Alexander M. McHale, et al. v. Crown Equipment Corporation

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14005
Non-Argument Calendar
____________________
ALEXANDER M. MCHALE,
ASHLEY N. MCHALE,
Plaintiffs-Appellants,
versus
CROWN EQUIPMENT CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-00707-VMC-SPF
____________________
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2 Opinion of the Court 21-14005
Before WILSON, G RANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Alexander McHale and his wife sued Crown Equipment
Corporation seeking damages for injuries he sustained while
operating a Crown RC 5500 forklift. After an eight-day jury trial,
judgement was entered in favor of Crown. The McHales now
challenges a number of the district court’s evidentiary rulings.
After careful review, we affirm.
I.
Alexander McHale was injured operating a Crown RC 5500
forklift at his job in an Amazon warehouse. Working the night
shift, McHale was driving faster than he should have been and
collided with a steel end cap at the end of an aisle of shelving. His
left foot was crushed between the steel and the forklift, and he
ultimately had his leg amputated below the knee. The parties
contest how McHale’s leg ended up outside of the operator
compartment. McHale contends that he lost his balance
attempting to brake. Crown’s evidence shows that McHale told
the first responder that he stuck his foot outside the compartment
to try to stop the forklift.
The McHales assert causes of action under Florida law for
strict products liability, negligence, punitive damages, and loss of
spousal consortium. The district court granted summary
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21-14005 Opinion of the Court 3
judgment denying the punitive damages claim, and the rest went
to a jury trial.
The Crown RC 5500 is a side-stance forklift, meaning that
the operator stands and maneuvers from side to side instead of
forward and back. The operator’s right side faces the forks and left
side faces an opening to allow for the operator to enter and exit.
There is no door. The brake function of an RC 5500 is the opposite
of an ordinary car brake. To drive, the operator presses down on
the brake. To slow down or stop, the operator lifts his left heel off
the brake.
At trial the McHales argued that the brake design and open
compartment made the RC 5500 unreasonably dangerous and that
Crown was negligent in ignoring past instances of operator injury.
Their first theory is that the brake design is defective because it can
result in the operator losing his balance as he attempts to brake in
an emergency. Crown contends that the forces generated when
braking are insufficient to cause the operator’s foot to leave the
compartment.
The McHales’ second theory is that a door would have
prevented his leg from exposure to the steel end cap. Crown’s
defense is that in designing the machine it must consider all
reasonably anticipated dangers, including the forklift tipping over
or falling off a loading dock. In these accidents, Crown says, a door
poses a potentially fatal risk to the operator by hindering the
operator from quickly exiting the forklift before it falls. Crown’s
evidence shows that tip-over and off-dock accidents are more
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4 Opinion of the Court 21-14005
common than serious lower left leg injuries from collisions. And
in those accidents, an operator is ten times more likely to be killed
by remaining in the compartment than by exiting.
At the close of evidence, the jury returned a verdict in favor
of Crown. The McHales brings this appeal with four challenges to
the district court’s evidentiary rulings.
II.
We review a district court’s rulings on the admission of
evidence for abuse of discretion.
Great Lakes Ins. SE v. Wave
Cruiser LLC, 36 F.4th 1346, 1353 (11th Cir. 2022). The abuse of
discretion standard allows a “range of choice for the district court,
so long as that choice does not constitute a clear error of judgment”
or is based on the wrong legal standard.
Cook ex rel. Estate of
Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1104 (11th Cir.
2005) (quotation omitted). Even a clearly erroneous evidentiary
ruling, however, will be affirmed if harmless.
Furcron v. Mail Ctrs.
Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016). We will reverse
only if the moving party demonstrates that the error “probably had
a substantial influence on the jury’s verdict.”
Burchfield v. CSX
Transp., Inc., 636 F.3d 1330, 1333 (11th Cir. 2011) (quotation
omitted).
III.
A.
First, the McHales challenge the district court’s admission of
videos of tests that Crown performed with the RC 5500. These
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21-14005 Opinion of the Court 5
videos simulate tip-over and off-dock accidents using crash
dummies, otherwise known as anthropomorphic testing devices
(ATD). At trial Crown used these videos to show the risks of
staying in the forklift during these accidents in support of its design
choice not to add a door. The McHales argue that the district court
applied the wrong legal standard. In their view, the videos should
be subject to the “substantial similarity test” because they depict
real world events rather than mere demonstrations of physical
principles.
The substantial similarity test applies to out-of-court
recreations of the accident at issue.
Burchfield, 636 F.3d at 1336.1
To avoid unfair prejudice and confusion of the issues, the test
requires that the recreation “be so nearly the same in substantial
particulars as to afford a fair comparison in respect to the particular
issue to which the test is directed.”
Id. at 1336–37 (quotation
omitted). The test does not apply where the evidence is “pointedly
dissimilar” from the event at issue and “not offered to reenact the
accident.”
Tran v. Toyota Motor Corp., 420 F.3d 1310, 1316 (11th
Cir. 2005) (quotation omitted).
1 We have also applied the doctrine “when one party seeks to admit prior
accidents or occurrences involving the opposing party, in order to show, for
example notice, magnitude of the danger involved, the party’s ability to
correct a known defect, the lack of safety for intended uses, strength of a
product, the standard of care, and causation.”
Heath v. Suzuki Motor Corp.,
126 F.3d 1391, 1396 (11th Cir. 1997) (alternation adopted; footnote and
quotation omitted).
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The substantial similarity test does not apply here because
the challenged videos are intentionally dissimilar to McHale’s
collision accident. In fact, the videos were offered for the very
reason that they depicted
different types of accidents.
The McHales’ reliance on
Burchfield is misplaced. The
plaintiff in
Burchfield was injured when a railcar rolled down a hill
it was parked on.
Burchfield, 636 F.3d at 1332. The plaintiff’s
products liability case centered on the theory that the brakes were
defective.
Id. The defendant relied on a pre-trial experiment
recreating the accident to demonstrate that the railcar’s brake was
not properly applied by the plaintiff.
Id. at 1333–35. The defense
repeatedly emphasized the purported similarities between the
recreation and the circumstances surrounding the plaintiff’s
accident.
Id. at 1335–36. In that situation, we reversed for a new
trial because the video unfairly prejudiced the jury by not being
performed under substantially similar conditions.
Id. at 1337–38.
These videos are different. The videos Crown showed to
the jury are not recreations of McHale’s accident. They are videos
of tests performed by Crown depicting accidents that are dissimilar
to McHale’s. And unlike in
Burchfield, Crown did not use the
videos to disprove McHale’s theory of causation. When a party
seeks to introduce evidence of pointedly dissimilar events that did
not purport to depict the accident at issue, the substantial similarity
test does not apply.
See Tran, 420 F.3d at 1316;
Heath v. Suzuki
Motor Corp., 126 F.3d 1391, 1396–97 (11th Cir. 1997). The district
court did not abuse its discretion when it admitted the test videos.
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Nor are we persuaded that the videos’ probative value is
substantially outweighed by the risk of unfair prejudice.
See Fed.
R. Evid. 403. The dissimilarity between these videos and McHale’s
accident diminishes the risk of unfair prejudice, confusion of the
issues, or misleading the jury. At the same time, they are probative
to Crown’s theory of defense by demonstrating the risks inherent
in a design that includes doors. We therefore affirm the district
court’s ruling on the McHales’ objection to the admission of the
ATD videos.
B.
Second, the McHales challenge the district court’s ruling
that Crown could impeach the McHales’ expert using an adverse
Daubert ruling of another court. On cross-examination, Crown
briefly questioned the McHales’ expert Dr. Meyer about a
Southern District of Illinois order excluding his testimony as an
expert witness giving substantially the same opinion. We are
sympathetic to the concerns presented when using another court’s
Daubert ruling to impeach an expert. The introduction of another
judge’s ruling risks undermining Rule 702’s directive to the trial
judge to be the gatekeeper of expert testimony.
See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). In making
Daubert rulings, district judges must perform an “exacting analysis
of the proffered expert’s methodology” that is a “necessarily fact-
laden endeavor.”
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd.,
326 F.3d 1333, 1341 (11th Cir. 2003) (quotation omitted);
Moore v.
Intuitive Surgical, Inc., 995 F.3d 839, 857 (11th Cir. 2021). To assess
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8 Opinion of the Court 21-14005
the basis of the other court’s ruling and its relation to the case at
bar, presenting a contrary
Daubert ruling risks creating a mini-trial
and confusing the issues.
Even so, it is unnecessary to decide whether the district
court abused its discretion because the McHales do not argue that
the error affected their substantial rights. By not “plainly and
prominently” presenting argument on appeal, the McHales
abandoned the issue.
Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014) (quotation omitted);
Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an
appellant fails to offer argument on an issue, that issue is
abandoned.”).
We have “discretion to overlook a failure to argue
harmlessness and to undertake
sua sponte the task of considering
harmlessness.”
Horsley v. Alabama, 45 F.3d 1486, 1492 n.10 (11th
Cir. 1995). Exercising that discretion here, we find that any error
committed by the district court in permitting the cross-
examination was harmless. The
Daubert ruling was not presented
directly to the jury. Instead, the district court permitted one
question on cross-examination. After Dr. Meyer denied any
awareness of the prior ruling, defendant’s counsel quickly moved
on to another topic.2 The exchange lasted less than one minute in
2 Here is the exchange in full:
Q: Dr. Meyer, isn’t it true that a judge in another Federal
Court has excluded you from offering the opinion that a stand-
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21-14005 Opinion of the Court 9
an eight-day trial and the issue was not revisited. It is hard to
imagine this exchange having any influence on the jury’s verdict.
We therefore affirm the District Court’s ruling.
C.
Third, the McHales challenge the district court’s exclusion
of testimony from two witnesses, Jose Hernandez and Dustin
Reinard, who were both injured in collision accidents similar to
McHale’s and unsuccessfully sued Crown. The McHales sought to
use their testimony to demonstrate that other operators have lost
their balance operating the RC 5500. Evidence of “prior similar
incidents illustrating a potential design defect are admissible if (1)
the proponent makes a showing that the prior accidents are
substantially similar, (2) the prior accidents are not too remote in
time, and (3) the probative value of the evidence outweighs any
potential prejudice or confusion.”
Crawford v. ITW Food Equip.
Grp., LLC, 977 F.3d 1331, 1350 (11th Cir. 2020). Focusing on the
third prong, the district court excluded the evidence to avoid
up forklift truck is defective because it was designed without a
door? Isn’t that true?
A: I’m unaware of that one way or another.
Q: You’re not aware of
Anderson v. Raymond?
A: I have no idea what the legal wrangling going on as far
as that goes is.
Q: Would you agree, Dr. Meyer, that Crown innovated
the entire forklift industry by turning its operators side stance
as opposed to facing the forks back in the early ‘70s?
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confusion of the issues from the resulting “mini-trial” that would
occur had their testimony been admitted. These witnesses’
testimony would have opened the door to disputes concerning the
facts of each of their incidents, their similarity to McHale’s
accident, and the outcome of their respective litigations. At the
same time, the testimony’s probative value was minimal. The
excluded witnesses had no personal knowledge of McHale’s
accident and Crown’s Director of Product Safety admitted at trial
to being aware of other litigants who informed them of balance
issues on the RC 5500. The jury was well aware of Crown’s
knowledge of prior incidents with the RC 5500. The district court
did not abuse its discretion in excluding the testimony of
Hernandez and Reinard. We affirm.
D.
The McHales’ last challenge is to the district court’s separate
rulings on two videos depicting off-dock forklift accidents. Under
Rule 901, videos are not admissible at trial unless the proponent
submits “evidence sufficient to support a finding that the item is
what the proponent claims it is.” Fed. R. Evid. 901(a);
United States
v. Caldwell, 776 F.2d 989, 1001 (11th Cir. 1985). “The decision of
whether or not a particular piece of evidence has been
appropriately identified falls within the discretionary function of
the district court, and that determination will not be disturbed on
appeal absent a showing that there is no competent evidence in the
record to support it.”
Caldwell, 776 F.2d at 1001 (quotation
omitted).
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The district court first excluded a YouTube video of a forklift
operator remaining in a Crown forklift falling off a dock without
being injured. The McHales sought to show the video to the jury
as part of their expert’s testimony rebutting Crown’s contention
that doors would make the forklifts dangerous in an off-dock
accident. The video purports to be an “actual off-dock event
captured on video.” As attempted foundation, McHale’s expert
testified to what the video showed and that it is consistent with
how he believed the forklift would fall in an off-dock event. There
is no evidence of when the video was originally recorded, what
device made the recording, or any witness testimony to the
accuracy of the accident or whether the video had been altered. All
we know is that the video was pulled from YouTube. With no
competent evidence on the record authenticating the video, the
district court did not abuse its discretion in excluding the video.
The second challenged ruling admitted Crown’s video
showing an operator safely stepping out of a forklift during an off-
dock accident. The foundation laid for this video does not
meaningfully differ from the YouTube video the district court
excluded. Crown’s Director of Public Safety was the only witness
to testify to the video’s authenticity. He testified that he received
it from the legal department and did not know where or when the
video was filmed. As with the YouTube video, there was no
competent evidence to support the authenticity of the video to be
admitted under Rule 901. The district court thus abused its
discretion when it admitted the video.
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We nonetheless affirm because the error was harmless. The
McHales do not even contend that the admission of this video
alone is prejudicial. Instead, they argue that the admission of one
video, but not the other, when compounded with the other
claimed errors, denied them a fair trial. We recognize that the
practical effect of the district court’s error was to present a video
supporting the defendant’s theory while excluding a video
supporting plaintiffs’ theory. But the district court’s error in
admitting the Crown video does not entitle the McHales to a
“make-up call.” Because the McHales have not shown that the
admission of Crown’s video probably had a substantial effect on
the outcome of the trial, the error was harmless.
* * *
We AFFIRM the judgment of the United States District
Court for the Middle District of Florida.
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