UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1155
CATHY MORRIS,
Plaintiff – Appellant,
v.
DORMA AUTOMATICS INCORPORATED; CAROLINA DOOR CONTROLS,
INCORPORATED,
Defendants – Appellees,
and
KMART CORPORATION,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:09-cv-03267-DCN)
Submitted: June 21, 2013 Decided: August 8, 2013
Before KING, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Kevin Holmes, THE STEINBERG LAW FIRM, L.L.P., Charleston,
South Carolina, for Appellant. Robert H. Hood, James B. Hood,
T. Happel Scurry, Deborah Harrison Sheffield, HOOD LAW FIRM,
LLC, Charleston, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Plaintiff Cathy Morris appeals from the district court’s
entry of summary judgment in favor of defendants Dorma
Automatics, Inc. (“Dorma”) and Carolina Door Controls, Inc.
(“CDC”). Morris posits a single assignment of error in her
opening brief, that is, whether the court incorrectly excluded
certain of her trial exhibits pursuant to Rule 407 of the
Federal Rules of Evidence. As set forth below, we reject
Morris’s contention and affirm.
Morris initiated this suit seeking compensation for
injuries she suffered on June 24, 2008, when she became stuck in
a set of recently installed automatic doors at a Kmart Store
located in Charleston, South Carolina. 1 Prior to trial, Dorma
and CDC sought to exclude from evidence seventeen exhibits,
consisting of work orders, service reports, and warranty bills,
that Morris intended to offer in support of her manufacturing
defect claim. The district court granted the motion in part,
excluding five documents under Federal Rule of Evidence 407. 2
1
For purposes of our review of the district court’s summary
judgment award, we recite the facts in the light most favorable
to Morris, as the nonmoving party. See Durham v. Horner, 690
F.3d 183, 185 n.3 (4th Cir. 2012).
2
In its entirety, Rule 407 of the Federal Rules of Evidence
provides that
(Continued)
2
The district court’s evidentiary ruling, which we review
for abuse of discretion, is the sole issue identified in this
appeal. See United States v. Rooks, 596 F.3d 204, 209-10 (4th
Cir. 2010) (standard of review); Snyder v. Phelps, 580 F.3d 206,
217 (4th Cir. 2009) (“Appellant must raise in its opening brief
all the issues it wishes the court to address.” (internal
quotation marks omitted)).
In an order explaining its ruling, the district court
carefully differentiated between the proffered documents that
described measures actually implemented after June 24, 2008, and
those documents that did not. 3 See J.A. 167-79. 4 Morris does
[w]hen measures are taken that would have made an
earlier injury or harm less likely to occur, evidence
of the subsequent measures is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another
purpose, such as impeachment or — if disputed —
proving ownership, control, or the feasibility of
precautionary measures.
3
In her brief, Morris mischaracterizes the district court’s
evidentiary ruling as excluding evidence that the court did not,
in fact, exclude. Compare Br. of Appellant 16 (challenging
exclusion of August 14, 2008 work order (J.A. 76) and August 15,
2008 service report (J.A. 77)); with J.A. 174-75 (explaining
that those documents would be admitted provided that Morris
established a proper foundation).
3
not dispute that the evidence excluded by the district court
describes measures taken that would have made her injury less
likely to occur, or that she intended to offer such evidence to
prove a defect in the automatic doors. Instead, she asks us to
craft a judicial exception to Rule 407, but provides no
justifiable reason for doing so. 5 In these circumstances, we
readily conclude that the district court did not abuse its
discretion by applying Rule 407 and excluding the two work
orders (J.A. 74, 78), two service reports (J.A. 75, 80), and one
warranty bill (J.A. 81) as evidence of subsequent remedial
measures.
Pursuant to the foregoing, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
4
Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
5
Morris devotes a significant portion of her brief to the
alternative argument that the excluded evidence should have been
admitted for the limited purpose of impeaching the defendants’
expert witness, who would have opined that the doors were
functioning properly. Correct or not, this contention is
irrelevant. Even were it proper impeachment, the contested
evidence would not have been admissible for substantive
purposes, and it could not save what Morris’s trial counsel has
conceded to be otherwise insufficient evidence. See J.A. 163
(stating that “in light of [the district court’s] evidentiary
rulings . . . I really do not have sufficient evidence to
establish a defective product case”).
4
materials before this court and argument would not aid the
decisional process.
AFFIRMED
5