Burchfield v. CSX Transp., Inc. , __ F.3d __ (11th Cir. March 30, 2011) (No. 09–15417), is a interesting decision that addresses the issue of the admissibility of videos made by third parties.
The plaintiff objected to the defendant’s use of the video and maintained that it
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.
The Court of Appeals sided with the plaintiff, saying as follows:
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.).
Other cases addressing this issue include 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.”); and 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 error in admitting the video required a reversal of a defense verdict.
Hat tip to the blog of Federal Evidence Review for bringing this decision to my attention.