UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
GARY CARTER REDDIN,
ROBINSON PROPERTY GROUP
LIMITED PARTNERSHIP, doing
business as Horseshoe Casino & Hotel,
Appeal from the United States District
for the Northern District of Mississippi
February 7, 2001
Before POLITZ, DAVIS, and BENAVIDES, Circuit
POLITZ, Circuit Judge:
Gary Carter Reddin appeals the district court's
grant of a new trial and various evidentiary rulings during his second
trial. For the reasons assigned, we affirm.
At just after midnight on May 7, 1995, Reddin
entered the Horseshoe Casino in Tunica, Mississippi. As he walked up the
gang plank connecting the shore to the gambling barge, he fell and injured
his knee. A security guard witnessed the fall. Reddin entered the gaming
area and shortly thereafter was treated in the EMT area after his knee
began to swell. Subsequently, he had six operations culminating in a total
Reddin filed suit against Robinson Property
Group, L.P., d/b/a Horseshoe Casino & Hotel. At a trial presided over
by a magistrate judge by consent, the jury returned a verdict in his favor
in the amount of $800,000. The trial court granted Horseshoe a new trial,
citing the improper admission of subsequent remedial measures evidence,
and an excessive verdict. Prior to the second trial, the court held an
evidentiary hearing on Reddin's request for an adverse inference instruction
relative to a missing tape that allegedly depicted his fall. The court
gave an instruction on the missing tapes but declined to give an adverse
inference instruction. The second trial resulted in a jury verdict for
Horseshoe. The court denied Reddin's motion for judgment as a matter of
law or alternatively a new trial. This appeal followed.
A. District Court's Grant of a New Trial
"Our review of a district court's decision
to grant a new trial is broader than our review of a district court's denial
of a new trial, but the standard remains one of abuse of discretion."(1)
Our review of the ruling on the motion for a new trial reveals no such
abuse. The court gave sound and adequate reasons for its ruling and we
find no basis to warrant reinstatement of the original jury verdict. In
the first trial Reddin was permitted to introduce evidence of Horseshoe's
placement of warning signs and tape around the area of his fall. The court
correctly notes extensive case law holding that such evidence is inadmissible
under Rule 407 of the Federal Rules of Evidence. This fully justified the
trial court's conclusion that allowing such evidence constituted prejudicial
error. Further, the court did not abuse its discretion in rejecting Reddin's
contention that such evidence only served to impeach a Horseshoe witness,
most notably because Reddin's counsel argued in closing that if nothing
was wrong with the floor, "why did they rope it off?" We find such error
sufficient for the grant of a new trial. We, accordingly, need not discuss
the court's conclusion relative to the award of $800,000.
B. Evidentiary Rulings During The Second
Reddin next challenges various evidentiary
rulings during his second trial. We review admission and exclusion of evidence
for abuse of discretion.(2) An error in
the exclusion of evidence is not grounds for reversal unless substantial
rights are affected or unless the affirmance is inconsistent with substantial
justice.(3) The burden of presenting an
adequate record on appeal is on the appellant.(4)
Initially, Reddin challenges the district
court's decision to refuse an adverse inference instruction for Horseshoe's
alleged bad faith destruction of a video tape depicting the scene of the
fall. The record excerpts do not include any reference to the evidentiary
hearing on this issue, leaving us with little guidance as to the reasoning
behind the district court's decision. Notwithstanding, we find our decision
in Caparotta v. Entergy Corp.(5)
instructive. In Caparotta the district court allowed evidence of
missing documents to be admitted because it was relevant to Entergy's "credibility
and reliability." We reversed, finding it was an abuse of discretion to
permit evidence of the destruction of documents, stating: "Assuming that
some probative value did exist as to the issues in this case, such value
was minuscule. Contrastingly, the danger of unfair prejudice and confusion
of the issues was substantial."(6) The district
court did not abuse its discretion in denying Reddin's request for an adverse
Reddin also disputes the district court's
refusal to allow testimony regarding subsequent remedial measures. The
Federal Rules of Evidence dictate that "evidence of ... subsequent measures
is not admissible to prove negligence or culpable conduct in connection
with the event."(7) The Rules also provide
an exception when a party offers such evidence "for another purpose, such
as proving ownership, control, or feasibility of precautionary measures,
if controverted, or impeachment."(8) Reddin
attempted to introduce evidence that Horseshoe employees taped off the
area where his accident occurred, claiming that such evidence impeached
testimony elicited by Horseshoe that guards walked and crawled the entire
floor and found no defect. Specifically, Reddin asserts that no scanning
of the area could have occurred if the area were taped off. Evidence of
the placement of warning signs or tape around an area with an alleged defect
constitutes exactly the type of evidence contemplated by Rule 407. While
its introduction may have touched tangentially on the credibility of testimony
that security guards traversed the area, such does not establish that its
exclusion by the trial judge constituted an abuse of discretion.(9)
Third, Reddin asserts that the trial court
abused its discretion in denying his motion seeking to exclude evidence
of injuries he sustained after the May 1995 incident. Specifically, Reddin
challenges the introduction of evidence regarding a 1997 bus accident which
he asserts occurred after his six knee surgeries and total knee replacement.
The record before us does not reflect that he timely objected. As we have
noted, "an overruled motion in limine does not preserve error on appeal."(10)
We therefore review the court's evidentiary ruling for plain error,(11)
reversing only for obvious and substantial errors that "'seriously affect
the fairness, integrity, or public reputation of judicial proceedings.'"(12)
Reddin has failed to meet his burden on this
issue. Our review of the record discloses no plain error in the admission
of evidence relating to the subsequent injuries.
Reddin also urges error in the court's granting
of Horseshoe's motion to exclude evidence of a subsequent fall, by a different
patron, in the area where the incident occurred. In order for such evidence
to be admissible the party offering same bears the burden of demonstrating
that "the accidents involved substantially similar circumstances."(13)
We find no record evidence revealing an attempt to establish the similarity
between the two incidents, or even a proffer regarding a subsequent fall.
The trial court was acting within its discretion in excluding such evidence
as unduly prejudicial under Rule 403.
Finally, Reddin disputes the trial court's
refusal to allow him to call a rebuttal witness for the purpose of impeaching
an EMT who treated him. He maintains that the EMT denied making statements
indicating that the carpet on the gang plank was "pulled up" and that Horseshoe
should settle because they knew they were liable. Reddin claims his witness
was "prepared to impeach" the EMT. Determining the proper scope of rebuttal
is within the sound discretion of the trial judge.(14)
There is nothing in the record to support the proposition that the trial
court abused its discretion in refusing to allow this hearsay on rebuttal,
or that such refusal affected Reddin's substantial rights. The impeachment
value of such hearsay evidence was slight because "the statement could
not be used to prove the truth of its substance, but only to destroy the
credibility of the witness."(15) Therefore,
even if evidence impeaching the credibility of the EMT was wrongly excluded,
such exclusion was harmless, particularly when viewed in the context of
all the other evidence.(16)
Reddin has not shown that the trial court
abused its discretion in granting a new trial or in its evidentiary rulings
during the second trial.
1. Carson v. Polley,
et al., 689 F.2d 562, 570 (5th Cir. 1982) (citing Reeves v. General
Foods Corp., 682 F.2d 515, 519 n.6 (5th Cir. 1982); Shows v. Jamison
Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982); Conway v. Chemical
Leaman Tank Lines, Inc., 610 F.2d 360, 362 (5th Cir. 1980)).
2. United States v.
Sharpe, 193 F.3d 852, 867 (5th Cir. 1999).
3. Bickerstaff v. South
Central Bell Tel. Co., 676 F.2d 163, 169 (5th Cir.1982) (citing Fed.R.Civ.P.
61; 28 U.S.C. § 2111).
4. Adams v. Johns-Manville
Sales Corp., 783 F.2d 589, 592 (5th Cir. 1986) (citing Fed.R.App.P.
10(b)(2)). Fed.R.App.P. 10(b)(2) provides: If the appellant intends to
urge on appeal that a finding or conclusion is unsupported by the evidence
or is contrary to the evidence, the appellant shall include in the record
a transcript of all evidence relevant to such finding or conclusion.
5. 168 F.3d 754 (5th Cir.
6. Id. at 758.
7. Fed. R. Evid. 407.
8. Fed. R. Evid. 407; See
also Hardy, 870 F.2d at 1010 (discussing Rule 407 in the
context of subsequent changes to a meat slicer).
9. Reddin's brief contains
no discussion of any time frame regarding the posting of such warnings
or tape. It may be that security guards checked the area before the signs
were put up, or that Horseshoe taped off a significantly larger area to
allow for checking of the specific area of the fall. Without specific details
regarding why such evidence would constitute impeachment, the record contains
no basis for a challenge to the decision of the trial judge.
10. Rojas v. Richardson,
703 F.2d 186, 189 (5th Cir.1983); See also Wilson v. Waggener,
837 F.2d 220, 222 (5th Cir.1988) ("A party whose motion in limine is overruled
must renew his objection when the evidence is about to be introduced at
11. Marceaux v. Conoco,
Inc., 124 F.3d 730, 733 (5th Cir. 1997); Fed.R.Evid. 103(d).
12. Highlands Ins.
Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir.1994)
(quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
13. Rodriguez v. Crown
Equipment Corp., 923 F.2d 416, 418 (5th Cir. 1991); See also
Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 397 (5th Cir.1972).
14. Tramonte v.Fiberboard
Corp., 947 F.2d 762 (5th Cir. 1991).
15. Whitehurst v. Wright,
592 F.2d 834, 840 (5th Cir. 1979).
16. Bickerstaff v.
South Central Bell Telephone Co., 676 F.2d 163, 169 (5th Cir. 1982)
(viewing entire record and finding that any error in excluding the slight
impeachment of experts was harmless).