Marlina Calhoun v. Wal-Mart Stores East, LP

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 16, 2020
• Docket: 18-14545
• Status: Unpublished

Opinion

Case: 18-14545 Date Filed: 06/16/2020 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14545 Non-Argument Calendar ________________________

D.C. Docket No. 1:14-cv-02581-CC

MARLINA CALHOUN,

Plaintiff-Appellant,

versus

WALMART STORES EAST, LP,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(June 16, 2020)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-14545 Date Filed: 06/16/2020 Page: 2 of 14

Marlina Calhoun, proceeding pro se, appeals the district court’s entry of final

judgment following a jury verdict in favor of Walmart Stores East, LP in her

premises liability action against Walmart. She also appeals the district court’s denial

of her motions for a new trial and for judgment as a matter of law. After careful

review of the record and the parties’ briefs, we affirm.

I

In 2014, Ms. Calhoun sued Walmart Stores, Inc. for negligence in a Georgia

state court. She alleged that she sustained injuries to her lower back, leg, neck, brain,

and wrists after a Walmart employee negligently hit her with a line of shopping carts,

which he was pushing using a mechanized device. Walmart Stores, Inc. removed

the action to the U.S. District Court for the Northern District of Georgia based on

diversity of citizenship under 28 U.S.C. § 1332, and substituted Walmart Stores,

East LP as the proper defendant. 1

The district court granted partial summary judgment in favor of Walmart on

Ms. Calhoun’s claims that she suffered wrist, neck, and brain injuries, because there

was no evidence that the incident caused these injuries. Ms. Calhoun’s claims of

injury to her leg and lower back proceeded to trial.

1 Ms. Calhoun was initially represented by counsel, but she proceeded pro se after firing four separate attorneys during the course of the district court proceedings.

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At trial, Ms. Calhoun presented evidence demonstrating that on August 4,

2012, she went with her daughter and grandson to shop at a Walmart store. While

Ms. Calhoun was putting her grandson in the basket of a shopping cart, she was hit

from behind with another cart. Ms. Calhoun testified that she was hit with “force,”

causing her to “thrust forward.” D.E. 171 at 62–63.

Ms. Calhoun further testified that as a result of this incident, she suffered back

and leg pain. She testified that because of this pain, she is “not able to work,” “not

able to sit long,” “not able to walk long,” and “need[s] [her] cane.” D.E. 171 at 64.

She also testified that she could no longer work as a model or an actress as a result

of this incident.

During cross-examination, Walmart impeached Ms. Calhoun’s testimony

with printouts of her Facebook posts, which showed that after the incident, she

described herself on Facebook as a “certified personal trainer,” posted a link to her

personal trainer website saying “check me out, personal trainer,” and posted about

attending acting classes and casting calls. Ms. Calhoun responded that her Facebook

posts “were made up” and she was “actually bedridden at that time.” Id. at 78–79.

Sterling Jackson, the employee who was pushing the carts at the time of the

incident, testified on behalf of Walmart. He testified that as a cart pusher, he would

attach carts to a “cart mule” and use the mule to push the carts back into the store’s

vestibule. At the time of the incident, he was returning a stack of five to seven carts

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to the vestibule on “turtle” speed, which means the carts were moving slowly. He

saw Ms. Calhoun standing in the vestibule and yelled twice for her to move. She

did not move, and the carts “soft[ly] tap[ped]” her. D.E. 171 at 107.

Walmart also presented a video of the incident captured by the store’s

surveillance system. According to Mr. Jackson, the video showed “[j]ust a slow tap

movement.” D.E. 171 at 111. Mr. Jackson testified that the video accurately and

completely depicted the incident.

Ms. Calhoun was treated by her long-term physician, Dr. Sherell Vicks, as

well as by Dr. Augustine Conduah, an orthopedic specialist. Ms. Calhoun intended

to present both doctors’ testimony at trial, but she did not subpoena either doctor and

they were unavailable to testify. Although both doctors were deposed, Ms. Calhoun

did not designate any portion of their deposition testimony to be read at trial in the

pretrial order.

Walmart, however, read designated portions of Dr. Conduah’s deposition

testimony into the record at trial. Namely, Walmart read testimony in which Dr.

Conduah stated that, after watching the video of the incident at Walmart, he could

not state to a reasonable degree of medical certainty that the incident caused Ms.

Calhoun’s back pain. Dr. Conduah further testified that in March of 2015, he

diagnosed Ms. Calhoun with osteoarthritis of her right knee, which is a degenerative

condition from wear and tear on the knee joint over time, and a few months later,

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she had inflammation of both knees—which was most likely secondary to the

osteoarthritis. Dr. Conduah testified that he could not state to a reasonable degree

of medical certainty that her knee pain was caused by the Walmart incident either.

To summarize his testimony, Walmart’s counsel asked Dr. Conduah: “In summary,

Doctor, up until today’s date, on all the occasions you’ve seen her, you’ve seen her

for . . . [l]umbar radiculitis or lumbar or thoracic radiculitis, bilateral carpal tunnel

syndrome, and bilateral osteoarthritis to the knees, none of which you associate with

this incident we’ve seen today on the video; is that correct?” D.E. 172 at 25. Dr.

Conduah answered: “Correct. Not by what—not based on what I witnessed on the

video, correct.” Id.

The jury returned a verdict in favor of Walmart. After the trial, Ms. Calhoun

moved for judgment as a matter of law and for a new trial. The district court denied

both motions.

This appeal followed.

II

Liberally construing Ms. Calhoun’s pro se briefs, as we must, Ms. Calhoun

challenges several of the district court’s evidentiary rulings at trial, as well as the

district court’s denial of her post-trial motions. See Bellizia v. Fla. Dep’t of Corr.,

614 F.3d 1326, 1329 (11th Cir. 2010) (“We construe pro se filings . . . liberally.”).

We begin by reviewing the alleged trial errors.

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A

First, Ms. Calhoun contends that the district court erred by prohibiting her

mother from testifying about the contents of Dr. Vicks’ deposition testimony.

Second, she argues that the district court improperly excluded her medical records.

Third, she asserts that the district court erred by permitting Walmart to impeach her

with her Facebook posts. We review the district court’s evidentiary rulings “only

for a clear abuse of discretion[.]” Taylor v. Mentor Worldwide LLC, 940 F.3d 582,

591 (11th Cir. 2019) (citation and internal quotation marks omitted). We address

each of Ms. Calhoun’s contentions below.

Because Dr. Vicks was unavailable to testify at trial, Ms. Calhoun requested

that her mother be permitted to testify about the contents of Dr. Vicks’ deposition

testimony, as her mother was present for the deposition. The district court denied

this request. On appeal, Ms. Calhoun asserts that her mother should have been

allowed to testify about Dr. Vicks’ statements that she did not have any injuries prior

to the incident and that Walmart was responsible for her injuries. We affirm the

district court’s decision to exclude this testimony, as it constitutes inadmissible

hearsay. See Fed. R. Evid. 802.

“The Federal Rules of Evidence generally prohibit the admission of hearsay

statements at trial.” United States v. Santos, 947 F.3d 711, 723 (11th Cir. 2020)

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(citing Fed. R. Evid. 802). “Hearsay is a statement, other than one made by a

declarant while testifying at trial, offered in evidence to prove the truth of the matter

asserted.” United States v. Rivera, 780 F.3d 1084, 1092 (11th Cir. 2015) (citing Fed.

R. Evid. 801(c)). Dr. Vicks’ out-of-court statements regarding Ms. Calhoun’s

injuries—which Ms. Calhoun sought to offer for their truth—fall squarely within

this definition. See id.

Ms. Calhoun argues, however, that Dr. Vicks’ statements fall within two

hearsay exceptions: (1) the Rule 803(3) exception for statements about the

declarant’s then-existing mental, emotional or physical conditions; and (2) the Rule

803(4) exception for statements that are made for medical diagnosis or treatment.

Rule 803(3) provides, in pertinent part, that “[a] statement of the declarant’s then-

existing . . . physical condition (such as mental feeling, pain, or bodily health)” is

not excluded by the hearsay rule. Rule 803(4) excludes from the hearsay rule “[a]

statement that: (A) is made for—and is reasonably pertinent to—medical diagnosis

or treatment; and (B) describes medical history; past or present symptoms or

sensations; their inception; or their general cause.”

Rule 803(3) does not apply here because Ms. Calhoun sought to admit Dr.

Vicks’ statements to prove that Walmart caused her injuries—not to establish her

state of mind. Indeed, Dr. Vicks is the declarant in the statements at issue, and her

state of mind was not relevant at trial. See T. Harris Young & Assocs., Inc. v.

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Marquette Elecs., Inc., 931 F.2d 816, 828 (11th Cir. 1991) (“Before a statement can

be admitted under Rule 803(3) to show the declarant’s then-existing state of mind,

the declarant’s state of mind must be a relevant issue.”).

Rule 803(4) likewise does not apply because the out-of-court statements that

Ms. Calhoun sought to introduce were from Dr. Vicks’ deposition testimony—they

were not Ms. Calhoun’s description of her injuries to Dr. Vicks when she was

seeking treatment. As explained in the committee notes, the rationale for Rule

803(4) is that statements “made to a physician for purposes of diagnosis and

treatment” are more reliable “in view of the patient’s strong motivation to be

truthful.” Fed. R. Evid. 803(4) advisory committee’s notes. That rationale is

inapplicable to statements Dr. Vicks made during her deposition. Accordingly, the

district court properly precluded Ms. Calhoun’s mother from testifying about Dr.

Vicks’ out-of-court statements.

Ms. Calhoun next contends that the district court erred in excluding her

medical bills and records. The district court excluded Ms. Calhoun’s medical bills

and records for two reasons: (1) some of the records were either incomplete or

altered with Ms. Calhoun’s marking or notes; and (2) none of the bills or records

were authenticated. This was not an abuse of discretion.

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Rule 901 provides that to authenticate or identify an item of evidence, “the

proponent must produce evidence sufficient to support a finding that the item is what

the proponent claims it is,” Fed. R. Evid. 901(a), such as “[t]estimony that an item

is what it is claimed to be,” Fed. R. Evid. 901(b)(1). Though Rule 901 “require[s]

only enough evidence that a jury could have reasonably concluded that a document

was authentic,” United States v. Williams, 865 F.3d 1328, 1343 (11th Cir. 2017)

(citation and internal quotation marks omitted), Ms. Calhoun provided no evidence

whatsoever to demonstrate that the documents were what she claimed they were—

namely, records of services for injuries related to the incident at Walmart.

We also note that the medical bills and records constituted hearsay to the

extent that they contained doctors’ out-of-court statements which Ms. Calhoun

offered for their truth. See Fed. R. Evid. 801(c). Ms. Calhoun could not show that

they qualified under the business records exception in Rule 803(6) because she did

not present any witness who was “knowledgeable about the procedures used to

create” the records. In Re Int’l Management Assocs., LLC, 781 F.3d 1262, 1268

(11th Cir. 2015); United States v. Garnett, 122 F.3d 1016, 1018–19 (11th Cir. 1997)

(“Fed. R. Evid. 803(6) requires the testimony of a custodian or other qualified

witness who can explain the record-keeping procedure utilized.”).

The district court therefore did not abuse its discretion in excluding Ms.

Calhoun’s medical bills and records. Cf. Belber v. Lipson, 905 F.2d 549, 551–52

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(1st Cir. 1990) (holding that the district court did not abuse its discretion in excluding

medical records where there was no evidence authenticating the records under Rule

901 and no testimony establishing that the documents constituted business records

under Rule 803(6)).

Ms. Calhoun also argues that the district court erred by permitting Walmart to

impeach her with her Facebook posts reflecting that she worked as a personal trainer,

model, and actress after the incident. She asserts that Walmart did not disclose this

evidence prior to trial, and that the use of her Facebook posts violates “copyright

laws.” Both arguments lack merit.

First, Federal Rule of Civil Procedure 26 does not require pre-trial disclosure

of evidence that may be used at trial “solely for impeachment.” Fed. R. Civ. P.

26(a)(3). Walmart was thus not required to disclose Ms. Calhoun’s Facebook posts

prior to trial, because it used this evidence solely for the purpose of impeaching her

testimony that she was unable to work after the incident.

Second, Ms. Calhoun did not raise her argument that Walmart’s use of her

Facebook posts violated copyright laws before the district court. She therefore

waived this contention. See FDIC v. Verex Assur., Inc., 3 F.3d 391, 395 (11th Cir.

1993) (“[A]ppellate courts generally will not consider an issue or theory that was not

raised in the district court.”). We nevertheless note that copyright law does not

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protect Ms. Calhoun’s Facebook posts about her activities. See, e.g., Feist Publ’ns,

Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 350 (1991) (explaining that

copyright does not apply to “facts, or materials in the public domain” but instead “is

limited to those aspects of the work—termed ‘expression’—that display the stamp

of the author’s originality”) (quoting Harper & Row Publishers, Inc. v. Nation

Enters., 471 U.S. 539, 547–48 (1985)).

B

We now turn to the district court’s denial of Ms. Calhoun’s post-trial motions.

Under Federal Rule of Civil Procedure 50(a), a motion for judgment as a

matter of law must be made “before the case is submitted to the jury.” Fed. R. Civ.

P. 50(a)(2). The motion may be renewed after trial. See Fed. R. Civ. P. 50(b). If a

party fails to assert a Rule 50(a) motion before the case is submitted to the jury, “a

subsequent motion for jnov can be granted only if plain error can be proven.”

McGinnis v. American Home Morg. Servicing, Inc., 817 F.3d 1241, 1260 n.13 (11th

Cir. 2016) (citations and internal quotation marks omitted). In such a case, on appeal

“our inquiry is limited to whether there was any evidence to support the jury’s

verdict, irrespective of its sufficiency, or whether plain error was noted which, if not

noticed, would result in a manifest miscarriage of justice.” Sims’ Crane Serv., Inc.

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v. Ideal Steel Prods., 800 F.2d 1553, 1557 (11th Cir. 1986) (citation and internal

quotation marks omitted).

Ms. Calhoun did not move for judgment as a matter of law before the case

was submitted to the jury. Although Ms. Calhoun argues that she asked the court

reporter to ask the judge to return to the courtroom after the jury retired for

deliberations so she could make such a motion, that still would not have been timely

because the case was already submitted to the jury. See Fed. R. Civ. P. 50(a)(2).

Thus, we review only for plain error. See Sims’ Crane Serv., 800 F.2d at 1557.

The district court did not plainly err in denying Ms. Calhoun’s motion for

judgment as a matter of law. The jury’s verdict was supported by evidence,

including Mr. Jackson’s testimony that the shopping cart only softly tapped Ms.

Calhoun and Walmart’s surveillance video footage which was consistent with Mr.

Jackson’s testimony.

Under Federal Rule of Civil Procedure 59(a), “a district court may, in its

discretion, grant a new trial if in [the court’s] opinion, the verdict is against the clear

weight of the evidence . . . or will result in a miscarriage of justice, even though there

may be substantial evidence which would prevent the direction of verdict.”

McGinnis, 817 F.3d at 1254 (citations and internal quotation marks omitted). We

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review the district court’s denial of a motion for a new trial for abuse of discretion.

See Taylor, 940 F.3d at 594.

The district court did not abuse its discretion in denying Ms. Calhoun’s motion

for a new trial, as the jury’s verdict was not against the great weight of the evidence.

As noted, Mr. Jackson testified that the shopping cart only softly tapped Ms.

Calhoun, and the surveillance video was consistent with his testimony. The jury was

free to credit that evidence over Ms. Calhoun’s and her daughter’s accounts of the

incident. See generally Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493,

1498 (11th Cir. 1987) (explaining that the jury is “called upon to make credibility

determinations and to weigh the evidence” and is “free to believe or disbelieve

portions of testimony”). Indeed, the jury may have found Ms. Calhoun’s and her

daughter’s testimony less persuasive because Ms. Calhoun was impeached by her

Facebook posts, as discussed earlier, and her daughter was impeached by

inconsistent statements. In addition, there was no evidence that the incident caused

Ms. Calhoun’s back or leg pain, and Dr. Conduah testified by deposition that he

could not state to a reasonable degree of medical certainty that the incident caused

Ms. Calhoun’s back or knee pain. In view of this evidence, the district court properly

denied Ms. Calhoun’s motion for a new trial. 2

2 Ms. Calhoun makes passing reference to numerous other issues in her initial brief. To the extent that she sought to raise any other issues on appeal, she abandoned those claims by failing to properly brief them. See, e.g., Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.

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III

For the foregoing reasons, we affirm.

AFFIRMED.

2014) (“A party fails to adequately ‘brief’ a claim when he does not ‘plainly and prominently’ raise it, ‘for instance by devoting a discrete section of his argument to those claims.’”) (citation omitted); Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“A passing reference to an issue in a brief is not enough, and the failure to make arguments and cite authorities in support of an issue waives it.”). “While we read briefs filed by pro se litigants liberally . . . , issues not briefed on appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Ms. Calhoun thus abandoned any issues not addressed here.