IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50632
Summary Calendar
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GUADALUPE MARTINEZ,
Plaintiff-Appellant-
Cross-Appellee,
VERSUS
FORD MOTOR COMPANY,
Defendant-Appellee-
Cross-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(SA-96-CV-271)
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November 2, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
In this diversity action for negligence and product liability,
Guadalupe Martinez sued Ford Motor Company (“Ford”) for injuries
sustained when he was hit by a Ford truck. Martinez asserted that
his injury resulted from the defective braking system of the truck.
The district court entered a judgment in favor of Ford, consistent
*
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should not be published and is not precedent except under the limited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.
with the jury verdict.
Martinez appeals on the ground that the court erroneously
allowed Ford to present an allegedly inadmissible videotape
simulation of the braking system’s operation. Ford cross-appeals
on the ground that the court erroneously denied costs. We affirm,
except that we vacate and remand the issue of costs.
I.
Martinez had been unloading bundles of metal rebar from the
flatbed of an eighteen-wheel tractor trailer. These bundles
consisted of about 175 rebar sticks, each weighing six to ten
pounds. Martinez wrapped a chain around one of the bundles and
attached it to the rear of a Ford truck parked uphill just a few
feet away.
John Zalaznik, Martinez’s supervisor, told him that there was
too much slack in the chain and that the truck was parked too far
from the flatbed. Zalaznik ordered Martinez to tighten the chain,
keeping it taut as he moved the truck closer to the flatbed.
Martinez proceeded to tighten the chain as Zalaznik entered the
truck cab.
Because the truck was parked on an incline, the emergency
brake was engaged. Depressing the clutch and the foot brake,
Zalaznik disengaged the emergency brake to allow the truck to roll
slowly backward, downhill toward the flatbed. According to
Zalaznik, the foot brake did not function properly, and the truck
rolled without resistance, backed into Martinez, and pinned him
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against the flatbed. Zalaznik quickly dropped the clutch, causing
the truck to lurch forward, which unpinned Martinez, who suffered
serious injuries. The jury found that the brakes did not
constitute an unreasonably dangerous defect and that Ford’s
negligence, if any, was not the proximate cause of Martinez’s
injury.
II.
Martinez argues that the district court committed reversible
error in permitting Ford to show the jury a videotape simulation of
the brake operating system. He contends that the simulation was
not “substantially similar” to the condition of the brakes at the
time of the accident and therefore was inadmissible. See Barnes v.
General Motors, 547 F.2d 275, 277 (5th Cir. 1977) (demanding
“similarity of circumstances and conditions” as foundational
predicate to introduction of demonstration evidence). Ford argues
that the simulation presented the worst-case scenario, that is, the
condition of the brakes that would be most favorable to Martinez’s
claims of product liability and negligence, and was not, therefore,
prejudicially dissimilar. Additionally, Ford contends that
Martinez waived his right to argue this issue on appeal by failing
to object when the tape was offered into evidence.
Martinez’s theory is that a product defect or Ford's
negligence resulted in a low fluid level in the hydraulic brake
system, resulting in the alleged malfunction. Ford counters that
a low fluid level—even no fluid at all—would not cause the
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malfunction of which Martinez complains.
To support its argument, Ford produced a videotape showing
that the brakes on the truck would still be operable after all the
fluid had been drained. Martinez argues that this demonstration
was not “substantially similar” to the circumstance of the
accident, because when Martinez was injured, there was some brake
fluid in the hydraulic brake system, and some fluid could be more
problematic than no fluid.
Ford claims that Martinez failed to preserve this question for
appeal because, although he moved in limine to exclude the
videotape, motions in limine do not absolve a party of the
responsibility to object at trial when the offending materials are
offered into evidence. United States v. Estes, 994 F.2d 147, 149
(5th Cir. 1993). We need not reach this question, for we conclude
that even if the issue was properly preserved, there was no abuse
of discretion.
The tape was not prejudicial or misleading, but rather
provided unextraordinary visual support for the testimony of
Mr. Pelkey, Ford's expert. Moreover, the jury had other strong
reasons to believe Ford’s argument over that of Martinez, including
the fact that Zalaznik never mentioned brake failure when he
explained the circumstances of the accident to police at the scene.
Silence on such a critical component of the accident most likely
seemed as incredulous to the jury as it does to us.
We permit district courts wide latitude in admitting and
excluding evidence, and there is no indication that the district
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court abused its discretion here. The test that was videotaped was
probative on the issue of the effect of low or non-existent
hydraulic fluid on the operation of the brakes. No injustice was
done by admitting the evidence.
III.
Ford argues that the district court erred in denying it court
costs without articulating a justification for doing so. This
circuit “recognize[s] a strong presumption that the court will
award costs to the prevailing party.” Salley v. E.I. DuPont
de Nemours & Co., 966 F.2d 1011, 1017 (5th Cir. 1992); Hall v.
State Farm Fire & Cas. Co., 937 F.2d 210, 216-17 (5th Cir. 1991).
While FED. R. CIV. P. 54(d) permits the court “to exercise its
discretion and withhold an award of costs to the prevailing party,”
Salley, 966 F.2d at 1017, the exercise of such discretion is an
exception to the general rule. As such, “we require the district
court to state its reasons” for refusing. Id.
The court failed to do so. Consequently, we remand with
instruction either to award costs to Ford or to state reasons for
not doing so. The district court “cannot require the prevailing
party to share costs unless the costs serve as a sanction” against
Ford. Id.
In summary, the judgment is AFFIRMED, except that the order
denying costs is VACATED, and this case is REMANDED for
reconsideration of costs.
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