IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11158
Summary Calendar
TAM T. MARTINEZ,
FLOYD MARTINEZ;
Plaintiffs-Appellants,
versus
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY;
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:96-CV-0969-P)
June 26, 1998
Before HIGGINBOTHAM, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiffs Tam and Floyd Martinez appeal from an adverse jury
verdict on their insurance coverage claim against defendant State
Farm Mutual Automobile Insurance Co. The plaintiffs contended that
the negligence of an underinsured driver was the proximate cause of
their injuries, and they sought benefits under the underinsured
motorist provision of their State Farm insurance policy. The jury
concluded that the underinsured motorist was negligent, but it
found that this negligence was not the proximate cause of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
plaintiffs’ injuries. The plaintiffs raise a variety of issues on
appeal.
The plaintiffs first contend that the district court erred in
admitting as impeachment evidence a surveillance videotape of Tam
Martinez, offered by State Farm to impeach her testimony that the
accident gave her serious physical injuries. The videotape
apparently came into existence within 30 days before trial and was
not produced to the plaintiffs. Under the Federal Rules of Civil
Procedure, impeachment evidence need not be produced to the
opposing side. See Fed. R. Civ. P. 26(a)(3). There is some
question as to whether this evidence also went to the substance of
the plaintiffs’ claims. Cf. Chiasson v. Zapata Gulf Marine Corp.,
988 F.2d 513 (5th Cir. 1993). Regardless of whether the district
court erred in admitting this evidence, however, the plaintiffs
must still demonstrate that the erroneously admitted evidence
affected their substantial rights. See Great Plains Equip. v. Koch
Gathering Sys., 45 F.3d 962, 967 (5th Cir. 1995). Here, assuming
the evidence went to the plaintiffs’ damages, the admission of the
evidence is irrelevant, for the jury never reached the damages
issue. See id. Rather, the jury found that the negligence of the
underinsured driver was not the proximate cause of the accident;
the videotaped evidence therefore was irrelevant to the jury
verdict and no substantial right of the plaintiffs was affected by
the trial court’s evidentiary ruling.
The plaintiffs also contend that the district court erred in
dismissing their negligence per se claim upon State Farm’s motion.
2
Yet the plaintiffs never pled this theory of liability, so the
district court did not abuse its discretion in refusing to submit
it to the jury. See Morris v. Homco Int’l, Inc., 853 F.2d 337, 342
(5th Cir. 1988). The plaintiffs failed to object to the district
court’s separation of the negligence and proximate cause issues in
its jury charge. Although it may not be standard practice to
separate these issues, this separation did not constitute plain
error. Furthermore, we find from Diana Blythe’s testimony that
there was sufficient evidence from which the jury could have
concluded that the accident was the fault of Tam Martinez.
Accordingly, the district court did not abuse its discretion in
denying the plaintiffs’ motion for a new trial.
AFFIRMED.
3