose actual bias on the part of the trial judge [or] leave the reviewing court with an abiding impression that the judge’s remarks and questioning of witnesses projected to the jury an appearance of advocacy and partiality.’ ” Warner v. Transamerica Ins. Co., 739 F.2d 1347, 1351 (8th Cir.1984) (quoting United States v. Singer, 687 F.2d 1135, 1141 n. 10 (8th Cir.1982), rev’d on rehearing, 710 F.2d 431 (8th Cir.1983) (en banc); accord Harris v. Steelweld Equip. Co., 869 F.2d 396, 401 (8th Cir.1989), [cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989)]. Furthermore, we recognize that although “[a] trial judge should never assume the role of advocate, and must preserve an attitude of impartiality in the conduct of a trial,” Warner, 739 F.2d at 1351 (citations omitted), “a trial judge may question witnesses or comment on the evidence,” id. “A federal judge is more than a ‘mere moderator’ or umpire in the proceedings and he may take an active role in conducting the trial and developing the evidence.” Id. Czajka, 901 F.2d at 1486. This court has given considerably more scrutiny to comments made by the trial judge prior to and during the trial than to comments made after the trial. One incident Traum points to as demonstrating improper injection of the trial court into the proceedings occurred prior to trial, in chambers. Trial Transcript, Vol. I, pp. 136-37. In that incident, defense counsel was arguing that evidence of the propriety of the defendants’ reactions should be judged against the full background of what the defendants knew when they were on the scene, and the jury needed to decide who did what. The trial judge’s response was as follows: THE COURT: Well, I think that’s true, ordinarily, but here we’ve got a videotape that I’ve seen, and it’s pretty graphic. It’s hard to show even two sides of that situation. I assume you said that you were going to somehow say that he raised his hand or he backed off a little bit or something and they thought they had to do this, but the videotape doesn’t really support that very well. If we didn’t have a videotape, I think I’d certainly have to buy your argument. I’m not sure where I’m at and that’s why I’m asking you, when I have seen the tape. MR. PHILLIPS: I don’t understand the question. THE COURT: Well, if he — if the tape showed him as trying to kick one of the officers or if the tape showed him doing anything physical at all, then it’s a Jury question. But I have watched the tape and I’m trying to figure out — I’d have been better off in ruling here if I hadn’t seen the tape, I guess, but I don’t think the tape gives you much to argue about. Now, you may win the case, I’m not on the Jury. I don’t want the Defendants to get all nervous about it, but you can’t say anything • about the tape that shows any aggressiveness on his part or any attempt to commit an assault or battery or anything, can you? MR. PHILLIPS: I can and I intend to. THE COURT: Well, you’ve seen something in the tape I haven’t seen, I guess. Anything further by anybody? Trial Transcript, Vol. I, pp. 136-37. These comments are in no way comparable to the conduct of the trial judge in Singer, or the trial judge in Van Dyke, because they did not involve the trial judge assuming the mantle of advocacy in front of the jury to present the plaintiffs case. Van Dyke, 14 F.3d at 419-20; Singer, 710 F.2d at 436. These comments do indicate that the trial judge had reviewed some of the evidence and felt that it weighed in favor of the plaintiffs case and, perhaps, obviated the need for other evidence of what the defendants perceived about the incident. The trial judge’s comments do not appear to this judge to be combative, although they do express the court’s doubt about what inferences could be drawn from the evidence that would be favorable to the defendants. However, the comments also indicate that the court recognized that what happened was a jury question. Furthermore, as in Jackson, Van Dyke, and Singer, the comments were made in chambers, not in the presence of the jury. Jackson, 29 F.3d at 401-02; Van Dyke, 14 F.3d at 419-20; Singer, 710 F.2d at 436. Also as in Jackson, the court specifically instructed the jury that the jury should not take any ruling, action, or remark of the trial judge as suggesting that he had an opinion or as a suggestion about what the jury’s verdict should be. See Instruction No. 2 (given as part of final instructions); and compare Jackson, 29 F.3d at 401-02 (given as a specific cautionary instruction when combative exchanges between counsel and the court had occurred in front of the jury). This incident therefore does not suggest improper intervention of the trial judge in the proceedings or suggest the existence of any pervasive bias on the part of the trial judge that infected the trial. Another incident during trial is specifically highlighted by defense counsel as demonstrating prejudicial conduct by the trial judge. That incident occurred when defense counsel asked the plaintiff if it was true that he was threatening to sue the officers within a matter of seconds after he hit the floor. Trial Transcript, Vol. Ill, pp. 478-92. Although there was no objection to the question from plaintiffs counsel, the trial judge stopped the proceedings, excused the jury, and during the recess met with counsel in chambers to review the videotape, because the trial judge recalled hearing no such comments on the tape. During that conference, Traum’s counsel contends that he was “chastised” for inconsistencies between the transcript provided by Schultz’s counsel and the matter Traum’s counsel was now asserting. Counsel and the trial judge then had an exchange about whether the “transcript” prepared by plaintiffs counsel was in fact a “transcript” at all and the extent to which defense counsel had been involved in its preparation. Eventually, counsel for defendant found on the videotape the point at which Schultz made a reference to suing the defendants, which was beyond the scope of the “transcript” and some minutes after Schultz had hit the floor. Upon a return to open court, the trial judge gave the following instruction, which defense counsel asserts was unnecessary and unfairly prejudicial to the defendants: THE COURT: Please be seated. Members of the jury, I was listening to the matters as we went along here, and I came upon a situation that I was not fully cognizant of, and so I stopped and I wanted to go back and I wanted to listen to this tape, and especially the audio part of it. I’m going to ask the court reporter to read a question that was asked by Mr. Phillips. I’m going to keep still, because when I talk, she can’t read. So kindly go ahead, Miss Reporter. [Question read back from p. 478, line 15 reads: Q: Would you agree with me that you were threatening to sue the officers within 30 seconds of the time .you hit the floor?] THE COURT: All right. I’m not a witness, but I had to watch and listen to this tape five or six or seven or eight times, and I hadn’t heard that. So I sent you downstairs, and we listened carefully to this tape. At 2:34:20 on the tape, these words, and they’re hard to hear — I don’t know whether you heard them when it’s been played to you before or not — but the words are these: “If you don’t send me to the hospital, I’m going to sue you.” And this was six and a half minutes after he hit the floor, and that’s at 2:27:51 when he hit the floor. So what I’m saying to you, that the tape says: “If you don’t send me to the hospital, I’m going to sue you.” I felt that you should have that accurately brought before you. I’m going to ask you to — direct you to disregard any other question about any other time, and I want you to be aware of the fact that the words “He’s going to threaten to sue you” were really, “If you don’t send me to the hospital, I’m going to sue you.” All right. Now, let’s go back. Mr. Phillips was on cross-examination and you may proceed. Trial Transcript, Vol. Ill, pp. 491-92. On the whole, perhaps, with the luxury of hindsight and time for reflection available to this judge, but not available to the trial judge in the heat of trial, it would have been better if the evidence on the tape had simply been brought out by playing the tape or through cross-examination and re-direct examination, rather than through statements of the court. Nonetheless, this judge does not perceive the comments to have exceeded the truth-seeking function of the trial judge to clarify the record or to have been unfairly prejudicial. Rush, 56 F.3d at 922; Czajka v. Black, 901 F.2d 1484, 1486 (8th Cir.1990) (a trial judge may comment on the evidence and is more than a “mere moderator,” so that the judge may take an active role in conducting the trial and developing the evidence). Certainly, time was saved by the court clarifying the timing of the statement and its precise content on a portion of the tape that was difficult to hear and understand. The court attempted to clarify for the jury words that were hard to hear on the tape, but about which the parties actually had no dispute. Although defense counsel may have perceived the trial judge’s intervention to be combative, when the issue arose, the trial judge promptly and properly excused the jury, so that counsel and the judge could address what the trial judge thought was a surprising evidentiary development outside of the jury’s hearing. Jackson, 29 F.3d at 401-02. When the trial judge returned to open court, the court did not harp upon the difference in timing suggested by counsel’s question (thirty seconds) and the actual appearance of the comments in the tape (six and a half minutes), nor, apart from stating the language used on the tape, did he harp upon the difference between threatening to sue and threatening to sue if the plaintiff didn’t receive medical attention; the trial judge simply clarified what statement was made and when. This judge cannot find that this episode demonstrates a prejudicially combative atmosphere or prejudicial intervention in the presentation of evidence, because the trial judge did not trespass into the realm of advocacy. Van Dyke, 14 F.3d at 419-20; Czajka, 901 F.2d at 1486. Furthermore, nothing improper was ever conveyed to the jury nor would the jury have reasonably perceived any partiality on the part of the trial judge. The gist of Traum’s next argument, that the trial judge used a “shifting sands” approach to the law of the case, seems to be that the trial judge’s shifting rulings on which liability instruction he would give prejudiced Traum by precluding some evidence that would have been relevant to issues on which the jury was ultimately instructed. Traum points out that the trial judge initially ruled that the defendants’ subjective beliefs were inadmissible, but then, when defendants’ case was already concluded in conformity with that ruling, adopted an instruction to the jury that allowed the jury to consider the purpose for which the defendants used force. Traum contends that this change substantially altered the issues in the trial and is sufficient cause for granting Traum a new trial. Traum is in effect claiming that he is entitled to a new trial, because he ultimately got the jury instruction he was asking for all through the trial. Even assuming there was a difference between the two instructions, the court cannot find from the record that the trial judge’s change in which instruction would be given amounted to advocacy or violation of his duty to present an appearance of impartiality. Jackson, 29 F.3d at 401-02; Van Dyke, 14 F.3d at 419-20; Czajka, 901 F.2d at 1486. Nor was the instruction ultimately offered plainly legally erroneous, such that any material prejudice arose. Gray, 86 F.3d at 1485; Fink, 983 F.2d at 114. Nor can the court find substantial prejudice from any “changing of horses in midstream.” That change was plainly not intended to manipulate the proceedings to preclude the defendants from offering exculpatory evidence, which would surely amount to an excessive judicial intervention, but was instead an attempt to conform the instruction to the evidence and the defendants’ own requests for instructions. It is plain from the evidence presented that the question of whether the defendants had reasonable concerns for then-safety prompting their actions had been presented to the jury. This court can find neither excessive judicial intervention in this episode nor any sufficient prejudice from it justifying a new trial. 5. Improper evidentiary rulings Traum objects to a variety of evidentiary rulings by the trial judge as substantially prejudicing his ease and therefore justifying a new trial. In Norton v. Caremark, Inc., 20 F.3d 330, 338 (8th Cir.1994), the Eighth Circuit Court of Appeals noted that Fed. R.Civ.P. 61 specifically prohibits the grant of a new trial based on errors in admission of evidence, “unless refusal to take such action appears to the court inconsistent with substantial justice.” Evidentiary rulings are reviewed under an- abuse of discretion standard. Bunting, 99 F.3d at 891. The court may properly exclude evidence that is irrelevant or cumulative. Id. Furthermore, where the questioned rulings fall within the court’s discretion under the Federal Rules of Evidence and the substance of those rulings does not amount to plain error, there is no ground for a new trial based on evidentiary rulings. Jackson, 29 F.3d at 401. To put it another way, A trial court must determine whether an evidentiary ruling was so prejudicial as to require a new trial which would be likely to produce a different result. Williams v. Mensey, 785 F.2d 631 (8th Cir.1986); Warner [v. Transamerica Ins. Co.], 739 F.2d [1347,] 1354 [ (8th Cir.1984) ]. We may only find a trial court’s determination of the admissibility of evidence was prejudicial where there has been a clear abuse of discretion. Warner, 739 F.2d at 1350. O'Dell v. Hercules, Inc., 904 F.2d 1194, 1200 (8th Cir.1990). This court will consider Traum’s specific objections' to evidentiary rulings seriatim. a. Testimony of plaintiff’s expert In one of his objections to evidentiary rulings, Traum contends that the trial judge improperly allowed plaintiff’s expert, Frank Saunders, to opine that he did not perceive any act of aggression by Schultz when he watched the videotape when the trial judge had excluded testimony by the defendants concerning their subjective beliefs about the incident. Traum appears to assert both a “fairness” argument and his contention that the testimony permitted was not proper expert testimony. This court is troubled by this objection, because of the trial judge’s ruling that reciprocal evidence of subjective perceptions of the incident in favor of the defendants was inadmissible. However, this court has reviewed Fed.R.Evid. 702 and 704, and cannot say that the trial judge’s admission of this expert testimony was a clear abuse of diseretion or inconsistent with substantial justice. Jackson, 29 F.3d at 401; Norton, 20 F.3d at 338; Fed.R.Civ.P. 61. Furthermore, if admission of this expert testimony was error, it was certainly harmless error. First, the jury was instructed that it was for them to decide what weight to give expert testimony. Instruction No. 6. Second, the. expert’s observation is harmless in light of the best evidence of what happened during the incident, the videotape, which had already been presented to the jury. This evidentiary objection therefore does not provide the basis for a new trial in this case. Traum’s nutshell argument that other evi-dentiary rulings prejudiced his case, as stated at oral arguments, is that the rulings made the plaintiff look like a “choirboy.” The objections to these evidentiary rulings are considered in turn below. b.Post-incident language and behavior Traum objects to the trial judge’s ruling that “cursing” by Schultz should be edited out of the videotape. Traum claims that this evidence of cursing somehow rebuts Schultz’s argument that he was in tremendous pain immediately after the incident, and the ruling prevented defendants from arguing effectively about a lack of evidence of pain. He contends further that the jury’s sizeable award for past pain and suffering demonstrates the effect this ruling had on his substantial rights. This court is unconvinced. The evidence of “cursing” fits within a fair reading of Fed.R.Evid. 403, which permits excluding evidence that is relevant on the grounds of the danger of unfair prejudice. The jury did not need to be subjected to hearing the specific content of the “cursing” to be aware that it occurred, even on the edited version of the videotape. Furthermore, anyone who has banged his thumb knows that “cursing” is often an expression of pain, rather than an indication that the speaker is suffering no pain. Thus, the court is not persuaded that some necessary inference in defendants’ favor concerning the plaintiffs post-incident pain could be drawn from evidence of the actual words used. Exclusion of “cursing” fell within the trial judge’s discretion under the Federal Rules of Evidence and the substance of the ruling does not amount to plain error. Bunting, 99 F.3d at 891; Jackson, 29 F.3d at 401. Furthermore, this court certainly cannot find that the ruling on “cursing” is “inconsistent •with substantial justice.” Norton, 20 F.3d at 338; Fed.R.Civ.P. 61. No new trial will be granted on this ground. c.Valium Traum objects to the exclusion of evidence that Schultz was taking Valium in addition to drinking substantial amounts of beer on the night of the incident. Traum contends that this combination of drugs and alcohol induced Schultz’s irrational behavior, which he contends gave rise to the incident in which force was used. His argument is that the evidence of use of Valium would have mitigated any suggestion that the defendants over-reacted to a situation in which they did not need to intervene. This argument is also unpersuasive. There is no evidence in the record that the officers knew what might be affecting Schultz’s behavior, beyond the fact that some of them knew he was intoxicated; but even so, it is not the cause of Schultz’s behavior that is properly a question in this ease, but what that behavior was, and whether the defendants’ reaction to Schultz’s behavior was a reasonable use of force. Again, this ruling to exclude the evidence of Valium use was well within the trial judge’s discretion under Fed.R.Evid. 403, and the substance of the ruling does not amount to plain error. Bunting, 99 F.3d at 891; Jackson, 29 F.3d at 401. Nor is the ruling “inconsistent with substantial justice.” Norton, 20 F.3d at 338; Fed.R.Civ.P. 61. No new trial will be granted on this ground, either. d.Pre-incident arrests and incarceration Traum also objects to exclusion of evidence that Schultz had been jailed on six prior occasions and that one of those occasions was just weeks before the incident in question in this lawsuit occurred. Traum suggests that this evidence would have indicated that Traum was familiar with jail procedures and that his failure to follow them created the situation giving rise to his injury. Exclusion of evidence of prior arrests is permissible to prevent unfair prejudice, Fed. R.Evid. 403, and, in this case, the evidence would also have been unnecessarily cumulative, id., because evidence came in, through Schultz himself, that he was familiar with jail procedures. Once again, exclusion of this evidence fell within the trial judge’s discretion under the Federal Rules of Evidence and the substance of the ruling does not amount to plain error. Bunting, 99 F.3d at 891; Jack