Evidence - Marc T. Treadwell

• Publication year: 1998

Evidence

Marc T. Treadwell^*

I. Introduction

Previous surveys have addressed the trend—or at least what the author perceives to be the trend—of the Eleventh Circuit Court of Appeals in recent years to defer more to district court judges' evidentiary decisions.¹ This trend can be contrasted with the activism displayed by Eleventh Circuit judges in decisions discussed in earlier survey articles.² However, the 1996 Eleventh Circuit decision in Joiner v. General Electric Co.³ bucked this trend and applied a very rigid level of scrutiny to a trial court decision to exclude expert testimony.⁴ During the current survey period,⁵ the Supreme Court reversed Joiner because of its heightened level of scrutiny.⁶ It would seem that the Supreme Court has sent a clear message that the abuse of discretion standard of review governing evidentiary issues truly requires an "abuse" of discretion.

II. Article 1: General Provisions

Rule 103 of the Federal Rules of Evidence ("Rule 103") requires a party to timely object to rulings on evidence and, if the ruling excludes evidence, make an appropriate offer of proof.⁷ During the survey period, the Eleventh Circuit twice reaffirmed that an unsuccessful motion in limine does not preserve an objection for purposes of a later appeal.⁸ Thus, a party must still timely object at trial to the admission of the evidence. Under certain circumstances, however, a motion in limine may preserve an error for appellate review. The Eleventh Circuit found these circumstances in Judd v. Rodman.⁹ In Judd plaintiff claimed that defendant wrongfully transmitted genital herpes to her. The trial court denied plaintiff's motion in limine to exclude evidence of her prior sexual history. Knowing that defendant would tender this evidence, plaintiff introduced the evidence herself.¹⁰ Clearly, plaintiff was attempting to minimize the prejudicial effect of the evidence. The Eleventh Circuit concluded that "this constituted valid trial strategy and, as a result, . . . Judd did not waive her objection."¹¹

If a party does not timely and properly object, an appellate court will reverse a trial court's evidentiary rulings only if the trial court committed "plain error."¹² In United States v. Quinn,¹³ the prosecution contended that the plain error standard should govern defendant's appeal from the district court's evidentiary rulings because defendant failed to make an offer of proof.¹⁴ However, the Eleventh Circuit noted that Rule 103(a)(2) does not necessarily require a formal offer of proof to preserve an objection.¹⁵ "Where the substance of the evidence is apparent to the court from its context, an appellant is entitled to ordinary appellate review of a ruling excluding evidence."¹⁶ The Eleventh Circuit concluded that the substance of the disputed evidence was apparent to the district court, and thus an offer of proof was not necessary.¹⁷

III. Article II: Judicial Notice

The Eleventh Circuit decision in Shahar v. Bowers¹⁸ addressed a rather unusual, and high profile, attempt to apply the doctrine of judicial notice. Shahar claimed that Georgia Attorney General Michael Bowers improperly withdrew an offer of employment after he learned of Shahar's lesbian "marriage."¹⁹ On May 30, 1997, the Eleventh Circuit rendered its en banc decision affirming the judgment entered against Shahar.²⁰ Shortly thereafter, news media accounts reported that Bowers had admitted to having an adulterous affair with a Law Department employee. Shahar then petitioned the Eleventh Circuit for rehearing and moved to supplement the record with evidence of Bowers's affair. Specifically, she asked the Eleventh Circuit to take judicial notice of the media reports.²¹ For various reasons, the Eleventh Circuit denied Shahar's motion.²² With regard to Shahar's request that the court take judicial notice of the media reports, the majority en banc opinion denying the motion for rehearing noted that the "taking of judicial notice of facts is, as a matter of evidence law, a highly limited process."²³ Shahar, the majority reasoned, had asked the court to take judicial notice of Bowers's private, as opposed to his official, conduct. Shahar "has shown us no case—and we have found none—where a federal court of appeals took judicial notice of the unofficial conduct of one person based upon newspaper accounts (or the person's campaign committee's press release) about that conduct."²⁴ Shahar did not ask the court to take judicial notice of the fact that the media reported Bowers had an affair or even that a Bowers press release said that Bowers had an affair. Rather, Shahar was asking the court to take judicial notice that Bowers had had an affair. The Eleventh Circuit was "not inclined to extend the doctrine of judicial notice as far as [Shahar] asks us to take it."²⁵

Judges Birch, Barkett, and Godbold dissented. In their dissenting opinion, they characterized the facts much differently than the majority and concluded that judicial notice was "obviously appropriate."²⁶ First,

"Bowers['s] public statement" as the dissent put it, was relevant to whether Bowers's professed concern over public perception of sexual misconduct in the Department of Law was a bona fide reason for withdrawing his job offer to Shahar.²⁷ Further, Bowers's affair was relevant to whether he acted "as a nondiscriminatory decision maker."²⁸ The dissent sharply disputed the majority's conclusion that Shahar had asked the court to take judicial notice of a newspaper account. Rather, she wanted the court to take judicial notice of what the dissent said was a statement by Bowers admitting the affair and asking public forgiveness.²⁹

The Eleventh Circuit applied the doctrine of judicial notice a little more freely in Harris v. H & W Contracting Co.³⁰ In Harris plaintiff claimed that defendant discriminated against her on the basis of her Graves' disease and thus violated the Americans With Disabilities Act ("ADA").³¹ The district court concluded that plaintiff could not show that she had a disability within the meaning of the ADA and thus granted defendant's motion for summary judgment. The central issue on appeal was whether plaintiff's disability from her Graves' disease, which was transitory and could be totally controlled with the proper medication, constituted an impairment that substantially limited one or more of her major life activities. Because plaintiff's symptoms were transitory, defendant argued, her Graves' disease did not substantially limit her life activities.³² The Eleventh Circuit first held that the question of whether an impairment limits major life activities must be decided without regard to mitigating measures such as medicines.³³ Defendant argued that the district court nevertheless properly granted summary judgment because plaintiff failed to adduce evidence that, absent medication, her condition would limit her major activities.³⁴ The Eleventh Circuit rejected this argument as well, in part based upon judicial notice of medical texts discussing Graves' disease.³⁵ The court then examined plaintiff's deposition testimony concerning her condition and concluded that this was sufficient to create an issue of fact as to whether plaintiff's condition would substantially limit her life activities if left untreated.³⁶

The opinion is perhaps more interesting for what it does not say rather than for what it does say. Clearly, plaintiff should have adduced expert evidence tending to establish that she suffered from Graves' disease and that unless medicated her condition would be disabling. The Eleventh Circuit, however, rescued plaintiff from her dilemma by effectively constructing expert testimony from judicially noticed scientific facts and lay testimony.³⁷

IV. Article III: Presumptions

In Bashir v. Amtrak,³⁸ the estate of a pedestrian killed after being struck by a train brought a wrongful death action against the railroad. The railroad argued that plaintiff's claim was preempted by the Federal Railroad Safety Act of 1970³⁹ because the train was traveling less than the eighty-miles-per-hour speed limit established by federal law. The district court granted defendant's motion for summary judgment because the undisputed evidence established that the train was traveling seventy miles per hour. On appeal plaintiff claimed that because the train's speed recorder tape could not be found, the district court should have applied the adverse inference rule and found that an issue of fact existed as to whether the train was speeding. The district court acknowledged that an adverse inference may be drawn from a party's failure to preserve evidence.⁴⁰ However, in the Eleventh Circuit, this inference can be applied only when the evidence is unavailable because of a party's bad faith.⁴¹ Thus, the court of appeals would not "infer that the missing speed tape contained evidence unfavorable to appellees unless the circumstances surrounding the tape's absence indicate bad faith, such as tampering with the evidence."⁴²

Instead, the Eleventh Circuit carefully examined the evidence and concluded that "under the particular circumstances" of this case, the district court properly did not draw an adverse inference from the missing tape.⁴³ First, the court noted that the train crewmen, none of whom had control over the tape, all testified that the train was traveling no more than seventy miles per hour,⁴⁴ even when the tape was not missing. The Eleventh Circuit thought it unlikely that the crewmen would lie about the speed of the train when they knew the tape was available and would reveal the true speed of the train.⁴⁵ Although not discussed by the Eleventh Circuit, it would seem just as likely that the tape was destroyed because it did not support the crewmen's testimony that the train was only going seventy miles per hour. The Eleventh Circuit acknowledged, and seemed a little concerned by, the fact that the absence of the tape was wholly unexplained.⁴⁶ There was no evidence, for example, that...