Case: 15-14224 Date Filed: 10/13/2016 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14224
Non-argument Calendar
________________________
D.C. Docket No. 3:14-cv-00179-WHA-WC
JIMMIE ROGERS,
Plaintiff–Appellee,
ROBERT ROGERS,
Plaintiff,
versus
SOUTH STAR LOGISTICS, INC.,
SURINDER SINGH GILL,
Defendants–Appellants,
GILL SINGH,
Defendant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(October 13, 2016)
Case: 15-14224 Date Filed: 10/13/2016 Page: 2 of 16
Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
This appeal arises from three evidentiary disputes in a negligence action.
Plaintiff Jimmie Rogers sued Defendant Surinder Singh Gill and his employer,
Defendant South Star Logistics, Inc., for negligent driving resulting in a traffic
accident. After the jury awarded Plaintiff $500,000, Defendants moved for a new
trial based on these three evidentiary disputes. The district court denied the
motion. Defendants appeal; we affirm.
BACKGROUND
In March 2014, Plaintiff sued Defendants for negligence. Plaintiff alleged
that on September 12, 2012, he was driving a pickup truck on a highway as part of
a caravan of vehicles. According to the complaint, Plaintiff and the other drivers
in the caravan were traveling slowly in preparation for a right turn when Gill,
driving a tractor-trailer for South Star, negligently collided into Plaintiff from
behind.1
At trial, three eye-witnesses described the crash. Roughly two versions of
the accident arose. Plaintiff and his cousin testified that they were travelling south
on U.S. Highway 431 as part of a caravan of vehicles. Plaintiff was last in the
1
Plaintiff alleged several other claims, but the district judge granted judgment as a matter of law
on each. They are not at issue here.
2
Case: 15-14224 Date Filed: 10/13/2016 Page: 3 of 16
caravan, and Plaintiff’s cousin was second to last. While traveling south on the
highway, the caravan aimed to turn onto a small road that intersected the highway
on the highway’s eastern side. Because a median prevented the caravan from
turning left onto the road, the caravan traveled a short distance further south on the
highway and U-turned from the southbound left lane. Both Plaintiff and his cousin
verified that no traffic was oncoming and then U-turned into the right lane of the
northbound side of the highway. Plaintiff and his cousin began slowly traveling
northward towards the small intersecting road a short distance ahead. Plaintiff and
his cousin each signaled that they were turning right onto the road, but around the
time of Plaintiff’s turn, Gill’s northbound tractor-trailer struck Plaintiff from
behind.
Contradicting Plaintiff’s account, Gill testified that while he was driving
north in the right lane of the highway, Plaintiff sped past him from the left lane,
swerved into the right lane, and braked too quickly for Gill to stop.
DISCUSSION
Three rulings at trial, all objected to by Defendants, form the basis of this
appeal. First, the district judge permitted Plaintiff’s counsel to read to the jury a
letter written by Plaintiff’s doctor confirming the costs of anticipated spinal
surgery for Plaintiff. Second, the district judge permitted Plaintiff’s counsel to
solicit testimony describing a policy of defendant South Star’s concerning the
3
Case: 15-14224 Date Filed: 10/13/2016 Page: 4 of 16
distance that its drivers are expected to maintain between themselves and other
vehicles. Third, Plaintiff was allowed to testify that he had not undergone surgery
for the injuries he received in the accident because, according to his doctors, his
blood pressure was too high to undergo surgery. Defendants asserted the above
rulings to be erroneous and the grounds for a new trial. The district judge denied
the motion. Plaintiff appeals. We agree that the district court did not abuse its
discretion either in the above evidentiary rulings or in its denial of Defendant’s
motion for a new trial.
I. Standard of Review
“We review rulings on the admission of evidence and motions for new trial
for abuse of discretion.” Millennium Partners, L.P. v. Colmar Storage, LLC,
494 F.3d 1293, 1301 (11th Cir. 2007) (quoting Ad-Vantage Telephone Directory
Consultants v. GTE Directories Corp., 37 F.3d 1460, 1463 (11th Cir. 1994)). “An
abuse of discretion arises when the District Court’s decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law, or an improper application
of law to fact.” United States v. Gamory, 635 F.3d 480, 492 (11th Cir. 2011)
(quoting United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005)).
Even if “a District Court abuses its discretion in admitting evidence, we may
still find the error harmless.” Sovereign Military Hospitaller Order of St. John of
Jerusalem of Rhodes & of Malta v. Fla. Priory of Knights Hospitallers of
4
Case: 15-14224 Date Filed: 10/13/2016 Page: 5 of 16
Sovereign Order of St. John of Jerusalem, Knights of Malta, Ecumenical Order,
702 F.3d 1279, 1295 (11th Cir. 2012) (quoting Gamory, 635, F.3d at 492). “An
evidentiary error is harmless if ‘sufficient evidence uninfected by any error
supports the verdict, and the error did not have substantial influence on the
outcome of the case.’” Id. (quoting United States v. Khanani, 502 F.3d 1281, 1292
(11th Cir. 2007)). “[T]he inquiry is always directed to the same central question—
how much of an effect did the improperly admitted or excluded evidence have on
the verdict?” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1162 (11th
Cir. 2004).
II. Dr. Burkus’s Letter Concerning Anticipated Costs for Plaintiff’s
Surgery
The jury returned a verdict for Plaintiff in the amount of $500,000. One
item of compensatory damages that had been requested by Plaintiff was future
medical expenses, which included the anticipated costs of a three-level spinal
fusion surgery made necessary as a result of the injuries he suffered during the
automobile accident. At trial, Plaintiff’s counsel indicated to the jury that the total
future and past medical damages were $152,000, with between $114-115,000 2 of
those damages attributable to his orthopedic surgeon’s stated charge for this
surgical procedure.
2
As discussed infra, the actual amount of the surgery was $114,453.00.
5
Case: 15-14224 Date Filed: 10/13/2016 Page: 6 of 16
Defendants argue that Plaintiff failed to provide any non-hearsay evidence to
support his assertion that the anticipated surgery would cost $114,453.00.
Moreover, Defendants contend that the district court erred by permitting Plaintiff’s
counsel to read to the jury the letter from Plaintiff’s orthopedic surgeon setting out
the charge for the procedure. Given these alleged evidentiary deficiencies
underlying the jury’s determination of damages, Defendants argue that they are
entitled to a new trial. We disagree.
Shortly before trial, Plaintiff’s orthopedic surgeon, Dr. John Burkus,
submitted to a videotaped deposition to be used at the trial of the case. During that
deposition, Dr. Butkus testified about Plaintiff’s injuries, his past medical
treatment, and his anticipated future medical treatment. Defense counsel cross-
examined him about the estimated costs for the surgical fusion procedure, which
costs the doctor confirmed were laid out in the letter to which both the doctor and
both counsel referred during the video deposition. It is this letter that set out the
specific amount that the doctor would charge Plaintiff for the surgical procedure.
Prior to trial, but after the deposition, Defendants filed objections to various
items on Plaintiff’s exhibit list, one of which was the above letter from Dr. Burkus
concerning the cost for the surgical procedure. Defendants based their objection
on Federal Rule of Evidence 802 and 901, stating that this “record” was not related
to the accident. In its summary order ruling on these objections to the exhibit list,
6
Case: 15-14224 Date Filed: 10/13/2016 Page: 7 of 16
the district court sustained the objection to admission of the letter on hearsay
grounds, but indicated that Dr. Burkus could testify as to his findings. The letter
read as follows:
To Whom It May Concern:
[Plaintiff] has been under my care since his motor vehicle
collision on September 12, 2012.
As a result of the September 12, 2012 collision, [Plaintiff]
suffered a traumatic cervical injury at the C3-4, C4-5 and CS-6
levels of his cervical spine. I relate all of his problems in this
regard to the accident of September 12, 2012.
[Plaintiff] is a candidate for an Anterior Cervical
Decompression, Fusion with Instrumentation, Iliac Crest Bone
Graft and Allograft at C3-4 thru C5-6. This surgery entails
hospitalization for 1-2 days. The surgeon’s fees for this
procedure are approximately $34,975.00. The hospitalization
fees are approximately $78,478.00. The total cost for this
surgery would be approximately $114,453.00.
I have advised [Plaintiff] that even if he has this surgery, he will
still more than likely suffer from some permanent disability in
the form of pain, decreased mobility and strength.
If you have any questions or concerns, please do not hesitate to
contact my office . . . .
When Dr. Burkus’s testimony via video deposition was presented at trial,
defense counsel interrupted the video to protest what he knew was about to be Dr.
Burkus’s impending discussion of this letter. During the sidebar discussion, the
district judge indicated that the doctor could testify about what he wrote, stating, “I
7
Case: 15-14224 Date Filed: 10/13/2016 Page: 8 of 16
sustained the objection to the letter as such. [Dr. Burkus] can testify to what he --
to what he wrote and what he said and all. That was the point of all of this.”
The video deposition proceeded. In that deposition, Dr. Burkus noted that
he would be using electronic records to refer to Plaintiff’s condition and treatment.
He discussed the injuries Plaintiff suffered as a result of the accident, including the
need for the surgical fusion. He was subject to cross-examination by Defendants’
counsel. Of pertinence to the present issue, the doctor testified specifically about
the charge for performing fusion surgery on Plaintiff. Specifically, defense
counsel 3 referred the doctor to the letter in question (marked as an exhibit for the
deposition) and Doctor Burkus confirmed that this letter, which he wrote and
signed, concerned “the surgeries that [Plaintiff] would need and the anticipated
costs for these services.” Doctor Burkus indicated that he writes such letters to
patients considering surgery to alert them both to the total cost of the procedure
and to their own co-pay responsibility. Further, he testified that the costs cited in
the letter are the usual and customary charges for the procedure. Moreover,
3
Because the transcripts of the deposition found in the record are partial transcripts and skip
many pages in the complete transcript, it is not altogether clear which attorney is asking which
questions. As best we can determine, it looks as if defense counsel is asking the above questions.
Indeed, the district court indicated that defense counsel cross-examined on this matter. But our
analysis is unchanged even if it were Plaintiff’s counsel who was the questioner. The topic was
covered during the deposition and defense counsel had an opportunity to ask any questions it
chose to impeach Dr. Burkus’s determination of the reasonable cost of the procedure.
8
Case: 15-14224 Date Filed: 10/13/2016 Page: 9 of 16
counsel questioned the doctor as to the possibility of a lower cost should only a one
or two-level fusion be performed, instead of a three-level.
Dr. Burkus, however, never repeated during his testimony the precise
number that he had set out in the letter as being the reasonable and anticipated
charge for the surgical fusion. Instead, with both him and counsel well aware of
the amount of the costs set out in the letter, everyone during the deposition simply
referred to the letter during the discussion of that matter. Presumably, Plaintiff’s
counsel never envisioned that the letter, marked as an exhibit to the deposition,
would not be admitted along with the deposition at trial.
At the conclusion of the playing of the video, the district judge noted that his
assumption had been that the doctor would actually state during his testimony the
amount of the costs of the surgery that the doctor had calculated. The judge
initially stated:
I was expecting Burkus to testify on there as to what he was --
he had said that the reasonable and necessary charges for that
surgery would be, and he didn’t go into that. My ruling on
sustaining the exhibit was that I didn’t want the exhibit to be a
document that would go back to the jury since the doctor could
testify to it. I’m not inclined at this time to let the letter that he
referred to in the deposition be read without it coming in as an
exhibit.
In response, Plaintiff’s counsel argued, “Dr. Burkus testified that all his
charges related to past and future would be reasonable and necessary. . . . I think
I’ve laid the predicate for that to come in.” Having heard from both counsel, the
9
Case: 15-14224 Date Filed: 10/13/2016 Page: 10 of 16
district judge announced, “I’m going to allow the plaintiff’s counsel to read Dr.
Burkus’s letter, but it won’t come in as an exhibit.” Accordingly, trial resumed
and Plaintiff’s counsel read the letter to the jury in order to establish that
$114,453.00 was what Dr. Burkus would charge for the surgery.
Defendants objected and, after trial, they moved for a new trial arguing that
the letter constituted inadmissible hearsay and should therefore not have been read
to the jury. Further, because damages are an essential element of a negligence
claim, they argued that Plaintiff had failed to prove this element of his claim. The
district judge denied the motion for a new trial and reasoned as follows:
[T]he court’s [decision to allow Plaintiff’s counsel to read the
letter] was not erroneous and was consistent with its earlier
order. The letter did not come in as an exhibit, as the order
provided. Additionally, in the video deposition Dr. Burkus
authenticated the letter, stating that it was “a letter I wrote and
signed regarding the surgeries that [Plaintiff] would need and
the anticipated costs for these services.” Defense counsel also
cross-examined Dr. Burkus on the letter. During cross-
examination, Dr. Burkus confirmed it was a letter he wrote,
dated July 25, 2013, and he discussed how the letter was written
and the method he used to determine the costs of the past and
future medical procedures.
Thus, defense counsel had an adequate opportunity to cross-
examine Dr. Burkus about the letter, and did so in the video
deposition. Further, the court’s ruling at trial was consistent
with its pretrial order regarding the letter. For these reasons,
the court finds that this ruling did not affect the Defendants’
“substantial rights” and that the reading of the letter is not an
adequate ground to justify a new trial under Fed. R. Civ. P. 59.
10
Case: 15-14224 Date Filed: 10/13/2016 Page: 11 of 16
In this appeal, Defendants raise essentially the same argument: the letter
constitutes hearsay and admitting the letter prejudiced Defendants because Plaintiff
otherwise failed to establish the cost of the anticipated surgery. As discussed
above, we review the district judge’s decision for abuse of discretion and, if an
error occurred, we reverse only if the error substantially influenced the outcome of
the action.
Given the circumstances described above, we find no abuse of discretion in
how the district court handled this matter. Clearly, during his deposition, Dr.
Burkus adopted the number stated in the letter as the reasonable costs of the
surgical fusion. Both Plaintiff’s and defense counsel questioned him about this
matter, and both knew full well what the number was. Albeit Plaintiff’s counsel
could have avoided any question about this issue had he simply asked the doctor to
state for the record the number that both defense and Plaintiff’s counsel, as well as
the doctor, were referring to during the testimony, 4 there was no doubt about what
that number was nor that Dr. Burkus adopted the number in his testimony setting
out the reasonable costs of the surgery.
In sum, we find that the district judge did not abuse his discretion in
allowing Plaintiff’s counsel to read Dr. Burkus’s letter to the jury.
4
Given our determination that the district court did not abuse its discretion in its handling of this
issue, we do not need to decide whether the district court was wrong in its initial conclusion that
the doctor’s letter setting out the fees for the surgical procedure was hearsay.
11
Case: 15-14224 Date Filed: 10/13/2016 Page: 12 of 16
III. Admission of South Star’s “Following” Policy
At trial, Plaintiff’s counsel solicited testimony from South Star’s corporate
representative that a company policy “required [South Star] drivers to stay a
minimum of seven seconds behind any vehicles that they’re following down the
road.” Counsel further alluded to the policy during a subsequent cross-
examination of Defendants’ expert witness.
Defendants argue that the district judge erred in admitting evidence of South
Star’s “following” policy because the case did not involve a situation in which
Defendants’ truck driver was arguably driving too close, meaning the policy was
irrelevant. We find no abuse of discretion. The district court noted that there was
evidence that would have supported a theory that the truck driver hit Plaintiff’s
vehicle because the driver failed to keep enough distance between his vehicle and
traffic ahead of him. In addition, Defendants had the opportunity to adduce
evidence and argue that non-adherence to the above policy was irrelevant to the
cause of the accident.
In addition, substantial evidence of negligence existed otherwise. See
Brown v. Cedar Rapids & Iowa City Ry. Co., 650 F.2d 159, 163 (8th Cir. 1981)
(“[I]f the court had erred in admitting [an inapplicable safety] standard, there was
such strong other evidence of negligence . . . that the . . . standard was merely
cumulative evidence. Erroneous admission of cumulative evidence is harmless
12
Case: 15-14224 Date Filed: 10/13/2016 Page: 13 of 16
error.”). In Alabama, “[w]hether a person involved in an accident acted reasonably
in operating his motor vehicle depends on all of the circumstances surrounding the
accident.” Senn v. Ala. Gas Corp., 619 So.2d 1320, 1322 (Ala. 1993).
Specifically, there was evidence (1) that Plaintiff and his cousin each used
their turn signals, (2) that Gill admitted seeing the two vehicles’ signals, (3) that
other vehicles behind Plaintiff shifted from the right lane to the left lane to avoid
crashing into Plaintiff, (4) that soon after the crash, Gill failed to offer an
explanation to the investigating officer for not shifting to the left lane, (5) that
neither Plaintiff nor his cousin heard Gill brake, (6) that Gill’s elevated position in
the tractor-trailer allowed him to view the road better than an ordinary driver, and
(7) that Gill could have seen Plaintiff from a quarter to a half mile away and could
have stopped his tractor-trailer within that distance.
Accordingly, even had there been any error in admission of South Star’s
policy, the error was harmless. In short, we find no reversible error based on the
district court’s admission of evidence of this policy.
IV. Blood Pressure Testimony
Finally, Defendants argue that the district court should have granted their
motion for a new trial based on Plaintiff’s testimony and argument that he had
failed to have the surgical fusion procedure done in the period of time since the
accident because his doctor had refused to perform the procedure until Plaintiff’s
13
Case: 15-14224 Date Filed: 10/13/2016 Page: 14 of 16
blood pressure could be lowered. Defendants argue that Plaintiff’s response
constituted hearsay as it was Plaintiff’s doctor who made the diagnosis of high
blood pressure, not Plaintiff. We find no abuse of discretion by the district court in
permitting Plaintiff to so testify.
In arguing that Plaintiff’s injuries were not as serious as he alleged,
Defendants had focused on the fact that Plaintiff had failed to have the surgery
performed, even after he had obtained “Obamacare” insurance. In particular,
defense counsel pushed Plaintiff on this point during cross-examination. In
response, as set out above, Plaintiff explained that it was his doctor’s decision not
to perform the surgery—based on Plaintiff’s high blood pressure—that had
prompted Plaintiff’s delay in getting the surgery.
The district court found no ground for a new trial based on the above
because defense counsel had invited the response through his questioning of
Plaintiff. 5 We agree. See United States v. Parikh, 858 F.2d 688, 695 (11th Cir.
1988) (upholding admission of out-of-court statements by a government witness,
5
Both parties assume that Plaintiff’s testimony constituted hearsay. We note, however, that a
witness may explain why he has or has not taken a particular action without necessarily running
afoul of the rule against admission of hearsay evidence, which is evidence offered to prove the
truth of the matter asserted. See United States v. Sanchez, 32 F.3d 1002, 1005 (7th Cir. 1994)
(“The testimony at issue here was not offered to prove the truth of the matter asserted, but only
to prove why [the listener] acted as he did. It was not hearsay, and it was not error for the district
court to admit it.”); see also United States v. Rivera, 780 F.3d 1084, 1092 (11th Cir. 2015)
(explaining that statements “offered only to show their effect on the listener” are not hearsay
because the statements are offered not for the truth of the matter asserted but to “provide[] a
context to assess [listener]’s response”). Nevertheless, even assuming that the statement was
hearsay, Defendants invited the response.
14
Case: 15-14224 Date Filed: 10/13/2016 Page: 15 of 16
when responding to an inquiry by defense counsel, on ground that counsel
“invited” the error). Accord United States v. Sarras, 575 F.3d 1191, 1216 (11th
Cir. 2009) (“Because [the defendant]’s question elicited the very testimony about
which he now complains, he is entitled to no relief.”); United States v. Driver, 242
F.3d 767, 770 (7th Cir. 2001) (Easterbrook, J.) (“If . . . defense counsel elicits
testimony at trial, the defendant can’t argue on appeal that the evidence was
hearsay and should have been excluded.”).
In sum, Defendants invited Plaintiff’s testimony. Moreover, even had jurors
considered Plaintiff’s testimony as establishing the truth of the matter asserted—
that Plaintiff actually has high blood pressure—Defendants would not have been
unfairly prejudiced by that inference. Plaintiff based his claim of damages on past
medical bills and the existence of serious spinal injuries that he sustained as a
result of the collision. High blood pressure was neither a result of the collision nor
a ground for damages. Hence, whether or not Plaintiff had high blood pressure,
this matter did not factor into the calculation of damages. Plaintiff’s testimony that
his doctors had used his high blood pressure as their explanation for not
performing the surgery prior to trial was, however, relevant to negating
Defendant’s argument that the delay in the surgery demonstrated that Plaintiff had
not, in fact, suffered the injuries he alleged. Thus, we find no abuse of discretion
by the district court on this ruling.
15
Case: 15-14224 Date Filed: 10/13/2016 Page: 16 of 16
CONCLUSION
We find either no reversible error in any of the challenged evidentiary
rulings. Accordingly, we AFFIRM.
16