Burchfield v. Csx Transp. Inc.

• Decision Date: 30 March 2011
• Docket Number: No. 09–15417.,09–15417.
• Citation: 636 F.3d 1330
• Parties: Doug BURCHFIELD, Plaintiff–Appellant,v.CSX TRANSPORTATION, INC., Defendant–Appellee,The Andersons, Inc., Defendant–Third Party–Plaintiff,Star of the West Milling Company, Third Party Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

636 F.3d 1330

84 Fed. R. Evid. Serv. 1453

22 Fla. L. Weekly Fed. C 1936

Doug BURCHFIELD, Plaintiff–Appellant,

v.CSX TRANSPORTATION, INC., Defendant–Appellee,The Andersons, Inc., Defendant–Third Party–Plaintiff,Star of the West Milling Company, Third Party Defendant.

No. 09–15417.

United States Court of Appeals, Eleventh Circuit.

March 30, 2011.

Michael J. Warshauer, Lyle Griffin Warshauer, Warshauer, Poe & Thornton, PC, Atlanta, GA, for Burchfield.Robert E. Casey, Jr., Joyce Gist Lewis, Christopher M. Huffines, Casey, Gilson & Liebel, P.C., Atlanta, GA, for CSX Transp., Inc.Appeal from the United States District Court for the Northern District of Georgia.Before MARTIN, COX and BLACK, Circuit Judges.PER CURIAM:

Plaintiff–Appellant Doug Burchfield sued CSX Transportation, Inc. (“CSX”) seeking damages for injuries that he sustained in an accident involving a railcar CSX delivered to his employer. After a jury trial, judgment was entered in CSX's favor. Burchfield now challenges a number of the district court's evidentiary rulings and refusal to give jury instructions that he requested. After thorough review, we reverse and remand the case for a new trial.

I.

A.

On June 3, 2005, CSX delivered a railcar identified as “AEX 7136” to General Mills' cereal processing plant in Covington, Georgia. The railcar was loaded with grain. Two days later, Plaintiff Doug Burchfield and a coworker, Rodney Turk, moved the AEX 7136 from one track to another at the plant. Turk operated a Trackmobile railcar mover.¹ Burchfield worked on the ground.

After moving the AEX 7136, Burchfield and Turk began working downhill from the railcar. A short time later the AEX 7136 rolled down the track and crashed into two other railcars. All three railcars ran over Burchfield. Burchfield suffered a number of injuries in the accident, including loss of the use of his legs.

In June 2007, Burchfield filed suit against The Andersons, Inc. (“Andersons”), the owner of the AEX 7136, and CSX. Burchfield sought to recover general and special damages under theories of negligence and negligence per se. He also asserted a claim for punitive damages. Burchfield alleged that his injuries were caused by the defendants' failure to deliver the AEX 7136 to General Mills' Covington plant with an efficient hand brake, in violation of the Federal Safety Appliance Act and Federal Railroad Administration regulations. Before trial, Burchfield entered into a settlement agreement with Andersons, which was therefore dismissed from the action with prejudice.

Burchfield's case went to trial with a jury in October 2009. At trial, CSX introduced into evidence, over Burchfield's objection, a video made for General Mills by Gary Wolf, a railroad expert, for purposes of an Occupational Safety and Health Administration investigation of Burchfield's accident. The video had no sound. It purported to show the AEX 7136 railcar involved in Burchfield's accident at two different locations at General Mills' Covington plant. The first location was the site where the AEX 7136 railcar was alleged to be located before Burchfield's accident. The second location was a site with a greater slope. At both locations, the video depicted the railcar with an activated hand brake. The railcar was then separated from the Trackmobile railcar mover and stayed in place for more than twenty minutes. The video also purported to show seven other instances in which the AEX 7136's hand brake was applied and released.

In addition to the video, CSX also introduced the video deposition testimony of Bryan Nutt, an expert hired by Andersons, who performed a “brake shoe force test” on the AEX 7136 railcar's hand brake system. In response to an objection by Burchfield, the district court only allowed CSX to introduce portions of Nutt's deposition testimony that involved his factual observations during testing. The district court barred CSX from introducing Nutt's expert testimony.

As part of its defense, CSX also introduced the video deposition testimony of Charles Jobes. Jobes was the designated Fed.R.Civ.P. 30(b)(6) corporate representative for Barloworld Handling, a company hired by General Mills to train its employees how to properly operate and maintain a Trackmobile rail car mover.

After the close of the evidence, the jury returned a verdict for CSX. Burchfield now challenges a number of the district court's evidentiary rulings and its refusal to give jury instructions that he requested. Specifically, Burchfield argues on appeal that the district court erred by admitting: the video created by Gary Wolf; Bryan Nutt's video deposition testimony; and Charles Jobes' video deposition testimony. Burchfield also challenges the district court's refusal to give his requested jury instruction on negligence per se and instructions involving the exercise of reasonable care by CSX.

B.

“We review a district court's evidentiary rulings for abuse of discretion.” Proctor v. Fluor Enters., 494 F.3d 1337, 1349 n. 7 (11th Cir.2007). “[W]hen employing an abuse of discretion standard, we will leave undisturbed a district court's ruling unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir.2007) (alteration in original) (quotation marks omitted). Moreover, “we will not overturn an evidentiary ruling unless the moving party establishes a substantial prejudicial effect.” Perera v. U.S. Fid. & Guar. Co., 544 F.3d 1271, 1274–75 n. 1 (11th Cir.2008). The moving party makes that showing by demonstrating that the error “probably had a substantial influence on the jury's verdict.” Proctor, 494 F.3d at 1352 (quotation marks omitted).

A district court's refusal to give a requested jury instruction is also reviewed for abuse of discretion. Beckford v. Dep't of Corrs., 605 F.3d 951, 957 (11th Cir.2010). An abuse of discretion is committed only when “(1) the requested instruction correctly stated the law, (2) the instruction dealt with an issue properly before the jury, and (3) the failure to give the instruction resulted in prejudicial harm to the requesting party.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1287 (11th Cir.2008) (quotation marks omitted).

II.

We will first address Burchfield's argument that the district court erred in admitting a video made by Gary Wolf, a consulting expert, for General Mills.² He argues that the video depicted a recreation of his accident. In order for the video to be admissible, Burchfield asserts that CSX was required to prove that the testing on the video was performed under substantially similar conditions as those surrounding his accident. To make that showing, Burchfield maintains that expert testimony from Gary Wolf was necessary. CSX argues in response that the video was not a recreation such that it would be subject to a heightened foundational standard. Rather, CSX contends that the video was properly admitted because it was authenticated under Fed.R.Evid. 901(a), which requires a lesser showing from a witness laying a foundation for a photograph or motion picture. See United States v. Belfast, 611 F.3d 783, 819 (11th Cir.2010); United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir.1981).³

Building on this argument that the video was not offered as a recreation of the accident, CSX goes on to assert that it was unnecessary to establish substantial similarity of conditions between the testing on the video and Burchfield's accident. In making this argument, CSX relies on case law suggesting that the demonstrations of mere “general scientific principles” do not require a showing of substantial similarity. See Muth v. Ford Motor Co., 461 F.3d 557, 566 (5th Cir.2006) (“When the demonstrative evidence is offered only as an illustration of general scientific principles, not as a reenactment of disputed events, it need not pass the substantial similarity test.”); McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1401 (8th Cir.1994) (“[W]here the experimental tests do not purport to recreate the accident, but instead the experiments are used to demonstrate only general scientific principles, the requirement of substantially similar circumstances no longer applies.”). To resolve the issue, we examine the way in which CSX used the video at trial.⁴

Our review of the record demonstrates that CSX used the video to discredit Burchfield's theory of the case: that Burchfield applied the hand brake on the AEX 7136 but it was inefficient⁵ and failed to hold the railcar in place. Although CSX contends that the video was not offered as a recreation of Burchfield's accident, CSX's statements at trial belie that assertion. CSX repeatedly emphasized the purported similarities between the events depicted on the video and the circumstances surrounding Burchfield's accident. During opening statements, CSX told the jury:

You are going to see during the course of this case a video that was made of this railcar after this accident occurred. The car's in the same condition. It weighs the same. It has essentially all the same mechanical stuff. It was placed back in the area where Mr. Burchfield left it before this accident happened. And you will see that it does [meet] the definition of efficient. It holds the railcar in place. It'll hold the railcar in place on seven different tests of whether the car would roll or not in this area. It was an efficient hand brake, and it simply had not been applied [by Burchfield]....During closing arguments, CSX stated: “[T]his video utilized the same car with the same load and the same mechanical condition at two locations.”

While we recognize that opening statements and closing arguments are not in themselves evidence, their purpose “is to assist the jury in analyzing the evidence.” United States v. Hasner, 340 F.3d 1261, 1275 (11th Cir.2003). Here, CSX highlighted the video as proof that Burchfield did not apply the hand brake on the ...