First Circuit: "If A Picture Speaks A Thousand Words, This One Spoke Plenty"

In Jones Act maritime negligence action, admitting staged photo by plaintiff's expert on workplace safety and seaworthiness, of "a seaman inching his way along a tiny hatch ledge with no guardrails while lugging a wire-an unacceptable practice," as relevant under FRE 401 to showing support for his opinion that the defendant "turned a blind eye to and [had a] ... cavalier attitude toward safety," failing "to provide a safe deck for work on the high seas" that the Jones Act required, in Bielunas v. F/V Misty Dawn, Inc., __ F.3d __ (1st Cir. Oct. 8, 2010) (No. 09-2048)

Admitting staged photos at trial seems more complicated than seeking the admission of photos of the actual events that are at the roots of a litigation. Yet a staged photo may often be all that is available. In a recent case, the First Circuit noted some of the considerations necessary to determining the admission of a staged photo.

In the case, Plaintiff Bielunas was a commercial fisherman working for defendant Misty Dawn on its vessels. According to the circuit, "[s]afety was hardly the watchword for Misty Dawn's conduct. The company made no real effort to ensure that its employees complied with accepted safety standards." As a result, the plaintiff had his foot crushed while standing on a moving hatch cover and lost his balance. At the time of the accident he was not traveling along the hatch ledge or walkways, which would have been safe, but the plaintiff contended that the accident was a result of the ship's negligence in failing to provide a safe deck or safe work methods.

In suing the defendant under the Jones Act, the plaintiff sought to introduce at trial a photograph used by the plaintiff's expert on ship safety. In the "staged photo (apparently taken by a defense expert) of a deckhand holding a wire and sidling along a nine-inch hatch ledge, as the SEA WATCHER's crew frequently would. Misty Dawn argues here, as it did below, that the exhibit is irrelevant because Bielunas was injured while standing on the moving hatch cover-not while traveling along the hatch ledge holding a wire." Bielunas, __ F.3d at __.

The circuit rejected the defendant's argument that the picture should not have been admitted at trial. First, the circuit indicated that there was no error in admitting the photograph as relevant under FRE 401. Admission of the photo as relevant was "a quintessential judgment call" and as a result, the circuit gives the trial judge "considerable leeway in deciding whether the contested evidence satisfies this not-too-difficult-to-meet standard" of relevance under FRE 401 (relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence” more or less probable; to be relevant, the evidence need not definitively resolve a key issue in the case" but "only move the inquiry forward to some degree". (citations omitted).

The circuit explained why the photo was relevant by assessing the issues involved in the case as well as the proffered evidence:

"Relevancy is not assessed in a vacuum-it is gauged 'in light of the underlying substantive law,' see Roy v. The Austin Co., 194 F.3d 840, 843 (7th Cir. 1999), here, Jones Act negligence and ship unseaworthiness. A Jones Act shipowner must see 'to the safety of the crew.' Koehler v. Presque-Isle Transp. Co., 141 F.2d 490, 491 (2d Cir. 1944) (Frank, J.). A crew member's burden of proving causation is 'featherweight,' meaning liability exists if the shipowner's 'negligence contributed even in the slightest' to the injury. Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 453 (1st Cir. 1996) (quotation marks omitted). Also, a shipowner must keep the ship-its decks, passageways, equipment, etc.-in a seaworthy condition and must use safe work methods, too. See id. And a shipowner is responsible for unseaworthiness-induced injuries even if not negligent. See id.

"If a picture speaks a thousand words, this one spoke plenty, giving context so the jury could better understand the parties' actions. Again, the photo showed a seaman inching his way along a tiny hatch ledge with no guardrails while lugging a wire-an unacceptable practice, Bielunas's expert said, which Misty Dawn turned a blind eye to and which highlighted Misty Dawn's cavalier attitude toward safety. The photo also showed a ship with blocked walkways, which further bolstered Bielunas's theory that Misty Dawn failed to provide a safe deck for work on the high seas. Misty Dawn talked a good game about how crew safety was a top concern, but the photo suggested otherwise. Seen in this light, then, the photo tended to make Misty Dawn's negligence and the ship's unseaworthiness more probable, see generally DeGioia v. United States Lines Co., 304 F.2d 421, 423 (2d Cir. 1962) (holding that a cluttered deck constitutes Jones Act negligence and vessel unseaworthiness); Bonnewell v. United States, 170 F.2d 411, 412-13 (4th Cir. 1948) (same) - which is all the liberal relevancy standard requires, see, e.g., Iacobucci v. Boulter, 193 F.3d 14, 20 (1st Cir. 1999). Consequently, the district judge did not abuse his broad discretion in admitting plaintiff's exhibit 32 [the staged photo]."
Bielunas, __ F.3d at __.

The photo and expert's opinion of the open hatch were relevant despite the fact that the photo differed from some conditions at the time of the accident (e.g., plaintiff was not hurt while sliding on the hatch ledge and only one and not several hatches were open at the time of the accident) because "this evidence gave the jury a proper frame of reference for assessing the parties' competing claims" (that defendant was negligent in workplace safety or plaintiff reckless in his work on the ship), "so it is relevant." While it was true that there were some differences between the situation shown in the photo and that which existed at the time of the accident, the circuit explained that this "go[es] to the weight, not the admissibility" or relevance of the evidence, as long as it "move[s] the inquiry forward to some degree." Bielunas, __ F.3d at __.

Federal Rules of Evidence