Substantial Similarity Requirement Of Third Party's Video Evidence

In industrial injury accident trial against a railroad-car supplier, trial court erred in admitting defense-proffered video that had been made for use in a government industrial safety agency accident investigation by a consulting railroad expert for the non-party business that operated the plant where the accident occurred; proponent failed to show that the video displayed conditions substantially similar to those surrounding the accident; consequently, the video was not admissible as an illustration of general scientific principles involved in the case, but offered as a reenactment of disputed events in the accident and bore no substantial similarity to conditions at the time of the accident; since the error was not harmless, the verdict for the defendant was reversed and the case was remanded for retrial, in Burchfield v. CSX Transp., Inc., __ F.3d __ (11th Cir. March 30, 2011) (No. 09–15417) (per curiam)

In an earlier blog post, we noted that "[s]ometimes expert testimony is proffered in an attempt to recreate the conditions of a device at the time of its alleged malfunction; at other times it is proffered in an attempt to demonstrate general scientific principles -- but how does one distinguish these?" In a recent case, the Eleventh Circuit noted and applied its standard for answering this question.

In the case, plaintiff Burchfield sued CSX seeking "damages for injuries that he sustained in being run over by a railcar CSX delivered to his employer," a third party cereal processing plant. The plaintiff sought from the defendant general and special damages and punitive damages under theories of negligence and negligence per se. The plaintiff claimed that he had "applied the hand brake on the AEX 7136 [rail car] but it was inefficient and failed to hold the railcar in place." At the jury trial of the matter the defendant introduced, over plaintiff's objection, a video made for the third party "for purposes of an Occupational Safety and Health Administration investigation of [the] accident. The video had no sound. It purported to show the AEX 7136 railcar involved in [the] accident at two different locations" at the plant where the accident occurred. At both locations, the video "depicted the railcar with an activated hand brake" and that the brake held for over 20 minutes. The video also purported to show seven other instances in which the AEX 7136's hand brake was applied and released." Butterfield, __ F.3d at __. Ultimately, the jury rendered a verdict for the defendant in the case and the plaintiff appealed.

In the plaintiff's appeal, he argued that:

the video depicted a recreation of his accident. In order for the video to be admissible, Burchfield asserts that CSX was required to prove that the testing on the video was performed under substantially similar conditions as those surrounding his accident. To make that showing," the defendant sought the testimony of the maker (Wolf, a rail consulting expert for the third party employer) of the video. The defendant proceeded on a different theory, The defense insisted that the "video was not a recreation such that it would be subject to a heightened foundational standard" of substantial similarity. Rather, the defendant contended that "the video was properly admitted because it was authenticated under Fed.R.Evid. 901(a), which requires a lesser showing from a witness laying a foundation for a photograph or motion picture.
Butterfield, __ F.3d at __.

The Eleventh Circuit concluded that admission of the video was an error. The circuit rejected the defense argument that:

the video was not offered as a recreation of the accident, ... [so that] it was unnecessary to establish substantial similarity of conditions between the testing on the video and Burchfield's accident. In making this argument, CSX relies on case law suggesting that the demonstrations of mere “general scientific principles” do not require a showing of substantial similarity.
Butterfield, __ F.3d at __ (citing Muth v. Ford Motor Co., 461 F.3d 557, 566 (5th Cir. 2006) (“When the demonstrative evidence is offered only as an illustration of general scientific principles, not as a reenactment of disputed events, it need not pass the substantial similarity test.”); McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1401 (8th Cir. 1994) (“[W]here the experimental tests do not purport to recreate the accident, but instead the experiments are used to demonstrate only general scientific principles, the requirement of substantially similar circumstances no longer applies.”).


In rejecting the defense argument, the circuit examined "the way in which CSX used the video at trial" to determine whether an adequate foundation had been established for its admission. First, the circuit noted that in defendant's opening and other statements at trial, "belie" that the video was not a recreation of the accident. In its conduct at trial, the defendant "repeatedly emphasized the purported similarities between the events depicted on the video and the circumstances surrounding Burchfield's accident." Butterfield, __ F.3d at __.

The circuit noted that:

at various points throughout the trial, CSX expressly argued that the video recreated the incident at issue in this case, and proved that Burchfield did not properly apply the hand brake. Thus, this was not a case of "evidence ... offered to merely show physical principles.' Rather, it is one in which '[t]he results of the experiment purported to coincide with [CSX's] theory of how the accident occurred."
Butterfield, __ F.3d at __ (citing Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1442 (10th Cir. 1992) (“[I]f the evidence is offered to merely show physical principles, the experiment should be conducted without suggesting that it simulates actual events.”; Muth v. Ford Motor Co., 461 F.3d 557, 566 (5th Cir. 2006) (“When the demonstrative evidence is offered only as an illustration of general scientific principles, not as a reenactment of disputed events, it need not pass the substantial similarity test.”); McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1401 (8th Cir. 1994) (“[W]here the experimental tests do not purport to recreate the accident, but instead the experiments are used to demonstrate only general scientific principles, the requirement of substantially similar circumstances no longer applies.”))."


The Eleventh Circuit identified a Fifth Circuit case, Barnes v. Gen. Motors Corp., 547 F.2d at 275, 277–78 (5th Cir. 1977), as stating the standard for admission of recreations in the Eleventh Circuit. That case, decided when jurisdiction of the current Eleventh Circuit was included in the Fifth Circuit, placed "[t]he burden is on the party offering the evidence to lay a proper foundation establishing a similarity of circumstances and conditions.For the experiment to be admissible, 'it is not required that all the conditions shall be precisely reproduced, but they must 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.'"

Applying the Barnes standard, the Eleventh Circuit found the defense's showing of a foundation for substantial similarity deficient:

We conclude that CSX failed to satisfy the Barnes substantially similar conditions test. To be sure, CSX attempted to lay a proper foundation for the admission of the video through John Henderson's testimony. That testimony, however, did not establish a similarity of conditions between the testing on the video and Burchfield's accident. Although Henderson provided specifics about the AEX 7136 used in the tests and where the tests were conducted, he provided no specifics about the actual tests themselves. For example, when asked about the way that the hand brake was applied on the video and, specifically, whether it was “torqued to higher than a normal human being can do,” Henderson replied: “I don't know.” Because he only witnessed the testing, Henderson's testimony was limited to his visual observations.).

The scope of Henderson's testimony made it impossible to assess whether the video “was fairly and honestly made under circumstances and conditions substantially similar to those attending” Burchfield's accident. We need not decide whether, as Burchfield contends, Gary Wolf's testimony was necessary for the video to be properly admitted. Because Henderson's testimony did not lay a proper foundation for the video's admission, we conclude that the district court abused its discretion by admitting it under the specific facts present here.
Butterfield, __ F.3d at __ (citing United States v. Spoerke, 568 F.3d 1236, 1249–50 (11th Cir. 2009) (finding that the district court did not abuse its discretion in admitting videos of pipe bombs exploding where the government offered testimony of the explosives expert who constructed the pipe bombs stating that the devices on the video were virtually identical to those used by the defendant)).


The error in admitting the video was not harmless and so the circuit reversed and remanded the case for a new trial. The circuit concluded that the testimony for a foundation received at trial "made it impossible to assess whether the video 'was fairly and honestly made under circumstances and conditions substantially similar to those attending' the plaintiff's accident. Accordingly, the case was reversed and remanded for a new trial.

Federal Rules of Evidence
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