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[DO NOT PUBLISH]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.
2
Case: 18-14545 Date Filed: 06/16/2020 Page: 3 of 14
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
3
Case: 18-14545 Date Filed: 06/16/2020 Page: 4 of 14
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,
4
Case: 18-14545 Date Filed: 06/16/2020 Page: 5 of 14
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.
5
Case: 18-14545 Date Filed: 06/16/2020 Page: 6 of 14
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.
1
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)
6
Case: 18-14545 Date Filed: 06/16/2020 Page: 7 of 14
(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.
7
Case: 18-14545 Date Filed: 06/16/2020 Page: 8 of 14
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.
2
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.
8
Case: 18-14545 Date Filed: 06/16/2020 Page: 9 of 14
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
9
Case: 18-14545 Date Filed: 06/16/2020 Page: 10 of 14
(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)).
3
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
10
Case: 18-14545 Date Filed: 06/16/2020 Page: 11 of 14
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.
1
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.
11
Case: 18-14545 Date Filed: 06/16/2020 Page: 12 of 14
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.
2
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
12
Case: 18-14545 Date Filed: 06/16/2020 Page: 13 of 14
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.
13
Case: 18-14545 Date Filed: 06/16/2020 Page: 14 of 14
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.
14
