Johns

concurring.

I concur in the majority’s disposition. I write separately because while the district court’s decision to preclude Johnson’s testimony is within the range of a district court’s discretion, in my judgment, it is barely so.

The entirety of the circumstances before the district court makes Johnson’s preclusion appear, at a minimum, quite unfair. Johnson was available on the original date he was to testify. His testimony could have resolved the factual dispute as to whether he or Johns was the active engineer. He could have disputed Fahrenkopfs testimony about the inspection performed at the end of the previous season. He could have explained the details about loosening the hose clamp when he and Fahrenkopf winterized the fresh water pump. Indeed, his was the only testimony that could corroborate that of Johns.

Johns’s failure to call Johnson earlier in the trial was a matter of professional courtesy. Johnson was present and available to testify, but instead of calling Johnson, plaintiffs counsel allowed the defense to call a witness out of order so that defense counsel would not be required to compensate the witness to return to court after Johnson testified. Defense…

MEMORANDUM *

Ronald Johns appeals the district court’s refusal to give his proffered jury instructions, the district court’s exclusion of Captain Johns’ testimony, and the district court’s denial of his motions for a judgment notwithstanding the verdict and for a new trial. The district court had jurisdiction pursuant to 28 U.S.C. § 1331 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . As explained below, we affirm the bulk of the district court’s decisions, but must remand to allow the district court to consider Johns’ contention that a new trial is warranted because the weight of the evidence was insufficient to support the verdict.

Johns’ challenge to the jury instructions was properly preserved for appellate review because Johns’ proposed jury instructions, combined with his objection to the district court’s decision not to give those instructions, was “sufficiently specific to bring into focus the precise nature of the alleged error[s].” Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713, 716 (9th Cir.2001) (internal quotation marks omitted) (noting that as long as a party “introduces an instruction and presents arguments to the district court concerning the…