4:15-5:00 p.m.
T.C.A. 55-10-114. Public inspection of reports relating to accidents.
(a) All accident reports
made by any person or by garages shall be without prejudice to the individual
so reporting, and shall be for the confidential use of the department or other
state agencies having use of the records for accident prevention purposes, or
for the administration of the laws of this state relating to the deposit of
security and proof of financial responsibility by persons driving or the owners
of motor vehicles, except that the department may disclose the identity of a
person involved in an accident when the identity is not otherwise known or when
the person denies having been present at the accident.
(b) No reports or
information mentioned in this section shall be used as evidence in any trial,
civil or criminal, arising out of an accident, except that the department shall
furnish upon demand of any party to the trial, or upon demand of any court, a
certificate showing that a specified accident report has or has not been made
to the department in compliance with law.
T.C.A. 55-10-113. Garages to report.
The person in charge of any garage
or repair shop, to which is brought any motor vehicle that shows evidence of
having been involved in an accident of which report must be made as provided in
§ 55-10-107, or of having been struck by any bullet, shall report to the
department within twenty-four (24) hours after the motor vehicle is received,
giving the engine number, registration number, and the name and address of the
owner or operator of the vehicle.
Tennessee Rule of Evidence 403. Exclusion of relevant
evidence on grounds of prejudice, confusion, or waste of time.
Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
Federal Rule of Evidence 403. Excluding Relevant Evidence for
Prejudice, Confusion, Waste of Time, or Other Reasons.
The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.
Tennessee Rule of Evidence 803. Hearsay
exceptions.
(8) Public Records and
Reports. Unless the source of
information or the method or circumstances of preparation indicate lack of
trustworthiness, records, reports, statements, or data compilations in any form
of public offices or agencies setting forth the activities of the office or
agency or matters observed pursuant to a duty imposed by law as to which
matters there was a duty to report, excluding, however, matters observed by
police officers and other law enforcement personnel. [As amended by order
entered January 25, 1991, effective July 1, 1991.]
Advisory
Commission Comments:
The
rule admits records of public officials acting under an official duty to report
accurately. This is the traditional official records hearsay exception. Tenn.
R. Civ. P. 44 [repealed]; Tenn.
Code Ann. §§ 24-6-105 -- 107.
Police
reports are expressly excluded, just as they are under current law in some
instances. See McBee
v. Williams, 56 Tenn. App. 232, 405 S.W.2d 668 (1966), construing Tenn.
Code Ann. § 55-10-114(b) to exclude accident reports. See also Tenn.
Code Ann. § 55-12-108(b), excluding Department of Safety determinations of
fault in automobile accidents.
[Deleted
in 1993: As to other statutory modifications and decisional embellishments,
see Tennessee Law of Evidence §§ 82-86.]
The
Commission borrowed language from subsections (A) and (B) of F.R.Evid.
803(8), but it expressly rejected federal subsection (C) on factual
findings from investigations. The term "activities" in proposed subsection
(A) is limited to the internal operations of a public office, making this
category of official records much like business records of a private
organization. The introductory language cautions that sources of information
must be trustworthy.
Federal Rule of Evidence 803. Exceptions to the Rule Against Hearsay--
Regardless of Whether the Declarant Is Available as a Witness
(8) Public Records. A record
or statement of a public office if:
(A) it sets
out:
(i)
the office's activities;
(ii) a
matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or
(iii) in a
civil case or against the government in a criminal case, factual findings from
a legally authorized investigation; and
(B) neither
the source of information nor other circumstances indicate a lack of
trustworthiness.
(9) Public Records of
Vital Statistics. A record of a birth, death, or marriage, if reported to
a public office in accordance with a legal duty.
(10) Absence of a Public
Record. Testimony--or a certification under Rule 902--that a diligent
search failed to disclose a public record or statement if:
(A) the
testimony or certification is admitted to prove that
(i)
the record or statement does not exist; or
(ii) a
matter did not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind; and
(B) in a
criminal case, a prosecutor who intends to offer a certification provides
written notice of that intent at least 14 days before trial, and the defendant
does not object in writing within 7 days of receiving the notice--unless the
court sets a different time for the notice or the objection.
Youngblood v. Solomon, 1996 Tenn. App.
LEXIS 352
Court
of Appeals of Tennessee
June
11, 1996, FILED
C.A.
NO. 03A01-9601-CV-00037
Reporter: 1996 Tenn. App. LEXIS 352 | 1996
WL 310015
DANITA D. and RODNEY YOUNGBLOOD, Plaintiffs-Appellees vs. KITTY REBECCA QUILLIAMS SOLOMON, Defendant-Appellant
DANITA D. and RODNEY YOUNGBLOOD, Plaintiffs-Appellees vs. KITTY REBECCA QUILLIAMS SOLOMON, Defendant-Appellant
Disposition: AFFIRMED IN PART, REVERSED IN PART AND
REMANDED
Counsel: PAUL CAMPBELL, III, Campbell and Campbell, Chattanooga, for Appellant.
HOYT O. SAMPLES, Samples, Jennings & Pineda, Chattanooga, for Appellees.
Judges: Don T. McMurray, J., CONCUR: Houston M. Goddard, Presiding Judge, William H. Inman, Sr. Judge
Counsel: PAUL CAMPBELL, III, Campbell and Campbell, Chattanooga, for Appellant.
HOYT O. SAMPLES, Samples, Jennings & Pineda, Chattanooga, for Appellees.
Judges: Don T. McMurray, J., CONCUR: Houston M. Goddard, Presiding Judge, William H. Inman, Sr. Judge
Opinion by: Don T. McMurray
Opinion
McMurray, J.
This action arises
from a typical intersection-traffic- light automobile accident. The case was
tried before a jury. The jury rendered a verdict finding the
defendant-appellant to be 100 percent at fault and established damages at $
4,000 for the plaintiff, Rodney Youngblood and $ 11,500.00 for the plaintiff,
Danita D. Youngblood. A counterclaim was dismissed. Judgment was entered on the
jury verdict and this appeal resulted. We affirm in part and reverse in part.
The appellant
presents numerous issues for our consideration. The main thrust of the first
three issues challenges the trial court's action in admitting into evidence the
front page of a copy of a police officer's report concerning the accident.
Appellant challenges the introduction of the document on three grounds:
(1) that the accident report was introduced into evidence contrary
to T.C.A. § 55-10-114; (2) that the report had been altered and was not
properly authenticated; and (3) that the report contained information
concerning the defendant's liability insurance carrier.
Obviously, each of
the three complaints relating to the accident report have merit. The
introduction of the police report is proscribed by T.C.A. §
55-10-114(b) which provides in pertinent part as follows:
(b)
No reports or information in this section shall be used as evidence in any
trial, civil or criminal, arising out of an accident, except that the department
shall furnish upon demand of any party to such trial, or upon demand of any
court, a certificate showing that a specified accident report has or has not
been made to the department in compliance with law.
There are no
exceptions in the statute for introduction of a report as evidence in any
manner and we are not inclined to create one. It has been held that an
officer's report may used for the purpose of refreshing the officer's
memory. See Lee v. Shipp, (Tenn. App. opinion filed September 11,
1985). See also Tennessee Rules of Evidence, Rule 803(5),
relating to refreshment of a witness' recollection. It would appear that
Rule 803(5) would make the police report admissible absent the statutory
prohibition. We are of the opinion, however, that the statutory prohibition
against admission must prevail. See Rule 101, Tennessee Rules of
Evidence and McBee v. Williams, 56 Tenn. App. 232, 405 S.W.2d 668
(Tenn. App. 1966). McBee expressly holds that the question of
admissibility of such [accident] reports is controlled by T.C.A. § 59-1014
[now T.C.A. § 55-10-114]. We agree with McBee and hold that
police reports prepared and filed pursuant to T.C.A. § 55-10-114 are
inadmissible as evidence and the admission of the of the
It is elementary
that authentication of evidence is a condition precedent to its
admissibility. See Rules 901 and 902, Tennessee Rules of Evidence. A
police report of an accident does not fall within the classification
of documents which are self-authenticating. In the case under consideration,
the report was introduced without authentication. The officer who prepared the
report was called as a witness by the plaintiffs. No attempt was made to
authenticate the report by the officer, rather, the report was introduced
simply at the request of plaintiffs' counsel.
The record
reflects that three copies of the police report were received by the court. The
first, (exhibit 21), which was admitted into evidence, appeared to be altered
from its original form in that it reflected the name of a person other than the
defendant as the driver's name. It also contained in the box for Ms.
Youngblood's address the notation "State Farm."
The second copy
tendered to the court was marked exhibit 22 I.D., and contained the same
information as exhibit 21 plus additional information written on the top of the
document relating to the defendant's insurance company and claims
representative. The third copy, marked as exhibit 23 I.D., appears to be an
unaltered copy of the original report.
Since exhibits 22
and 23 were marked, apparently for identification only, it would be reasonable
to believe that they were not made available for the jury's inspection. The
record, however, does not demonstrate clearly which copy, if any, was submitted
to the jury. There was a long colloquy between the attorneys and the trial
judge in chambers. The colloquy sheds little light on the question of which, if
either, of the reports the jury was allowed to view, but to the contrary adds
to the confusion regarding the question. It would appear from remarks of the
trial judge that at the time of the conference in chambers, the jury had not
yet been allowed to see either of the reports. Further, it appears that the
offending information alleged to have been written in the top margin of the
police report was excised. In any event, the information that appears in the
top margin of exhibit 22 does not appear in the top margin of exhibit 21. Since
exhibit 21 was admitted into evidence and exhibits 22 and 23 were marked for
I.D., we will presume that exhibit 21 was made available to the jury.
As noted above,
the introduction of the police report was error. Our next inquiry is whether
the error was harmless or reversible error. Rule 36, Tennessee Rules of
Appellate Procedure, provides as follows:
(b)
effect of error. -- A final judgment from which relief is available and
otherwise appropriate shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process.
It appears that
the introduction of the first page of the police report,
standing [7] alone, would neither have affected the judgment or
result in prejudice to the judicial process. The effect of introducing a police
report with information identifying the liability insurance companies of the
parties is another matter.
There is a general
rule in this state that evidence relating to the existence or non-existence of
liability insurance is not admissible. Woods
v. Meacham, 46 Tenn. App. 711, 333 S.W.2d 567 (1960). Deliberate
injection of the matter into the trial is ground for a reversal. Id. However,
where such evidence comes out inadvertently in the examination of a witness on
other subjects, the tendency is to allow the verdict to stand unless the record
shows that the evidence had some effect on the jury. See Finks v.
Gillum, 38 Tenn. App. 304, 273 S.W.2d 722 (1954); Seals v.
Sharp, 31 Tenn. App. 75, 212 S.W.2d 620 (1948).
In this case, we
are unable to determine from the record before us whether the jury had before
it evidence of the existence or non-existence of liability insurance. If we
were able to determine to a satisfactory degree that such proof was before the
jury coupled with the erroneous admission of the police report into evidence,
we would not hesitate to hold the errors to be reversible. In this
instance, however, we are left to speculate and this we are unable to do. We,
therefore, find that the appellant has failed to establish to the requisite
degree of probability that the issue relating to the erroneous introduction of
the police report is reversible error.
We will next turn
our attention to the issue which we consider to be dispositive of this appeal
as between the appellant and the appellee, Ms. Youngblood. The appellant
insists that there is an insufficient nexus between the injuries complained of
by Ms. Youngblood and the accident in question. Dr. Steven Tipps, whose
qualifications as an oral maxillofacial surgeon were stipulated, testified by
deposition on behalf of the plaintiff. He testified that he initially saw Ms.
Youngblood on February 25, 1992. At that time he found that "she had
bilateral temporomandibular joint pain at that time which was three years
duration." He performed surgery on her on March 10th, 1992, which he
considered successful. His last contact with Ms. Youngblood prior to the accident
was in August, 1992. Dr. Tipps testified that in August 1992, he and Ms.
Youngblood discussed [9] redoing the surgery on the left side
of Ms. Youngblood's jaw. He further testified that he first saw Ms. Youngblood,
post-accident, on October 20, 1992, which was six days after the accident in
question. He noted a history that she had been in a motor vehicle accident in
which she struck her left jaw, and that she had an increase in her problems
associated with her left temporomandibular joint at that time.
The following questions were asked
of Dr. Tipps and the following answers given:
Q.
When Ms. Youngblood came back on August 20, 1992 to see you, what did you do
with her at that time."
A.
Well, other than the exam or following the exam, we discussed redoing the
arthroscopic surgery on the left side once again.
Q.
Was that surgery eventually done?
A.
That surgery was scheduled and done in November 1992.
* *
* *
Q.
Dr. Tipps, assuming the history of Mrs. Youngblood as has been presented to
you, I would like you to further assume this fact, that Mrs. Youngblood was
involved in a motor vehicle accident on October 14, 1992, during which she
struck her head.
Do
you have an opinion as to a reasonable degree of medical certainty as to
whether such [10] a motor vehicle accident more probably than
not aggravated the condition in her left TMJ joint?
A.
I would say so yes.
* *
* *
Q.
With the same assumptions and the same factors, do you have an opinion as to a
reasonable degree of medical certainty of whether the second TMJ surgery on
November 17, 1992 was more probably than not caused by this motor vehicle
accident?
* *
* *
A. Well in view of the fact that we had
previously discussed redoing arthroscopic surgery on that side, it may have
been going to be done whether she had the accident or not. But certainly, the
accident did not improve the situation.
While we recognize
that the "reasonable degree of medical certainty" test may now have
given way to the "more probable than not" test, we are of the opinion
that the above testimony meets neither. See Reel v.
Crawford, an unreported opinion from this court with a concurring
opinion by Judge Susano, filed August 1, 1994.
Our courts have
consistently required a reasonable degree of medical certainty from experts
before their opinions are admissible as evidence. For example, in Aetna
Casualty and Surety Co. v. Long,569 S.W.2d 444, 446 (Tenn. 1987), testimony
that the injury "could have been caused" was insufficiently
certain. Similarly in Knoxville Poultry and Egg Company v.
Robinson, 477 S.W.2d 515, 517 (Tenn. 1972), testimony that there was a
"possible" causal connection was also insufficiently certain.
We are of the
opinion that substituting "more probable than not" for
"reasonable degree of medical certainty" in the above quoted rule
would not alter its application in this case. Dr. Tipp's testimony that
"it [the operation] may have been going to be done whether she had the
accident or not. But certainly, the accident did not improve the
situation" is too speculative and uncertain to substantially assist the
jury in determining whether the accident necessitated the additional surgery.
We are of the opinion that the court's action in allowing the reception of
evidence relating to the subsequent surgery and the costs associated therewith
constitutes reversible error as between the defendant and Ms. Youngblood.
The appellant
further charges the trial court with error in refusing to give certain
requested jury charges relating to a party's duty at an intersection and
judging the credibility of a witness. We have examined the court's charge to
the jury and are satisfied that the jury was adequately charged and that the
appellant's requested charges were sufficiently covered. We find no merit in
these issues.
Considering the
record as a whole and all issues presented for review by the appellant, we are
of the opinion that the judgment as to Ms. Youngblood must be reversed and
remanded for a new trial. As to the judgment in favor of Mr. Youngblood, we
find no reversible error and that part of the judgment is affirmed.
In our discretion,
we assess the costs of this appeal equally between the appellant and the
appellee, Ms. Youngblood. This case is remanded to the trial court for such
other and further action that is required consistent with this opinion.
Leap v. Malone, 1996 U.S. App. LEXIS 33965
United
States Court of Appeals for the Sixth Circuit
December
23, 1996, FILED
No.
95-6470
Reporter: 1996 U.S. App. LEXIS 33965
CHRISTINA LEAP, Plaintiff-Appellant, v. PAUL MALONE and F&K LEASING, Defendants-Appellees.
CHRISTINA LEAP, Plaintiff-Appellant, v. PAUL MALONE and F&K LEASING, Defendants-Appellees.
Disposition: AFFIRMED.
Counsel: For CHRISTINA LEAP, Plaintiff - Appellant: Richard
L. Masters, Earl
C. Mullins, Jr., Masters,
Mullins & Arrington, Louisville, KY.
For PAUL E. MALONE, Defendant - Appellee: David F. Harrod, Carter, Harrod & Cunningham, Athens, TN. Clarence E. Walker, Chattanooga, TN. For ALLOY FABRICATORS INCORPORATED, Defendant - Appellee: David F. Harrod, (See above). Clarence E. Walker, (See above). For F&K LEASING INCORPORATED, Defendant - Appellee: David F. Harrod, (See above). Clarence E. Walker, (See above).
Judges: Before: NELSON and DAUGHTREY, Circuit Judges, and COHN, District Judge. *
Opinion by: DAVID A. NELSON
For PAUL E. MALONE, Defendant - Appellee: David F. Harrod, Carter, Harrod & Cunningham, Athens, TN. Clarence E. Walker, Chattanooga, TN. For ALLOY FABRICATORS INCORPORATED, Defendant - Appellee: David F. Harrod, (See above). Clarence E. Walker, (See above). For F&K LEASING INCORPORATED, Defendant - Appellee: David F. Harrod, (See above). Clarence E. Walker, (See above).
Judges: Before: NELSON and DAUGHTREY, Circuit Judges, and COHN, District Judge. *
Opinion by: DAVID A. NELSON
Opinion
DAVID A. NELSON,
Circuit Judge. This is a personal injury case, filed in federal court on
diversity grounds, in which the plaintiff appeals from a judgment entered on a verdict
in her favor for three quarters of a million dollars. The plaintiff takes issue
with (1) a directed verdict for the defendants on a claim for punitive damages,
(2) the denial of a motion for additur, and (3) certain evidentiary rulings.
Finding no error in any of the rulings in question, we shall affirm the
judgment.
I
On November 25,
1992, the plaintiff, college sophomore Christina Leap, was one of two
passengers in a Dodge automobile that her grandfather, Paul Sipple, was driving
on a state highway in McMinn County, Tennessee. Defendant Paul Malone, driving
a 65-foot tractor trailer rig in the opposite direction, started to make a left
turn directly in front of the oncoming Dodge. Mr. Malone either failed to see
the Dodge or badly misjudged its distance from him. The automobile crashed
head-on into the right rear wheels of the tractor. All of the occupants of the
car were badly injured, and the second passenger, Mrs. Sipple, eventually died
from her injuries.
Tennessee State
Trooper Ray Yarber, Jr., arrived at the scene soon after the
occurrence of the accident, and he called for assistance from Trooper Ken
Jones. The latter, an accident reconstruction expert, testified at trial that
Mr. Sipple had less than two seconds to react to Mr. Malone's turn.
Trooper Yarber
completed a Tennessee Uniform Accident Report form, checking boxes labeled
"reckless endangerment" and "failure to yield." A McMinn
County grand jury returned a "no bill" with respect to reckless
endangerment, and Mr. Malone was never prosecuted for that offense. Both of the
state troopers testified at trial that Mr. Malone had not been reckless, in
their opinion.
Miss Leap suffered
a severe closed head injury and internal bleeding of the brain. She remained in
a coma for about a month, and she underwent four major operations during the
course of her recovery. By the time of trial she had incurred medical expenses
of $ 246,677.83, and she had received physical therapy for three years. It had
been necessary for her to relearn her basic motor skills. With extensive
tutoring, she had been able to resume a limited college curriculum.
Miss Leap and Mr.
Sipple, on behalf of himself and as executor of Mrs. Sipple's estate, sued
Mr. Malone and his employer in federal district court. The Sipple claims were
settled prior to trial, and the defendants admitted liability for the damages
suffered by Miss Leap. Before Ms. Leap's case came on for trial the district
court (Collier, J.) granted motions in limine to exclude both the
Uniform Accident Report and evidence concerning Mrs. Sipple's death and Mr.
Sipple's injuries.
During the trial
Dr. Anthony Gamboa, testifying as a "vocational economics" expert,
offered an economic assessment of Miss Leap's pre- and post-accident abilities.
He projected a lifetime wage loss of between $ 906,000 and $ 1.4 million. The
former figure was described as "extraordinarily optimistic." The
latter figure, Dr. Gamboa testified, was what the wage loss would come to if
Miss Leap could never work again. Dr. Gamboa assumed that if the accident had
not occurred, Miss Leap could have earned an average of $ 36,744 per year for
31.9 years; he further assumed that she would now average no more than $ 19,834
per year for no more than 21 years.
At the close of
Miss Leap's case-in-chief the district court directed a verdict in favor of the
defendants on the issue of punitive damages. The jury ultimately assessed
Miss Leap's recoverable damages at $ 754,677.83. This figure represented the
sum of the following components: (1) $ 246,677.83 for past medical expenses;
(2) nothing for future medical expenses; (3) $ 275,000 for past pain and
suffering; (4) $ 133,000 for future pain and suffering; and (5) $ 100,000 for
loss of earning capacity. Miss Leap filed motions for a new trial, based on
allegedly erroneous evidentiary rulings, and for an additur, based on the
allegedly inadequate award for loss of earning capacity. The district court
denied both motions. Ms. Leap has perfected a timely appeal.
II
We turn first to the
issue of punitive damages, an issue governed in this case by Tennessee
law. Tennessee allows the recovery of punitive damages "only in the
most egregious of cases." Hodges
v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). The least
culpable mental state for which punitive damages may be awarded is
"reckless" -- and recklessness must be proved by clear and convincing
evidence. Id. The Hodges court held that a person acts
recklessly when he "is aware of, but consciously disregards, a substantial
and unjustifiable risk of such a nature that its disregard constitutes a
gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances." Id.
We believe the
district court acted properly in directing a verdict on the issue of punitive
damages. There is no evidence in the record, let alone clear and convincing
evidence, to suggest that Mr. Malone's conduct was the result of anything more
than inattention or a most unfortunate case of bad judgment. Trooper Jones --
the accident reconstruction expert -- testified that in his judgment Mr.
Malone's behavior had been "accidental," not reckless. Trooper
Yarber characterized Mr. Malone's decision to turn when he did as a
"mistake;" Yarber rejected a label of "reckless." In light
of all of the evidence presented in this case, we believe that a reasonable
mind could draw only one conclusion -- that there was no basis for a recovery
of punitive damages. The directed verdict was therefore proper. See Arms
v. State Farm Fire & Cas. Co., 731 F.2d 1245, 1248-49 (6th Cir. 1984) (citing Holmes
v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977)).
In Womack
v. Gettelfinger, 808 F.2d 446 (6th Cir. 1986), cert. denied, 484
U.S. 820, 98 L. Ed. 2d 41, 108 S. Ct. 78 (1987), this court reversed a
punitive damages award in another diversity case arising out of an
automobile-truck accident in Tennessee. We held there that the defendant truck
driver, who caused the collision by turning onto a highway in dense fog, had
not been guilty of such gross or wanton negligence as could justify an award of
punitive damages. "Poor judgment and lack of ordinary care," we
observed, ". . . [are] not the stuff of which . . . punitive damages
awards are made -- at least not in Tennessee." Id. at
453. The Tennessee Supreme Court's decision
in Hodges subsequently confirmed our understanding of Tennessee law,
and we see no basis for deciding the case at bar differently thanWomack v.
Gettelfinger.
III
Miss Leap argues
that the district court should have granted an additur to the jury's $ 100,000
award for loss of future wages. She notes that her expert, Dr. Gamboa, offered
the only evidence on the wage loss issue. Because Dr. Gamboa's testimony was
"unimpeached [and] uncontradicted," Miss Leap argues, the jury acted
irrationally in awarding a figure below the range proposed by Dr. Gamboa. We do
not find the argument persuasive.
The jury was
entitled to reject Dr. Gamboa's testimony entirely and to award no damages at
all for future loss of wages. Miss Leap admits as much. Her argument boils down
to the proposition that, having given some credence to Dr. Gamboa's testimony
(as demonstrated by the award of some damages for future lost wages), and in
the absence of alternative economic evidence, the jury had to accept the range
proposed by Dr. Gamboa.
Defense counsel
conducted an effective cross-examination of Dr. Gamboa, however, exposing
apparent weaknesses in his opinion. And the jury could reasonably have
concluded that the dismal picture of Miss Leap's future presented by Dr. Gamboa
was contradicted by other evidence. Miss Leap herself testified that she hoped
to become a physical therapist and had resumed -- albeit with tutorial
assistance -- a college curriculum. The jury might well have believed that Ms.
Leap would be able to work at full pay as a physical therapist, but that she
would lose some earnings because her career would begin later than it would
have done had there been no accident. This hypothesis is consistent with the
jury's election to award no damages for [9] future medical
expenses. We are satisfied that the district court did not abuse its discretion
in refusing to grant an additur.
IV
The Federal Rules
of Evidence govern diversity cases, see Laney
v. Celotex Corp., 901 F.2d 1319, 1320 (6th Cir. 1990), except where the
state rule of evidence is substantive in nature. See, e.g., CMI-Trading,
Inc. v. Quantum Air, Inc., 98 F.3d 887, 891 (6th Cir. 1996) (applying
state parol evidence rule in a diversity case).
A
As noted above, the district court
granted the defendants' motion in limine to exclude the Uniform
Accident Report completed by Trooper Yarber. Tennessee law expressly
prohibits the use of accident reports as evidence. Tenn.
Code Ann. § 55-10-114(b). If this statute is "substantive," it
must be applied in diversity cases. If the statute is merely
"procedural," on the other hand, the Federal Rules of Evidence must
be applied without regard to the statute.
The character of
the Tennessee statute need not be definitively resolved here, for we do not
believe that it was error to exclude the accident report under either
hypothesis. If the Tennessee statute governs, the statute clearly prohibits
introduction of the accident report. If the statute does not govern, Rule
403 of the Federal Rules of Evidence, the text of which is set forth in the
margin, amply supports the decision to exclude the report. The probative value of the
accident report was minimal, given the fact that the investigating officers
were available to testify. The unfair prejudice, on the other hand, was patent.
Mr. Malone was not prosecuted for reckless endangerment, a Tennessee grand jury
having decided not to indict him on this charge. Troopers Yarber and Jones
testified that, in their judgment, Mr. Malone had not been reckless. We assume
the plaintiff would have been permitted to explore any inconsistency between
this testimony and the report. The district court knew, however, that there was
no inconsistency -- for Trooper Yarber testified (outside the jury's presence)
that the reckless endangerment citation was issued due to the severity of the
accident, not as a result of Mr. Malone's conduct. We cannot say that the
district court abused its discretion in excluding the report.
B
Neither did the
district court abuse its discretion in granting the defendants' motion to
exclude evidence of Mrs. Sipple's death and Mr. Sipple's injuries after the
Sipple claims had been settled.
As the district
court noted, Miss Leap's claim for pain and suffering was extensively explored
through Ms. Leap's own testimony and the testimony of her mother and the
treating doctors. The relevance of the Sipples' fates to the pain and suffering
of Miss Leap was overshadowed by the unfair prejudice to which the defendants
would have been exposed if this evidence had been introduced after the Sipple
claims had dropped out of the case.
AFFIRMED.