[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13007 ELEVENTH CIRCUIT
FEB 16, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 07-00163-CV-CAR-5
SHERRY MCPHERSON,
Plaintiff-Appellee,
versus
MARSHALL ROWE, JR.,
JAMES R. SMITH TRUCKING COMPANY,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(February 16, 2010)
Before BARKETT, HULL and COX, Circuit Judges.
PER CURIAM:
I. BACKGROUND
Sherry McPherson and Marshall Rowe, Jr. were in a motor vehicle accident in
which McPherson hit the back of the truck that Rowe was driving as an employee of
James R. Smith Trucking Company. At the time of the collision, it was dark, the
truck was parked in a lane of traffic, and Rowe was in the truck’s sleeping berth.
McPherson sued Rowe and the trucking company (collectively, “Defendants”) for
damages that resulted from the accident. The case went to trial in front of a jury on
two theories: negligence per se and negligence. McPherson sought to prove that
Rowe had been negligent and violated federal regulations and a Georgia statute by
failing to use lights or reflective triangles to mark the parked truck after dark.
Defendants attempted to demonstrate that McPherson had been contributorily
negligent by speeding, outrunning her headlights, and using her cell phone just prior
to hitting the truck.
The judge found that the uncontroverted evidence demonstrated that Rowe had
violated laws governing the parking and marking of his truck. Therefore, the judge
instructed the jury that Defendants were negligent but that the jury members should
consider whether McPherson was contributorily negligent. (R.11 at 64-67.) The jury
found McPherson 33% responsible for the accident and Defendants 67% responsible.
Defendants appeal the judgment, arguing that they received an unfair trial
because the district court made numerous erroneous evidentiary rulings, directed a
verdict that Defendants had been negligent, and allowed McPherson’s lawyer to make
2
improper inflammatory statements during closing argument. Defendants seek a new
trial.
II. STANDARDS OF REVIEW
With regard to preserved challenges to the admissibility of evidence, “we
review [the district court’s rulings] for clear abuse of discretion.” United States v.
Hunerlach, 197 F.3d 1059, 1065 (11th Cir. 1999) (quotation omitted).
This court reviews de novo a district court’s grant of a motion for judgment as
a matter of law under Federal Rule of Civil Procedure 50. Cleveland v. Home
Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir. 2004) (citing Thosteson v.
United States, 331 F.3d 1294, 1298 (11th Cir. 2003)).
“The trial judge is given broad discretion in controlling counsel’s arguments.
Absent an abuse of discretion, the decision of the trial court, ‘which has had the
opportunity to hear the offensive remarks within the context of the argument and to
view their effect on the jury, should not be disturbed.’” BankAtlantic v. Blythe
Eastman Paine Webber, Inc., 955 F.2d 1467, 1474 (11th Cir. 1992) (quoting Allstate
Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988)).
III. DISCUSSION
A. Evidentiary Rulings
3
Defendants contend that the district court erred in allowing McPherson’s
experts Olson and Kidd to testify at trial as to information and opinions not disclosed
in their expert reports produced pursuant to Federal Rule of Civil Procedure 26. Our
review of the record leads us to the conclusion that, while Olson and Kidd testified
regarding information not in their reports or deposition testimony, the district court
did not abuse its discretion in admitting the testimony. Neither witness testified to
an opinion he did not previously disclose in his report. Defendants cite as “new
information” Olson’s testimony describing the difference between the exemplar
tractor shown in accident reconstruction photos and the actual tractor involved in the
accident. But, review of Olson’s deposition transcript demonstrates that Olson was
not asked if there were differences between the tractors and that, in fact, he identified
possible differences on his own initiative. Neither did Defendants question Kidd at
deposition about the generally-accepted mathematical formula for calculating speed
using the weights of two colliding objects, the subject of his testimony about which
Defendants now complain. And, neither of the witnesses testified to opinions based
on the “new information.” Thus, it is not the type of information that Rule 26
requires an expert to include in his report. Fed. R. Civ. P. 26(a)(2)(B)(i)-(iii)
(requiring that the report disclose the opinions the witness will express and the basis
and reasons for them, the information considered by the witness in forming the
4
reported opinions, and the exhibits that will be used by the expert to summarize or
support his opinions.)
Defendants also argue that the district court erred in excluding and
withdrawing from evidence photos and a video created by Defendants’ accident
reconstruction expert because McPherson’s objection to this evidence was untimely
and because McPherson herself had already used some of the photos in her case-in-
chief at the time she objected. McPherson’s objection was not made at the pretrial
conference, as required by the court’s order. However, the pretrial order specifically
stated that the court may order an exception to the general rule that objections to
evidence not made at the pretrial conference are waived. (R.2-66 at 3 (“Any
objections to exhibits not made at the pretrial conference shall be deemed waived,
unless otherwise ordered by the court . . . .”)) The court allowed and sustained the
objection. And, we find no reversible error in the ruling. There were differences
between the visibility of the exemplar tractor depicted in the photos and video and the
tractor involved in the accident such that the district court did not abuse its discretion
in finding that the evidence did not depict accurately the accident conditions and
therefore did not satisfy the standards of the Federal Rules of Evidence. See Fed. R.
Evid. 403 (“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
5
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”).
Neither do we find reversible error in the district court’s rulings excluding
evidence that McPherson used a private dirt road to access Frank Amerson Jr.
Parkway (the road on which the accident occurred) and evidence that trucks
frequently parked in the lanes of traffic on Frank Amerson Jr. Parkway. The district
court did not abuse its discretion in finding this evidence too tangentially related to
the circumstances of the accident to be admitted.
Finally, we find no abuse of discretion in the admission of testimony regarding
Rowe’s conviction for transporting an illegal alien. Federal Rule of Evidence 609
allows admission of evidence of a witness’s conviction of a felony for the purpose of
attacking the witness’s character for truthfulness, subject to Federal Rule of Evidence
403. Fed. R. Evid. 609(a)(1). Defendants argue that the district court improperly
allowed McPherson to elicit testimony from Rowe regarding his conviction because,
at the time of the questioning regarding his crime, Rowe had not yet answered any
questions in the case and therefore was not properly subject to impeachment.
Admission of this evidence appears to have been premature. But, later Rowe did
provide substantive testimony in the case. The fact that he testified put his character
for truthfulness at issue. And, we find that the district court did not abuse its
6
discretion in finding that the limitation in Rule 403–that the probative value of the
evidence not be substantially outweighed by the prejudice, confusion, or delay
created by admission of the evidence–did not bar admission of this evidence. (R.5
at 17-18.)
B. Negligence Per Se Ruling
Defendants admitted that Rowe pleaded guilty to violation of the Georgia
statute requiring the driver of a vehicle to leave unobstructed a width of highway
opposite a standing vehicle and to leave a clear view of the stopped vehicle from a
distance of 200 feet in each direction upon the highway. See O.C.G.A. § 40-6-202.
They also admitted that Rowe did not place reflective triangles behind his tractor
when it became dark, as required by federal regulations. Based upon these admitted
violations of the motor vehicle code and federal regulations, the district court granted
McPherson’s Rule 50 motion and instructed the jury that Defendants were negligent.
Defendants argued in the trial court, as they do here, that Rowe’s conduct was not
negligence per se because he parked the tractor legally in the daylight and his
violation was unintentional in that he did not mean to sleep past dark, when he was
required to post reflective triangles behind his tractor. The district court did not err
in holding that a violation of the statute need not be intentional to constitute
negligence per se. See Butgereit v. Enviro-Tech Envtl. Servs., Inc., 586 S.E.2d 430
7
(Ga. App. 2003). The case Defendants cite is not to the contrary or applicable on the
facts of this case, where Rowe intentionally parked and did not mark his vehicle with
reflective triangles. Id. at 432-33 (a defendant can rebut the presumption of
negligence per se by proving that the conduct to which he pleaded guilty was
unintentional and in the exercise of ordinary care.).
C. Closing argument
Defendants argue that, when considered in conjunction with the errors they
argue above, McPherson’s counsel’s statements in closing argument that asked the
jury members to put themselves in McPherson’s shoes and accused Defendants of
putting on a misleading defense denied Defendants a fair trial. McPherson argues
that Defendants failed to object to most of the statements that they now claim
prejudiced them. After reviewing the record, we conclude that McPherson is correct.
Defendants objected once to one of the statements they now identify–namely, the
statement that Defendants had “put up a misleading, dishonest defense or they’ve
tried to. Gosh, we’ve had to fight them to get it out.” (R.11 at 58.) The court did not
explicitly rule on the objection, stating only that every defendant is entitled to a
defense. (Id.) Defendants did not renew their objection to the allegedly improper
comment.
8
To the extent that Defendants failed to object to statements they now argue
were improper, those objections were waived. Haygood v. Auto-Owners Ins. Co.,
995 F.2d 1512, 1517 (11th Cir. 1993) (citing Allstate, 845 F.2d at 319 & n.4). And,
we find no reversible error in the district court’s handling of the objection stated at
trial. On this record, we do not find that the objected-to statement was the sort of
“substantial” error that would entitle Defendants to a new trial. Id.
For the foregoing reasons and because we do not find that the alleged errors,
taken together, denied Defendants a fair trial, we affirm the judgment.
AFFIRMED.
9