768 F.2d 1287 (11th Cir. 1985), 84-7510, Woods v. Burlington Northern R. Co.

Docket Nº:84-7510.
Citation:768 F.2d 1287
Party Name:Alan WOODS and Cara Woods, Plaintiffs-Appellees, v. BURLINGTON NORTHERN RAILROAD COMPANY, et al., Defendants-Appellants.
Case Date:August 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1287

768 F.2d 1287 (11th Cir. 1985)

Alan WOODS and Cara Woods, Plaintiffs-Appellees,

v.

BURLINGTON NORTHERN RAILROAD COMPANY, et al., Defendants-Appellants.

No. 84-7510.

United States Court of Appeals, Eleventh Circuit

August 16, 1985

Page 1288

L. Vastine Stabler, Cabaniss, Johnston, Gardner, Dumas & O'Neil, Kenneth D. Davis, Birmingham, Ala., for defendants-appellants.

Mac Parsons, Hare, Wynn, Newell & Newton, William J. Wynn, Carlton T. Wynn, Francis H. Hare, Jr., Alva C. Caine, Birmingham, Ala., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before VANCE and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

Plaintiffs were injured when the motorcycle on which they were riding overturned. The accident occurred in Pensacola, Florida on Main Street near its intersection with Comandencia. Defendant Burlington's track runs up the center of Main Street at that location. Plaintiffs alleged that the accident was caused by a dangerous defect in the surface of Main Street and that the defect was created and controlled by Burlington. Trial by jury resulted in substantial verdicts and judgments in

Page 1289

plaintiffs' favor. Burlington appeals and makes four contentions of error.

(1)

Burlington first argues that the trial court did not enforce its pretrial order in an even handed manner. In pertinent part, the order provides:

10. Exhibits. The parties shall by October 14, 1983, exchange lists describing all writings, recordings, documents, bills, reports, records, photographs and other exhibits (collectively called "exhibits") which they may utilize at trial. Unless specifically agreed between the parties or allowed by the court for good cause shown, the parties shall be precluded from offering as substantive evidence any exhibit not so identified. Except where beyond a party's control or otherwise impracticable (e.g., records from an independent third-party being obtained through subpoena), each party shall make such exhibits available for inspection and copying. Except to the extent written notice to the contrary is filed with the Clerk of the Court within five days after receiving such list, each party shall be deemed to have agreed (for purposes of this litigation only):

....

(g) that each of the listed documents is admissible at trial.

No lists were exchanged. Instead, the parties exchanged the actual exhibits that they proposed to use. No written notices or objections to opposing parties' exhibits were filed with the clerk of the court by either side.

Before the jury was struck the following colloquy took place:

THE COURT: Are there any other preliminary matters? I take it you've exchanged a list of witnesses. Have you exchanged a list of documents?

MR. STABLER [Burlington's attorney]: I guess we have, haven't we?

THE COURT: Well, since I have heard nothing by way of objection to documents, any document that's offered will be received in evidence.

MR. CARLTON WYNN [Plaintiffs' attorney]: We've given you a master sheet on all of the exhibits that we would be talking about and still that--and plus, I think I've shown you every picture that I had and I think--

MR. STABLER: We have exchanged information very freely, I believe.

THE COURT: All right.

Notwithstanding the apparent agreement of the parties and the absence of any pretrial objections by any party the following developed during plaintiffs' examination of their first witness:

MR. WYNN: I offer that as plaintiffs' exhibit number five.

MR. STABLER: Your Honor, I'm going to object to this.

THE COURT: Let me ask you this, Mr. Stabler, was this one of the exhibits listed?

MR. STABLER: We've seen it and objected to it before.

THE COURT: Have you objected to it?

MR. STABLER: Objected to it in the deposition, Your Honor.

THE COURT: Well, the pretrial order required you before the receipt of the list of the exhibits to file an objection with the Court, and it further provided that if no objections were filed with the Court, the exhibit when offered at trial would be received in evidence.

MR. STABLER: Your Honor, I don't want to make a point of it. I didn't receive a list of the exhibits in that form, but I was made aware they were going to offer them and I have been made aware--

MR. WYNN: He has said, and I represent to the Court he has seen every picture I have in my file.

MR. STABLER: I'm not making a point of that, but I was not given a formal list for the proceedings we're talking about here. I'm not making a point of it, Carlton, but I'm explaining why I didn't give a formal response.

MR. WYNN: They gave the pictures themselves, I don't see how they could be

Page 1290

any more accurate than that, if they are talking about numbers a picture might have--

THE COURT: Well, does either side or did either side comply with the pretrial order in providing a list of documents?

MR. WYNN: We did, and he showed me his and I showed him mine.

MR. STABLER: I don't believe you gave me a list.

MR. WYNN: When I showed you the pictures.

MR. STABLER: I agree with you. That's what I am telling the Court. I agree with you.

MR. WYNN: I don't know how else I could give you a better list than the pictures themselves. I didn't say it with regard to these pictures--they are numbered one through fifty--number one--this is number twenty-five, gave everything in my file, gave it to you and said this is what we expect you to use in this case.

THE COURT: All right. The objection is overruled.

Q. All right, sir.

MR. STABLER: Your Honor, you realize he is talking about pictures of another area than in this case, an area he says is comparable to the area in this case?

THE COURT: All I realize is I signed a pretrial order that required that objections to exhibits be filed with the Court prior to trial, so I could pass on them prior to trial and no objections have been filed with the Court and, as I said to ya'll on the record this morning the exhibits which have been identified when offered will be received in evidence because there has been no objection.

The thrust of Burlington's contention is that by enforcing a portion of its pretrial order (the requirement that written objections be filed in advance of trial) and waiving another (the exchanging of lists of exhibits), the district court unfairly allowed into evidence inadmissible exhibits 1 that were highly prejudicial.

As we will briefly note in part 2 infra, we conclude that the exhibits were admissible. Even if we concluded to the contrary, however, we would not accept that the trial court's handling of the matter was unfair...

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28 practice notes
  • Resolving Separation Of Powers And Federalism Problems Raised By ERIE, The Rules Of Decision Act, And The Rules Enabling
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    • Capital University Law Review Nbr. 32-3, April 2004
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    ...(discussing cases) and Walker v. Armco Steel Corp., 446 U.S. 740, 747-48 (1980). [765] Id. at 2; Woods v. Burlington Northern R.R. Co., 768 F.2d 1287, 1288 (11th Cir. 1985), rev'd, 480 U.S. 1 (1987). Neither the Supreme Court nor the court of appeals provided any explanation why a lawsuit a......
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    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
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    ...argument of counsel in a civil case.'" Oxford Furniture, 984 F.2d at 1128 (quoting Woods v. Burlington N. R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985)); accord Higgs, 969 F.3d at 1307. As noted above, plain error requires a showing that (1) an error occu......
  • Tips For Opening Statements And Closing Arguments
    • United States
    • JD Supra United States
    • 14 Agosto 2013
    ...‘sandbagging’ the court by remaining silent and then, if the result is unsatisfactory, claiming error.” Woods v. Burlington N. R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985), rev’d on other grounds, 480 U.S. 1 (1987). Second, a lawyer may strategically choose not to object to an improper co......
  • United States v. Baltazar-Sebastian, 121919 MSSDC, 3:19-CR-173-CWR-FKB
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Mississippi
    • 19 Diciembre 2019
    ...followed in order that the business of the court may be handled expeditiously and fairly.” Woods v. Burlington N.R. Co., 768 F.2d 1287, 1290 (11th Cir. 1985), rev'd on other grounds, 480 U.S. 1 (1987). When a party believes an order is incorrect, its remedy is to ap......
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26 cases
  • Ruiz v. Wing, 020421 FED11, 18-10912
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
    • 4 Febrero 2021
    ...argument of counsel in a civil case.'" Oxford Furniture, 984 F.2d at 1128 (quoting Woods v. Burlington N. R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985)); accord Higgs, 969 F.3d at 1307. As noted above, plain error requires a showing that (1) an error occu......
  • United States v. Baltazar-Sebastian, 121919 MSSDC, 3:19-CR-173-CWR-FKB
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Mississippi
    • 19 Diciembre 2019
    ...followed in order that the business of the court may be handled expeditiously and fairly.” Woods v. Burlington N.R. Co., 768 F.2d 1287, 1290 (11th Cir. 1985), rev'd on other grounds, 480 U.S. 1 (1987). When a party believes an order is incorrect, its remedy is to ap......
  • David Hill Development, LLC v. City of Forest Grove, 022912 ORDC, 03:08-cv-266-AC
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    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • 29 Febrero 2012
    ...verdict has been returned, raise an issue that they could have raised earlier." (Pl.'s Resp. 5-6 (citing Woods v. Burlington N.R.R., 768 F.2d 1287, 1292 (11th Cir. 1985), and Moore's Federal Practice, Section 59.13[2][e] [iii] [B] (2011) (the "failure to make a timely objection to......
  • 480 U.S. 1 (1987), 85-1088, Burlington Northern Railroad Co. v. Woods
    • United States
    • Federal Cases United States Supreme Court
    • 24 Febrero 1987
    ...Cara Woods. Petitioner posted bond to stay the judgment pending appeal, and the Court of Appeals affirmed without modification. 768 F.2d 1287 (CA11 Page 3 Respondents then moved in the Court of Appeals, pursuant to Ala. Code §12-22-72 (1986), for imposition of that State's mandatory affirma......
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1 firm's commentaries
  • Tips For Opening Statements And Closing Arguments
    • United States
    • JD Supra United States
    • 14 Agosto 2013
    ...‘sandbagging’ the court by remaining silent and then, if the result is unsatisfactory, claiming error.” Woods v. Burlington N. R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985), rev’d on other grounds, 480 U.S. 1 (1987). Second, a lawyer may strategically choose not to object to an improper co......
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