IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60138

CHARLES E. BAKER,

Plaintiff–Appellant,

v.

CANADIAN NATIONAL/ILLINOIS CENTRAL RAILROAD,

Defendant–Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:03-CV-905

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Charles Baker sued “Canadian National/Illinois Central Railroad” for

injuries sustained after its train struck the dump truck Baker was driving. The

railroad, whose correct name is Illinois Central Railroad Company and to which

we will refer as Illinois Central, prevailed in a trial before a jury. Baker appeals

and alleges numerous errors. We affirm.

I

Illinois Central hired a contractor, W.S. Red Hancock, Inc. (Hancock), to

remove vegetation, dirt, and other obstructions from the railroad’s right of way

at a public railroad crossing that Illinois Central maintained. Charles Baker

worked for Hancock as a dump-truck driver. Together with Ken Henderson,

United States Court of Appeals

Fifth Circuit

F I L E D

July 16, 2008

Charles R. Fulbruge III

Clerk
No. 06-60138

2

another Hancock driver, Baker was to haul the cleared debris from the job site

to a local landfill. 

The job site was located approximately twenty to thirty feet from the

closest rail, though the parties disputed the site’s exact proximity to the tracks.

There were stop signs and railroad crossbucks where the public road on which

Baker traveled in leaving the job site intersected the tracks, but neither Illinois

Central nor Hancock provided flagmen or watchmen to warn the work crew of

approaching trains. Some of Baker’s co-workers, including the other truck driver

Henderson, testified they believed flagmen were unnecessary for this job site,

though one did recall an unnamed co-worker’s unsuccessful request for a

flagman. Baker’s expert, Edward Stanton, whose companies performed similar

work, testified he believed a flagman was necessary and that companies

generally used flagmen at sites he considered far safer than Green’s Crossing,

the site of the accident. James Loumiet, Baker’s expert on railroad–highway

safety, agreed with Stanton that a flagman was necessary for safety.

Shortly after 9:00 a.m., Baker followed Henderson across the tracks, and

the Illinois Central’s train struck Baker’s truck. Baker testified that he did not

see or hear the approaching train before the accident. Nonetheless, he concedes

that Richard Dunn, the locomotive engineer, sounded the horn and bell in

compliance with the law and was traveling within the maximum speed limit set

by the Federal Railroad Administration (FRA). 

Baker also testified that by the time he pulled off the job site and

straightened his truck on the road, it was on the tracks, though he also claimed

not to remember any events occurring after he released his parking brake.

Baker’s son, also an experienced truck driver but not an eyewitness, testified

thatin his opinion Baker would have been unable to pull his truck perpendicular

to the crossing until the truck was on the tracks. Both agreed that Baker was
No. 06-60138

3

unable to approach the tracks without some or all of his truck entering the road’s

left lane for oncoming traffic.

Nonetheless, several eyewitnesses disputed the Bakers’ testimony. The

locomotive engineer testified that Baker’s truck was “squared up with the

railroad tracks” and “all in his lane” moments before the accident. Baker’s coworker,Leon Davis,testified that, before Baker crossed the tracks, his truck was

positioned such that he had the same view that any other motorist traversing

the crossing would have had. The other driver, Henderson, testified he was able

to straighten his own truck at the stop sign, which provided him a ninety-degree

angle to view the track like any other motorist. However, Baker’s and

Henderson’s trucks were different makes and models.

Several eyewitnesses testified that Baker never stopped for the stop sign

or warning devices, though they agreed his truck was traveling no faster than

two miles per hour at the time of collision. Dunn, the locomotive engineer,

testified that Baker never appeared to look for an approaching train. As Dunn

approached, he observed Baker’s co-workers running towards the truck and

waving their arms, warning Baker of the approaching train.

Baker sued Illinois Central and alleged it was negligent for failing to

provide flagmen or other protections to Baker and for not installing lights or

gates. Baker filed a motion for partial summary judgment and argued that the

Roadway Worker Protection Rules (RWPR) required Illinois Central to provide

a flagman, watchman, or other protection because the work required the crew

to “foulthe tracks” by placing themselves in a position where a train could strike

either them or their equipment and that Illinois Central did not dispute the

absence of such warning systems. The district court denied Baker’s motion and

would later deny Baker’s motion for a judgment as a matter of law.

The case proceeded to a jury trial with a verdictin favor of Illinois Central.

The jury specifically found that Baker’s work did not require him to “foul the
No. 06-60138

1 Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997).

2

Id.

3 MISS. CODE ANN. § 77-9-249(1) (requiring a driver to stop at railroad tracks when

locomotive emits signal within nine-hundred feet of crossing); MISS. CODE ANN. § 77-9-249(4)

(requiring a driver to stop at crossbucks regardless of train’s approach); MISS. CODE ANN. § 63-

3-1009 (requiring a driver to stop at stop signs erected near railroad crossings).

4

tracks” as that term was defined in the district judge’s instructions. Baker

appeals the outcome and alleges approximately sixteen errors and sub-errors.

II

Baker argues thatthe trial court erred in denying his motion for judgment

as a matter of law in which he contended that the Illinois Central violated duties

to provide a flagman under both the RWPR and common law and the breach of

those duties was the proximate cause of the collision. The district court

previously denied Baker’s motion for partial summary judgment that asserted

these same grounds. This court reviews de novo the denial of motions for

judgment as a matter of law, applying the same standards the district court

applied.1 The district court should grant the motion if, after considering all

evidence in the light most favorable to the party opposed to the motion, the facts

and inferences strongly and overwhelmingly favor the moving party so that the

court concludes reasonable jurors could not arrive at a contrary verdict,2or if

there are no genuine issues of material fact and the movant is entitled to

judgment as a matter of law.

We note at the outset that fact issues existed as to proximate cause under

Mississippi law. The undisputed evidence indicated that Baker ran through the

stop sign. Under Mississippi law, even if the railroad company were negligent,

Baker’s violation of three different statutory duties to stop3 was arguably a

proximate cause of the accident. Thus, the district court did not err as to

proximate cause. For the same reasons, the district court did not err in rejecting
No. 06-60138

4 49 C.F.R. § 214.303.

5 49 C.F.R. § 214.7.

6

Id. (emphasis added).

5

Baker’s contention that Illinois Central was negligent per se under Mississippi

law.

A

Baker argues that the district court erred by denying the two motions

regarding whether Illinois Central violated its duties under the RWPR. Illinois

Central, however, disputes whether the RWPR apply. 

The RWPR require that qualifying railroads adopt and implement an ontrack safety program that will afford on-track safety to all roadway workers.4

The regulations define “on-track safety” as “a state of freedom from the danger

of being struck by a moving train or other railroad equipment, provided by

operating and safety rules that govern track occupancy by personnel, trains and

on-track equipment.”5 The regulations further define “roadway worker” as:

[A]ny employee of a railroad, or a contractor to a railroad, whose duties

include inspection, construction, maintenance or repair of railroad track,

bridges, roadway, signal and communication systems, electric traction

systems, roadway facilities or roadway maintenance machinery on or near

track or with the potential of fouling a track, and flagmen and

watchmen/lookouts as defined in this section.6

Neither party disputes that Baker was an employee of a contractor to a

railroad, but they do dispute whether the work that day was “on or near track

or with the potential of fouling a track.” “Fouling a track” is the “placement of

an individual or an item of equipment in such proximity to a track that the

individual or equipment could be struck by a moving train or on-track

equipment, or in any case is within four feet of the field side of the near running
No. 06-60138

7

Id.

6

rail.”7 Presumably, if “fouling a track” is placing an individual or equipment

within four feet, at a minimum, of the track, then the phrase “on or near track”

provides some additional coverage beyond four feet.

The evidence indicated that the job site was located, at its nearest point,

twenty to thirty feet from the closest rail. At that distance, Baker did not, as a

matter of law, have the potential to foul the track, nor was he on or near the

track. Nonetheless, Baker argues that he certainly fouled the track; the train

actually hit him. That fact, however, is not dispositive, because Baker fouled the

tracks and was hit away from the work site. The proximity of the work site to

the track determines whether the RWPR apply, not whether a worker fouls the

tracks after leaving the work site. Thus, the RWPR did not apply, and the court

did not err by denying Baker’s motions regarding Illinois Central’s duty under

the RWPR. 

We do not reach the question of whether Baker ceased to be a “roadway

worker” once he drove his truck onto the public road, an issue that the district

court decided adversely to Baker.

B

Baker next argues the district court should have ruled that as a matter of

law Illinois Central violated its common-law duties. Baker based his motions on

his expert’s testimony that whenever the expert’s companies worked as

independent contractors performing work similar to that of Hancock, the

railroads provided flagmen or similar protections and that Illinois Central’s

failure to post a flagman was unreasonable. By analogy, Baker argues that in

medical malpractice cases a jury cannot reject a physician’s testimony regarding

the standard of care, even if lay witnesses testify that the defendant need not

follow the standard. Baker also cites Young v. Illinois Central Gulf Railroad Co.,
No. 06-60138

8 618 F.2d 332, 338 (5th Cir. 1980).

9 Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 494 (5th Cir. 2002).

10 Broad. Satellite Int’l v. Nat’l Digital Television Ctr., 323 F.3d 339, 347 (5th Cir. 2003).

11 Folks v. Kirby Forest Indus. Inc., 10 F.3d 1173, 1174 (5th Cir. 1994).

7

in which this court stated itis “absurd” to believe the average layman knows the

necessities of railroad crossing safety.8 This language was in reference to the

district court’s exclusion in Young of an expert on crossing safety.

Baker’s expert offered opinion testimony that was challenged and rebutted

by another expert who testified that he did not believe a flagman was necessary.

The district court did not err in denying Baker’s motion for judgment in this

regard. 

III

Baker argues that the district court erred in its jury instructions and in

denying his motion for a new trial. We review challenges to jury instructions for

an abuse of discretion and will reverse the judgment only if the charge as a

whole creates a substantial doubt as to whether the jury has been properly

guided in its deliberations.9

In diversity actions, a federal court’s jury instructions must accurately

describe the applicable state substantive law, but the district court has wide

discretion in formulating the charge.10 We review de novo a district court’s

determination of a question of state law, but a party is entitled to reversal for a

district court’s failure to give a particularly requested instruction only ifthe jury

was misled by the given instructions.11

A

Baker first argues the district judge refused to add to the Special Verdict

form his claim that Illinois Central violated its common law duty of ordinary

care when itfailed to provide a flagman to the Hancock crew. Specifically, Baker
No. 06-60138

12 MISS. CODE ANN. § 77-9-247.

13 Donald v. Gulf M. & O. R.R., 71 So.2d 776, 777 (Miss. 1954).

14 New Orleans v. N.E.R. Co. v. Ready, 118 So.2d 185, 188 (Miss. 1960).

15 Wilner v. Miss. Exp. R.R., 546 So.2d 678, 682 (Miss. 1989).

8

argues the jury was not given an opportunity to address this issue since by

answering “no” to Special Interrogatory 6—whether the crossing was extrahazardous—the jury never reached Special Interrogatory 7—whether reasonable

care required extra precautions.

The district court’s arrangement ofthe Special Interrogatories was correct

in light of Mississippi law. Mississippi law generally only requires that a

railroad erect a crossbucks at its crossing.12 If the crossing is extra-hazardous,

Mississippi law imposes a duty upon railroads to provide additional warning

measures.13 Moreover, the Mississippi Supreme Court has stated it “know[s] of

no statute or other authority placing this duty [to have a flagman] on the

railroad as a matter of law.”14 That court has also held that, in the absence of

an extra-hazardous finding, the use of crossbucks met the reasonable care the

law requires.15 The district court did not err when it predicated Special

Interrogatory 7 on a finding that the crossing was extra-hazardous.

B

Baker argues the district court incorrectly instructed the jury that the

RWPR did not apply to him if he could approach the crossing in the same

manner as an ordinary motorist. This instruction did not improperly guide the

jury because in response to Baker’s RWPR claims, the jury found that his work

did not require him to foul the tracks. Accordingly, the jury did not find the

factual predicate triggering the RWPR’s protections. 

C

Baker contends the district court’s instructions repeatedly stated that
No. 06-60138

16 “[A]ny condition affecting the danger of a crossing may be considered in determining

whether the crossing is extrahazardous.”

17 Hanover Fire Ins. Co. v. Sides, 320 F.2d 437, 444 (upholding a district court’s decision

to refuse six additional instructions with respect to duties Louisiana law imposed on a driver

making a left-hand turn after the district court had already instructed the jury on that issue).

18 MISS. CODE ANN. § 77-9-249(1) (requiring a driver to stop at railroad tracks when

locomotive emits signal within nine-hundred feet of crossing); MISS. CODE ANN. § 77-9-249(4)

(requiring a driver to stop at crossbucks regardless of train’s approach); MISS. CODE ANN. § 63-

3-1009 (requiring a driver to stop at stop signs erected near railroad crossings).

9

Mississippi law required Illinois Central to install additional warning devices

only if the crossing were extra-hazardous. Baker claims this was prejudicial

because it unduly emphasized Illinois Central’s position.

This argument has no merit. The district court instructed the jury that

Baker alleged the crossing was extra-hazardous and listed the elements he was

required to prove. The district court defined “extra-hazardous” in a manner that

was not prejudicial to Baker.16 The district court concluded by advising the jury

as to Mississippi’s statutory requirements. Baker cites one case, which is easily

distinguishable.17 The instructions were correct statements of Mississippi law

and not unnecessarily repetitive.

D

Baker next argues thatthe district court erred when it instructed the jury

three times regarding Baker’s duty to stop. He argues one instruction was

sufficient, and that the additional two instructions confused the jury or

suggested that Baker’s failure to stop was the sole cause of the collision. The

district court did not err because each instruction was based on a separate

statutory duty.18

Nor did the district court err when it did not use Mississippi stateapproved jury instructions with respect to these particular instructions. While
No. 06-60138

19 Broad. Satellite Int’l. v. Nat’l Digital Television Ctr., 323 F.3d 339, 347 (5th Cir.

2003).

20 See Stewart v. Singing River Hosp. Sys., 928 So.2d 176, 183 (Miss. App. 2005);

Johnson v. Ferguson, 435 So.2d 1191, 1193-95 (Miss. 1983).

21 7 F.3d 1256, 1258 (5th Cir. 1993) (“A district court may not instruct a jury on a legal

theory in support of which no evidence is presented.”).

10

the district court’s instructions regarding state substantive law must be

accurate, the trial judge is given discretion in formulating the specific charge.19

E

Baker asserts that his physician testified that Baker could not perform

work of any kind due to his intermittent physical and mental impairments and

that the district court erred in instructing the jury to consider his ability to

mitigate his damages. Baker cites several Mississippi workers’ compensation

cases for the proposition that a factfinder commits reversible error when it

ignores testimony of the plaintiff’s treating physicians,20 and he concludes there

was no evidence to support such an instruction, citing Roberts v. Wal-Mart

Stores, Inc.21

The record, including Baker’s own evidence, reflects no error. Illinois

Central presented evidence that Baker renewed his commercial drivers’ license,

regularly drove his own automobile, and traveled on his own. Baker also

routinely visited casinos and businesses. Illinois Central’s surveillance footage

showed Baker squatting and walking. Finally, Baker’s own physician testified

“there were certainly some jobs [Baker] could perform.” 

IV

Baker contends that the jury’s findings were against the great weight of

the evidence, and the district court therefore erred in denying his motion for a

new trial. We apply a deferential standard in reviewing a trial court’s refusal

to grant a motion for new trial. We will not reverse the trial court’s decision
No. 06-60138

22 Duff v. Werner Enters. Inc., 489 F.3d 727, 729 (5th Cir. 2007).

23 Id. (“Absent ‘a clear showing of an abuse of discretion,’ we will not reverse the trial

court’s decision to deny a new trial. . . . To make such a ‘clear showing,’ Appellants must

demonstrate ‘an absolute absence of evidence to support the jury’s verdict.’”) (citations

omitted).

11

unless there is a clear showing of abuse of discretion.22 A “clear showing”

requires that the appellant demonstrate “an absolute absence of evidence” to

support the jury’s verdict.23

A

The jury answered “no” to a special interrogatory asking whether Baker’s

work required him to “foul the tracks.” The evidence was disputed on this issue.

Additionally, given the undisputed fact that the worksite was twenty to thirty

feet from the nearest track, the jury did not err in concluding that the work

Hancock performed did not require Baker or his co-workers to foul the track.

Baker argues that a photograph taken immediately after the accident

shows that his trailer was in the left lane, rather than the right, a position from

which, Baker contends no ordinary motorist would have to approach the

crossing. He contends this photograph means the jury’s answer to the

interrogatory “comes very close to being contrary to incontrovertible physical

facts.” But this ignores other evidence that reflects Baker could have left the

work site and pulled his trailer into the correct lane as another driver testified

he had done and, more importantly, evidence that even if Baker’s trailer was in

the left lane, he had an unobstructed view of the tracks and could have observed

a train approaching had he looked.

B

Baker asserts that the jury’s finding that Illinois Central did not violate

its duty of ordinary care to provide a flagman is against the great weight of the

evidence. For reasons already discussed, this contention has no merit.

V
No. 06-60138

24 Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 515 (5th Cir. 1993).

25 FED. R. EVID. 407.

26 Id.

27 774 F.2d 1309, 1314 (5th Cir. 1985). 

12

Baker challenges several evidentiary rulings, arguing he is entitled to a

new trial. We review admissions of evidence and denial of a new trial under an

abuse of discretion standard.24 We conclude the district judge either was within

his discretion or committed only harmless error.

A

The district court excluded evidence of the subsequent installation of lights

and gates at the crossing where the accident occurred. The evidentiary rules

generally ban the admission of evidence concerning subsequent remedial

measures.

25 However, a party may introduce such evidence for a purpose besides

demonstrating negligence—such as, ownership, control, or feasibility of

precautionary measures.26

Baker argues that Illinois Central presented evidence that disputed

whether lights and gates would have made Baker safer that day. Specifically,

Baker cites the locomotive engineer’s testimony that “gates are probably not as

safe as just a stop sign and crossbuck” and that any crossing design expert who

believed otherwise “could come ride that train with me and they will see I’m

right.” 

Baker relies on Muzyka v. Remington Arms to prove admissibility, in

which we held that the district court erred when it excluded evidence of a

subsequent redesign for impeachment purposes.27 Remington’s numerous

experts called the rifle the safest in the world and stated that the flaw plaintiff

alleged presented no danger to consumers, despite the fact that Remington
No. 06-60138

28 Id. at 1311-1314.

29 Id. at 1312.

30 Id. at 1313.

31 Hardy v. Chemetron Corp., 870 F.2d 1007, 1011 (5th Cir. 1989).

13

subsequently corrected the alleged flaw.28 After the plaintiff suggested

Remington could have redesigned the rifle in the manner the company

ultimately did, one expert replied “you want Remington to depart from the

judgment of the entire firearm’s industry.”29 We noted that the jury was

required to choose between two theories of the case: the rifle unexpectedly fired

because of a either a flaw or mishandling. We concluded it was error to deny the

jury evidence impeaching the numerous experts who spoke of the rifle in

superlatives.30

We decline to analogize the analysis of Remington’s numerous experts to

the lone opinion of Illinois Central’s locomotive engineer, a lay witness.

Moreover, when the decision to admit or exclude evidence of a design change is

a close call, a district court’s decision to exclude the evidence is within its

discretion.31 Given that the lights and gates were installed two years after the

accident, and Baker’s almost exclusive reliance on Dunn’s testimony as Illinois

Central’s denial of feasibility, we conclude the district court did not abuse its

discretion. 

B

The district court did not permit Baker’s expert, Edward Stanton, to

testify as to the legal meaning of terms used in the RWPR, which went into

effect in 1996. Stanton last worked for a railroad in 1948 and as a railroad

contractor in 1987 and stated he had to look up the regulation after his

deposition, presumably to familiarize himself with it. The FRA has given the

RWPR’s terms specialized meaning, and the district court did not abuse his
No. 06-60138

32 FED. R. EVID. 602.

33 Brazos River Auth. v. GE Ionics, 469 F.3d 416, 426 (5th Cir. 2006).

34 Id. 

14

discretion by excluding Stanton’s interpretation of a regulation with which he

admitted he had little experience.32

C

The district court excluded evidence of a prior accident. Admissibility of

such evidence is determined on a case-by-case basis, with the court considering

various factors including the theory of recovery, the defendant’s defenses, and

the degree of similarity between the other accidents.33

Baker argues Brazos River Authority requires a district court to admit

evidence of prior accidents if there are any similarities, leaving the jury to

determine the degree of similarity.34 The only prior accident about which the

record reflects Baker sought to adduce evidence involved a car stalled on the

tracks. Even if the trial judge should have admitted evidence of that prior

accident, and left the jury to determine the degree of similarity, it was harmless

error since it did not affect Baker’s substantial rights. We conclude the jury

would not have ruled differently based on a single prior and substantially

dissimilar accident.

D

Baker retrieved from Illinois Central’s website and attempted to introduce

a document regarding a company policy to use flagmen whenever workers are

within twenty-five feet of the track. Illinois Central objected that Baker failed

to lay a proper foundation because he could not prove the policy was in effect at

the time of the accident. Without such proof, the policy was a subsequent

remedial measure, argued Illinois Central, and was prohibited by the rules of

evidence. Illinois Central also argued that the document violated the motion in
No. 06-60138

35 FED. R. EVID. 407.

36 988 F.2d 513 (5th Cir. 1993).

37 Id. at 518.

15

limine because the policy was that of its subsidiary corporation. Baker failed to

establish when the policy was created or rebut Illinois Central’s claim that the

policy was that of its subsidiary. Thus, the judge did not err in excluding it as

substantive evidence.35

E

The district court admitted surveillance videos of Baker. Baker argues

that the videos (1) were disclosed after the discovery cutoff; (2) did not impeach

the plaintiff’s witnesses; and (3) were more prejudicial than probative. The

surveillance videos show 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. Illinois Central argues the videos

are both substantive evidence of Baker’s post-accident condition and

impeachment evidence challenging Baker’s witnesses who described his mental

and physical condition. For example, two of Baker’s medical experts testified

that Baker had mental problems and memory problems, was incapable of

managing his financial affairs (including simple tasks, such as making change

and counting money), should not drive, had difficulty dealing with crowds, and

needed to live in an assisted living facility.

Baker cites Chiasson v. Zapata Gulf Marine Co.36 arguing that it is

reversible error to admit surveillance evidence that was not disclosed during the

discovery period. This is incorrect. Chiasson dealt with a surveillance video that

was never disclosed to the plaintiff before trial despite the plaintiff’s

interrogatory regarding the existence of still or motion pictures of the plaintiff.37

The defendant responded to the interrogatory by citing “attorney work-product
No. 06-60138

38 See id.; see also Whittaker Corp. v. Execuair Corp., 736 F.2d 1341, 1347 (9th Cir.

1984) (“District courts do have power to prescribe time limits for conducting discovery. The

purpose of a discovery cutoff date is to protect the parties from a continuing burden of

producing evidence and to assure them adequate time to prepare immediately before trail. A

discovery cutoff date does not, however, affect admissibility of evidence obtained outside of the

discovery process of the case in which cutoff is ordered.”) (citations omitted).

39 FED. R. EVID. 403.

16

privilege.” The defendant, thereafter, surveilled and recorded the plaintiff and

did not supplement its discovery response. During the trial, the district court

ruled the defendant could show the surveillance tape to the jury and denied the

plaintiff’s request to preview the tape. We concluded that, regardless of any

impeachment value, the video was of a substantive nature. Therefore we held

that the district court erred by admitting substantive evidence undisclosed

before trial. We did not hold, as Baker contends, that a surveillance tape

disclosed after the discovery cutoff, but before trial, is automatically

inadmissible.38

Here, Illinois Central produced the surveillance footage in two

supplemental responses to Baker’s interrogatories approximately nine to ten

months before trial. Thus, Chiasson did not require the district court to exclude

the videos, which we conclude were properly admitted as substantive evidence.

Baker contends the district court should have excluded the video because

it was more prejudicial than probative.39 Specifically, Baker notes that the

surveillance footage shows him spending long periods of time in casinos and

draws a connection between thatfootage and Illinois Central’s closing argument,

in which its attorney stated Baker had “gambled with his life” by running the

stop sign. Baker argues that this evidence informed jurors that he engaged in

activities many people consider immoral.

Rule 403 requires that the probative value of the evidence must be

“substantially outweighed by the danger of unfair prejudice” before the court
No. 06-60138

40 Id.

41 Brazos River Auth. v. GE Ionics, 469 F.3d 416, 427 (5th Cir. 2006).

42 United States v. McRae, 593 F.2d 700, 708 (5th Cir. 1979).

43 Id.

44 Id.

17

may exclude the disputed evidence.40 Unfair prejudice is not satisfied by

evidence that is “merely adverse to the opposing party.”41 For that reason,

district courts should apply Rule 403 sparingly.42 Rule 403’s “major function is

limited to excluding matter of scant or cumulative probative force, dragged in by

the heels for the sake of its prejudicial effect.”43 Rule 403 is not designed to

“even out” the weight of the evidence.44 Baker’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 video’s probative value contradicting

these statements weighs heavily against a hypothetical juror’s moral aversion

to gambling. The district court did not abuse its discretion by allowing the

surveillance footage.

F

Baker challenges the district court’s admission of two neurology reports

during the cross-examination of his son, Baker, Jr. These neurology reports

composed one of Baker’s exhibits. Baker, Jr., testified regarding his father’s

mental and physical condition. Illinois Central attempted to rebut his testimony

by reading from these reports and asking Baker, Jr., whether the reports were

read correctly. Among other findings, the reports suggested that Baker may

have purposely performed poorly on various physical examinations. Baker

argues that Baker, Jr., was not present during these examinations and lacked
No. 06-60138

45 FED. R. EVID. 602.

18

personal knowledge. Thus, Baker argues Rule 60245 prevented his son from

testifying as to the events the reports discussed. 

Even if the reports were improperly used with this witness, which we do

not resolve,their use did not prejudice Baker. Pre-trial, he had introduced these

documents as his own exhibit. Baker cannot claim that the contents of reports

he introduced prejudiced him. 

* * *

We have reviewed the numerous errors Baker alleges, and we find none

of his arguments persuasive. We therefore AFFIRM the district court.