In personal injury suit by employee for damages suffered in collision at a railroad crossing where the plaintiff was laboring, the probative value of videos relevant to the “hotly disputed” issue of the plaintiff’s postaccident quality of life, which including his spending time in casinos, was not outweighed by the danger of unfair prejudice at the hands of hypothetical puritanical jurors, in Baker v. Canadian National/Illinois Central R.R., 536 F.3d 357 (5th Cir. July 16, 2008) (No. 06-60138)
FRE 403 requires a weighing of “unfair prejudice” of proffered evidence. Mere prejudice is not enough. See, e.g., United States v. Caver, 470 F.3d 220, 240 (6th Cir. 2006) (“Here, Defendants contend that the prejudicial effect of the letters substantially outweighed their probative value. We note that ‘[u]nfair prejudice does not mean the damage to a defendant’s case that results from the legitimate probative force of the evidence; rather it refers to the evidence which tends to suggest [a] decision on an improper basis.’”) (citing United States v. Newsom, 452 F.3d 593, 603 (6th Cir. 2006).
In a case involving the introduction of surveillance videos, the Fifth Circuit also considered the distinction between mere prejudice and undue prejudice under FRE 403. In the case, Defendant Illinois Central Railroad hired a contractor to remove vegetation and obstructions from a right of way at a railroad crossing. Plaintiff Baker worked for the contractor as a dump truck driver. While removing debris, he was injured in a collision with one of the defendant’s trains. He sued the defendant for negligence in failing to provide a flagman at the crossing work site and for failing to have lights or gates at the crossing. He also claimed the defendant breached a duty under the Roadway Worker Protection Rules (RWPR) “to provide a flagman, watchman, or other protection.” Baker,, 536 F.3d at 361.
During the trial in the case on the issue of damages, the court admitted “surveillance videos show[ing] Baker engaging in a variety of daily chores, driving, spending full days at crowded casinos, and making routine transactions at banks, grocery stores, and insurance agencies.”Baker,, 536 F.3d at 368). The jury returned a verdict for the defendant railroad. The plaintiff appealed. The circuit affirmed the admission of the tapes, concluding they were relevant and not unfairly prejudicial under FRE 403.
The tapes were relevant to the plaintiff’s post-accident condition and served to impeach evidence by the plaintiff of a disabling mental and physical condition, “including simple tasks, such as making change and counting money” or having “difficulty dealing with crowds, and need[ing] to live in an assisted living facility.” Baker,, 536 F.3d at 369.
Nor was this video more prejudicial than probative. The plaintiff feared that “the surveillance footage show[ed] him spending long periods of time in casinos” and he feared that the video “informed jurors that he engaged in activities many people consider immoral.” Baker,, 536 F.3d at 369. The circuit dismissed this contention because FRE 403 did not bar evidence “merely adverse to the opposing party.” Baker,, 536 F.3d at 369 (citing Brazos River Auth. v. GE Ionics, 469 F.3d 416, 427 (5th Cir. 2006) (“‘Unfair prejudice’ as used in rule 403 is not to be equated with testimony that is merely adverse to the opposing party. Virtually all evidence is prejudicial; otherwise it would not be material. The prejudice must be ‘unfair.’”) (citation omitted))
FRE 403’s “major function,” noted the circuit, was “limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” Baker,, 536 F.3d at 369 (quoting United States v. McRae, 593 F.2d 700, 708 (5th Cir. 1979) (no error in admitting evidence of defendant’s relations with other women a mere two months after his wife’s death was not unfairly prejudicial in light of his emphasis on his desolation at his wife’s death and his devotion to her)).
Because the plaintiff’s “post-accident quality of life was hotly disputed, and Baker’s witnesses testified in detail regarding the allegedly severe post-accident limitations Baker faces, including the inability to count money, make change, or be in crowds,” the circuit concluded that the video’s probative value of his casinos visits “contradict[ed] these statements” and that this “weighs heavily against a hypothetical juror’s moral aversion to gambling.” Baker,, 536 F.3d at 369.
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