Jessica Frye v. CSX Transp., Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0184p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JESSICA FRYE, ┐
Plaintiff-Appellant, │
│
> No. 18-2056
v. │
│
│
CSX TRANSPORTATION, INC.; CONSOLIDATED RAIL │
CORPORATION; ALAN GALLACHER, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:14-cv-11996—Stephen J. Murphy, III, District Judge.
Argued: May 7, 2019
Decided and Filed: August 5, 2019
Before: COLE, Chief Judge; STRANCH and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Mark E. Parrish, BOYD, KENTER, THOMAS & PARRISH, LLC, Independence,
Missouri, for Appellant. Joseph J. McDonnell, GALLAGHER SHARP LLP, Detroit, Michigan,
for Appellee. ON BRIEF: Mark E. Parrish, BOYD, KENTER, THOMAS & PARRISH,
LLC, Independence, Missouri, for Appellant. Joseph J. McDonnell, Mary C. O’Donnell,
GALLAGHER SHARP LLP, Detroit, Michigan, for Appellee.
No. 18-2056 Frye v. CSX Transp., Inc. Page 2
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Tragedy befell thirteen-year-old Shyan Frye.
While walking her bicycle over a rail crossing in Huron Township, Michigan, she was struck by
an oncoming train. The collision proved fatal.
In the aftermath of this tragedy, Shyan’s mother, Plaintiff Jessica Frye, brought suit
against Defendants CSX Transportation, Inc., the train’s owner; Alan Gallacher, the train’s
conductor; and Consolidated Rail Corporation, or “Conrail,” the owner of the track. The claims
against Gallacher were resolved in his favor at summary judgment, and the remaining claims
were submitted to a jury. The jury, in turn, returned a verdict in favor of Defendants CSX and
Conrail.
On appeal, Frye challenges numerous aspects of the proceedings below. She takes issue
with the district court’s entry of summary judgment for Gallacher. And she takes issue with a
host of rulings at trial. They include: The district court’s refusal to strike potential juror Jay
Lodge for cause during voir dire; two evidentiary rulings by the district court, one admitting
evidence of the potential side effects of an anti-depressant Shyan was taking at the time of her
death, and another excluding photographs of the railroad crossing after it was resurfaced; and
finally, the district court’s refusal to give a jury instruction regarding the heightened duty of care
imposed on tortfeasors when children are present.
We find no error in the district court’s summary judgment ruling nor in its handling of the
trial proceedings. In a case born out of tragedy and presenting challenging legal issues, the
district court allowed the jury to assess the defendants’ culpability against the backdrop of the
proper legal framework. We accordingly AFFIRM the judgment of the district court.
No. 18-2056 Frye v. CSX Transp., Inc. Page 3
I. BACKGROUND
On April 15, 2011, Shyan Frye, a thirteen-year-old eighth-grade student, was struck and
killed by a train while walking her bicycle over a single-track crossing. The train was operated
by CSX and manned by two CSX employees: Craig Fischer, the engineer, and Defendant Alan
Gallacher, the conductor. At the time of the accident, the train was traveling below the
applicable speed limit, and its horn sounded for approximately 20 seconds before it reached the
crossing—more than required by federal law. See 49 C.F.R. § 222.21(b)(2).
The crossing was owned and maintained by Conrail. Conrail had equipped the crossing
with signal bells and lights that activated as intended nearly 40 seconds before the train arrived at
the crossing. The accident occurred on a clear day when oncoming trains were fully visible.
A. The Parties Present Differing Explanations As To The Cause Of The Train
Accident.
Fischer and Gallacher were the only witnesses to the accident. According to their
testimony, Shyan came into view of the train crew approximately 40 seconds before the accident.
Both Fischer and Gallacher testified that they witnessed Shyan walk onto the track while
straddling her bicycle. When the train was roughly a quarter-mile from the crossing, Fischer
applied the train’s emergency brakes, realizing a collision was imminent. Shyan never looked up
at the train before it struck her.
Why did Shyan remain on the tracks in the face of an oncoming train? That question,
more than any other, divided the parties below. Frye asserted that Shyan’s bicycle tires became
stuck in the poorly maintained tracks as she made her way through the crossing. Photographs
admitted at trial revealed large gaps in the crossing in which a bicycle tire could have become
lodged.
Defendants advanced a different narrative, one that turned on Shyan’s mental state.
Defendants elicited testimony indicating that Shyan was struggling with school and was at risk of
having to repeat eighth grade. She also struggled with weight problems. At the time of her
death, she was taking Adderall for ADHD and Celexa to offset Adderall’s side effects. An
autopsy found Celexa present in Shyan’s liver.
No. 18-2056 Frye v. CSX Transp., Inc. Page 4
Throughout the proceedings below, Defendants emphasized that suicidal ideation was a
potential side effect of the medication Shyan was taking. Frye responded with a motion in
limine to exclude testimony of this kind at trial, describing it as irrelevant and substantially more
prejudicial than probative. The district court denied the motion but also instructed Defendants to
lay the proper foundation for the testimony at trial. During the ensuing trial proceedings,
Defendants proffered the testimony of Dr. Scott Somerset, who performed the autopsy, and Dr.
Bradford Hepler, the Wayne County toxicologist, to describe Celexa’s potential side effects.
Both doctors testified that Celexa is an anti-depressant capable of causing suicidal thoughts in
children consistent with warnings issued by both the Food and Drug Administration and the
drug’s manufacturer. The district court admitted the testimony.
B. The District Court Enters Summary Judgment For Gallacher, And The
Remaining Defendants Proceeded To Trial.
Prior to trial, Defendants moved for summary judgment on all issues. The district court
entered summary judgment in favor of Gallacher, the conductor, rejecting Frye’s argument that
CSX’s operating procedures, which assigned the conductor responsibility to assist the engineer
in stopping the train, created a legal duty to do so on the part of the conductor. The district court
found that Frye did not argue that Gallacher was under any state-law duty to stop the train
independent of the operating procedures; nor did she cite any Michigan authorities to that effect.
As to the remaining Defendants, the district court concluded that Frye had abandoned all
but four of her claims—two against CSX, one for failing to slow the train and another for failing
to sound the train horn properly, and two against Conrail, one for failing to maintain the crossing
and another for failing to train employees regarding inspection and repair of the crossing. The
district court concluded that no reasonable jury could find that CSX failed to sound the train horn
properly and accordingly entered summary judgment on that claim. The remaining claims were
allowed to proceed to trial.
During voir dire, Frye moved to strike Jay Lodge, a potential juror, for cause. Frye’s
motion was based on Lodge’s ownership of a consulting company that did business with the
Department of the Army. Although Lodge was party to a non-disclosure agreement with the
government regarding his business, he explained in general terms that his company assists the
No. 18-2056 Frye v. CSX Transp., Inc. Page 5
federal government in soliciting tenants for unused railyard and storage facilities in government-
owned ammunition plants. While some of those prospective tenants are railroad companies,
Lodge’s company did not have a direct financial interest in whether prospective tenants
ultimately entered into a lease with the government. On multiple occasions, the district court
asked Lodge whether he had a financial interest that would prevent him from being a fair and
impartial juror. Each time he responded that he did not. The district court denied Frye’s motion
to strike Lodge for cause, but he was later discharged when Frye used a peremptory challenge to
strike him.
During the trial’s evidentiary phase, Frye attempted to introduce photographs of the
crossing after it had been resurfaced following the accident. The resurfacing was done pursuant
to an order of the Michigan Department of Transportation. The district court, however, excluded
those photographs, finding them to be inadmissible evidence of subsequent remedial measures.
C. Following Instructions And Deliberations, The Jury Returns A Verdict For
Defendants.
At the close of evidence, the district court instructed the jury on the law to apply to the
evidence adduced at trial. Among those instructions was one requested by Defendants (and
commonly given in Michigan train collision cases) regarding the duty of a train engineer.
Consistent with Michigan law, the jury was instructed that engineers are entitled to presume that
a person standing on railroad tracks will move off in time to avoid a collision:
Until it becomes apparent otherwise, a train engineer is entitled to presume that a
person on the tracks will get off or that a person approaching the tracks will stop
in time to avoid the danger. An engineer may also assume that a person on or
near the tracks will exercise ordinary care. When a person is on the tracks, as
opposed to approaching them, a train engineer is bound to slow or stop the train
for those who are apparently unaware of the danger and do not hear or notice
warning signals.
In view of that instruction, Frye requested that the district court also give Michigan Civil
Jury Instruction 10.07, a more general instruction sometimes given in tort cases involving
children. It would have instructed the jury to impose a higher duty of care on a defendant that
had reason to believe children may be in the vicinity:
No. 18-2056 Frye v. CSX Transp., Inc. Page 6
The law recognizes that children act upon childish instincts and impulses. If you
find the defendant knew or should have known that a child or children were or
were likely to be in the vicinity, then the defendant is required to exercise greater
vigilance, and this is a circumstance to be considered by you in determining
whether reasonable care was used by the defendant.
The district court declined to give that instruction, finding that it was not applicable to cases
involving train collisions in light of the more specific instruction regarding train crews.
Nevertheless, the district court, believing that Frye was entitled to some instruction regarding
Shyan’s status as a minor, instructed the jury to hold Shyan to the standard of care expected of a
reasonable thirteen-year-old under the circumstances:
It was the duty of Frye’s decedent, Shyan Frye, in connection with this
occurrence, to use ordinary care for her own safety. A minor is not held to the
same standard of conduct as an adult. When I use the words “ordinary care” with
respect to Shyan Frye, I mean that degree of care which a reasonably careful
minor of the age, mental capacity and experience of Shyan Frye would use under
the circumstances which you find existed in the case. It is for you to decide what
a reasonably careful minor would do or would not do under such circumstances.
At the close of trial, the jury found for Defendants on all claims. As to CSX, the jury
found that it was not negligent. As to Conrail, the jury found that while the company was
negligent, its negligence was not a proximate cause of Shyan’s death. The district court entered
judgment on the verdict.
Frye filed a motion for a new trial. In it, she challenged (1) the admission of testimony
regarding Celexa’s side effects, (2) the district court’s refusal to give Michigan Civil Jury
Instruction 10.07, (3) the district court’s entry of summary judgment in favor of Gallacher,
(4) the exclusion of photographs of the resurfaced crossing, and (5) the district court’s refusal to
strike potential juror Lodge for cause. The district court denied the motion. This timely appeal
followed.
II. ANALYSIS
A. The Evidence of Celexa’s Potential Side Effects Was Properly Admitted.
We review a trial court’s evidentiary ruling under an abuse of discretion standard. Ayers
v. City of Cleveland, 773 F.3d 161, 169 (6th Cir. 2014). Generally speaking, we will overturn a
No. 18-2056 Frye v. CSX Transp., Inc. Page 7
district court’s decision to admit or exclude evidence only if we are firmly convinced of an error
below. Id.Defendants sought to admit the Celexa side-effect evidence on the grounds that it assisted
the jury in explaining Shyan’s behavior on the day of the accident. Frye argues that the evidence
should have been excluded on relevance grounds under Federal Rules of Evidence 401 and 402
or, alternatively, as more prejudicial than probative under Federal Rule of Evidence 403.
We disagree.
1. The Side-Effect Evidence Was Relevant Under Federal Rule Of Evidence 401.
Federal Rule of Evidence 401 instructs that evidence is relevant if it has any tendency to
make a fact of consequence in determining the action more or less probable. As indicated by its
use of the phrase “any tendency,” the Rule 401 standard is extremely liberal. Id. And it is
satisfied here. Trial testimony revealed that Shyan stood on or near the tracks for at least 19
seconds (and up to 40 seconds) while a train was headed in her direction. Whether her decision
could have been impacted by suicidal thoughts caused by the use of Celexa plainly had at least
some probative value in explaining why Shyan remained in the train’s path. This is all that Rule
401 requires.
2. The Side-Effect Evidence Was Not More Prejudicial Than Probative Under
Federal Rule Of Evidence 403.
Unless expressly proscribed by another evidentiary rule, relevant evidence is admissible by
operation of Federal Rule of Evidence 402. Frye says such admission is proscribed here by
application of Federal Rule of Evidence 403. That rule, of course, allows a trial court to exclude
relevant evidence if its probative value is substantially outweighed by the risk that it may
unfairly prejudice one of the parties. Id. With respect to the first aspect of the weighing
analysis, we are confident of the evidence’s probative value. That Shyan could have been
experiencing suicidal thoughts as a result of taking Celexa offers a plausible explanation for why
she may have stood on the tracks for up to 40 seconds prior to being struck by an oncoming train.
In response, Frye argues that whatever the Celexa evidence’s probative value may have
been, its admission was deeply and unfairly prejudicial to her case. She cites two cases to
No. 18-2056 Frye v. CSX Transp., Inc. Page 8
support the point. They are two out-of-circuit decisions, one state, one federal, however, and
thus non-binding. More than that, they are easily distinguishable, primarily because they
involved accidents where, unlike here, the plaintiff’s conduct or state of mind was largely
irrelevant.
Ratner v. General Motors Corp. addressed a car crash allegedly caused by a defective
accelerator. 241 N.J. Super. 197, 205–06 (1990). The defendant manufacturer sought to
introduce evidence that the plaintiff had been taking prescribed medication to treat her
hypertension. And, after establishing that fact, the defendant then wanted to list for the jury the
medication’s potential side effects. The trial court barred admission of the side-effect evidence.
But in doing so, the court emphasized the way in which that case was very different from this
one. The medical evidence at issue there (unlike here) had no tendency to prove or disprove the
primary issue in the case: whether the accelerator was defective. Absent from the record was
any foundational evidence that the plaintiff might have suffered from side effects that could have
been a contributing cause of the accident. But had such evidence existed, the side-effect
evidence may well have been admitted. After all, as the court observed, “[t]he question of its
admissibility in a particular case is fact sensitive.” Id.Here, the record below favored admission. The pivotal issue at trial was not whether any
component of the train was defective, but rather why Shyan remained on the track. Foundational
evidence established that she did so for up to 40 seconds. That evidence coupled with evidence
about her physical and mental health issues made her state of mind squarely relevant to the fact
finder. For that reason, evidence showing the effect her medication may have had on her mental
state was properly admissible.
Equally unavailing is Celaya v. Hankook Tire America Corp., No. CV-11-00429, 2016
WL 10611188 (D. Ariz. March 30, 2016). In Celaya, the decedent was killed when his car
overturned after a tire tread detachment. While the district court there prohibited the defendants
from introducing a toxicology report showing that the decedent had trace amounts of marijuana
and multiple pain medications in his system at the time of the crash, it did so primarily because
the case turned on the faulty manufacturing of a tire, not the decedent’s potential drug use.
Understandably, the court was concerned about the special prejudice a plaintiff suffers when
No. 18-2056 Frye v. CSX Transp., Inc. Page 9
generic toxicology evidence, with little or no potential to explain material facts, is introduced in
the context of a product defect case.
Today’s case, on the other hand, turns largely on the actions of the decedent, not the
defendants. Frye was permitted to introduce evidence of gaps in the crossing surface in which
Shyan’s bicycle tires may have become stuck to explain to the jury why she would have stood in
the path of an oncoming train. Likewise, Defendants were properly permitted to explain that
same conduct by introducing evidence that Shyan may have been having suicidal thoughts as a
result of taking Celexa. Frye is correct to note that one cannot know with certainty that Shyan
was in fact experiencing these side effects. But the same can be said of Frye’s theory regarding
the bicycle tires. And in any event, certainty is not the governing standard for admission under
the Federal Rules of Evidence.
All told, the district court did not abuse its discretion in admitting the Celexa evidence.
The court took note of Frye’s concerns about prejudice by instructing Defendants to lay a proper
foundation before introducing the Celexa side-effect evidence. Defendants complied with these
instructions at trial. The great deference afforded to trial courts in making evidentiary decisions
was not exceeded in this case. Broad Street Energy Co. v. Endeavor Ohio, LLC, 806 F.3d 402,
409 (6th Cir. 2015).
B. The District Court Did Not Err By Refusing To Give Michigan Civil Jury
Instruction 10.07.
Next, Frye contends that the district court erred by failing to give Michigan Civil Jury
Instruction 10.07, a general instruction regarding a child’s “instincts and impulses.” Although
state substantive law governs the content of jury instructions in diversity cases, federal
procedural law governs the review of the propriety of those instructions. King v. Ford Motor
Co., 209 F.3d 886, 897 (6th Cir. 2000).
Individual jury instructions are not reviewed in isolation. Johnson Controls, Inc. v. Jay
Indus., Inc., 459 F.3d 717, 726 (6th Cir. 2006). Rather, we review the entire body of
instructions, and we reverse only when three criteria are met: “(1) the omitted instructions are a
correct statement of the law; (2) the instruction is not substantially covered by other delivered
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charges; and (3) the failure to give the instruction impairs the requesting party’s theory of the
case.” Id. (quoting Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445, 449 (6th Cir. 2000)).
We review a district court’s refusal to give a requested jury instruction for an abuse of discretion,
id., and review de novo its determination regarding the legal accuracy of those instructions.
Smith v. Joy Techs., Inc., 828 F.3d 391, 397 (6th Cir. 2016).
It is a close question whether Frye’s proposed instruction fails the first criteria.
Instruction 10.07, while correct as a general presumption in tort cases involving children, runs up
against a more specific presumption applicable to this case—one addressing train accidents. See
Tomes v. Detroit, T. & I.R. Co., 215 N.W. 308, 309–10 (Mich. 1927). That is: Until it becomes
apparent otherwise, train crew members can reasonably assume a person on the tracks—adult or
child—will move off the tracks in time to avoid a collision. See id.Tomes is factually similar to this case. In Tomes, a thirteen-year-old girl was struck and
killed by a train while walking on tracks near her home. As the girl suffered from no apparent
disability and there was no obstruction of the girl’s view at the crossing, the court found the
defendant railway free of negligence. Absent a clear indication otherwise, said the Michigan
Supreme Court, the engineer there could reasonably assume the girl would move off the tracks
before the collision. Id. That is true under Michigan law for children even younger than the
victim in Tomes. See Trudell v. Grand Trunk Ry., 85 N.W. 250, 252–53 (Mich. 1901) (finding
that it was reasonable for a train engineer to assume that a seven-year-old would step off the
track in time to avoid a collision); see also Berlin v. Chicago & N.W. Ry., 246 N.W. 191, 191
(Mich. 1933) (finding the same regarding a nine-year-old).
So too here. Though Shyan was a minor, there is nothing in the record to suggest she was
incapable of recognizing the danger posed by an oncoming train. Her view at the crossing was
unobstructed, the train’s horn sounded, and the crossing’s signal bells and lights activated.
Under these circumstances, the train crew, like the train crew in Tomes, was under no duty to
stop the train until it was clear Shyan would not step away from the track. And by that time, the
collision was unavoidable, given the great difficulty in stopping a train.
No. 18-2056 Frye v. CSX Transp., Inc. Page 11
Compelled by Michigan law to instruct the jury as it did regarding reasonable
assumptions made by train crews, the district court nevertheless did not ignore Frye’s request
entirely. Rather, it gave a modified version of Frye’s requested instruction, explaining to the jury
that Shyan should be held only to the standard of care applicable to a thirteen-year-old under the
circumstances. Frye was entitled to no more under Michigan law.
C. The District Court Properly Entered Summary Judgment In Favor Of
Conductor Gallacher.
Frye also challenges the district court’s entry of partial summary judgment in favor of
Gallacher, the train conductor. We review the district court’s entry of summary judgment de
novo. Adair v. Charter Cty. of Wayne, 452 F.3d 482, 486 (6th Cir. 2006).
We can quickly resolve two threshold appealability challenges made by Defendants. The
first is Defendants’ contention that Frye’s notice of appeal was untimely. We echo the notion
that appeal deadlines must be taken seriously. From time to time, those deadlines can trip up an
appealing party, even in ways fatal to an appeal. See Bowles v. Russell, 551 U.S. 205, 214
(2007). But this is not one of them. The time to appeal partial summary judgment does not
begin to run until the district court either enters final judgment in the case or certifies the partial
order for immediate appeal. See Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 513–14
(6th Cir. 2001) (construing Fed. R. Civ. P. 54(b)). Frye’s time to appeal commenced only after
the district court denied her motion for a new trial on August 19, 2018. Her September 13, 2018
notice of appeal was thus timely. Fed. R. App. P. 4(a)(1)(A).
Second, Defendants contend that Frye forfeited any appellate arguments with respect to
Gallacher by failing to object to a jury instruction that explicitly stated that Gallacher was not
liable. But the reason Frye did not object is a simple one: The district court had already entered
summary judgment in favor of Gallacher. In that posture, Frye was not required to object to a
prior definitive ruling by the district court. See K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d
171, 174–75 (6th Cir. 1996) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 118–20
(1988) (“Although the same legal issue was raised both by those [motions for judgment as a
matter of law] and the jury instruction, the failure to object to an instruction does not render the
instruction the law of the case for purposes of appellate review. . . .”) (internal quotations and
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citations omitted)); see also Fed. R. Evid. 103(b) (“Once the court rules definitively on the
record—either before or at trial—a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.”).
With these procedural hurdles cleared, we turn to the merits of Frye’s challenge to the
district court’s entry of summary judgment in favor of Gallacher.
1. CSX’s Internal Operating Procedures Did Not Place A Legal Duty Upon
Gallacher To Slow Or Stop The Train.
Under Michigan law, before liability in tort can be attributed to a defendant, the plaintiff
must establish that a legal duty governed the defendant’s conduct. Romain v. Frankenmuth Mut.
Ins. Co., 762 N.W.2d 911, 913–14 (Mich. 2009). At summary judgment, Frye argued that
CSX’s internal operating procedures and code of conduct for employees placed a legal duty upon
Gallacher to stop the train before impact. But that argument was easily, and correctly, rejected
by the district court, given the perverse incentives such a rule would create. Frye v. CSX
Transp., Inc., No. 2:14-cv-11996, 2017 WL 4120102, at *7 (E.D. Mich. Sept. 18, 2017). After
all, as the Michigan courts have recognized, if internal policies could serve as a basis for a legal
duty, defendants might well avoid implementing such policies for fear of creating liability where
none would otherwise exist. Zdrojewski v. Murphy, 657 N.W.2d 721, 729 (Mich. App. 2002);
see also Buczkowski v. McKay, 490 N.W.2d 330, 332 n.1 (Mich. 1992) (“Imposition of a legal
duty on a retailer on the basis of its internal policies is actually contrary to public policy. Such a
rule would encourage retailers to abandon all policies enacted for the protection of others in an
effort to avoid future liability.”). Michigan courts would not impose a duty upon Gallacher on
the basis of CSX’s operating procedures, and we likewise decline to do so as a matter of
Michigan law.
2. Frye Forfeited Any Argument That Michigan Law Independently Imposed A Duty
On Gallacher To Stop The Train.
Frye alternatively asks us to find that Michigan law independently imposed a duty upon
Gallacher to avoid the collision. For us to do our part, however, Frye must first have done hers.
She needed to make a timely request to the district court to rule upon the issue. Her failure to do
so dooms her arguments on appeal. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th
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Cir. 2008) (holding that issues not fully presented to the district court are deemed forfeited on
appeal unless exceptional cases or particular circumstances are present, or the rule would
produce a plain miscarriage of justice).
By way of background, in her opposition to Defendants’ motion for summary judgment,
Frye argued that CSX’s internal operating procedures placed Gallacher under a legal duty to help
stop the train. She did not argue that Michigan law independently placed a similar duty upon
Gallacher; nor did she cite Michigan authority for that proposition.
Raising one argument did nothing to preserve another. See Sigmon Fuel Co. v. Tenn.
Valley Auth., 754 F.2d 162, 164 (6th Cir. 1985). In Sigmon, this Court refused to consider the
plaintiff’s argument on appeal that he was entitled to prejudgment interest and attorney’s fees
under federal common law. Before the district court, the plaintiff made statutory arguments for
recovering the fees and interest. But he did not mention federal common law as an additional
ground for recovery. And that silence spoke volumes, at least when it came time to resolve
plaintiff’s subsequent appeal. Because the plaintiff did not make his common law argument
below, we held that the argument was forfeited on appeal. Id. Frye was similarly required to
articulate each specific legal basis for imposing a duty upon Gallacher that she would like to
pursue on appeal.
Sometimes, a party may make a vague or incomplete reference to an argument below and
then seek to raise that argument on appeal. Such cases can raise different questions regarding
preservation and forfeiture. See, e.g., Thurman v. Yellow Freight Sys., Inc., 97 F.3d 833, 835
(6th Cir. 1996) (holding that vague references to an issue fail to preserve it for appeal). But
thanks to the district court, there is no confusion here whether Frye made her state law argument
below. She did not. In its order granting summary judgment, the district court explained that it
understood Frye as arguing that the only duty placed upon Gallacher came from CSX’s internal
operating procedures: “Frye’s claim against Gallacher rests solely on CSX’s own rule that
imposed upon Gallacher a duty to act if Fischer failed to do so.” Frye neither asked the district
court to reconsider its ruling nor otherwise objected that her argument had been misunderstood
until her motion for a new trial—after the case was tried to a jury and a verdict was returned for
Defendants.
No. 18-2056 Frye v. CSX Transp., Inc. Page 14
Because Frye argued that Gallagher had a legal duty to slow the train under Michigan law
for the first time in her motion for a new trial, the district court properly deemed the argument
untimely. A plaintiff typically may not wait until the district court has already entered judgment
to raise new arguments. See Flowers, 513 F.3d at 552–53; Thurman, 97 F.3d at 835. We
therefore decline to reach the merits of Frye’s second argument.
D. Any Error By The District Court In Refusing To Admit Photographs Of The
Resurfaced Crossing Was Harmless.
Frye argues that the district court erred in invoking Federal Rule of Evidence 407, which
limits the grounds for admitting evidence of “subsequent remedial measures,” to exclude from
evidence photographs of the resurfaced crossing. A trial court’s evidentiary decisions are
reviewed for abuses of discretion and are not lightly overturned. Nolan v. Memphis City Sch.,
589 F.3d 257, 264–65 (6th Cir. 2009).
Ordinarily, evidence of a subsequent remedial measure is not admissible at trial to
establish a party’s negligence or culpable conduct. See Fed. R. Evid. 407; see also Yates v.
Ortho-McNeil-Janssen Pharm, Inc., 808 F.3d 281, 292 (6th Cir. 2015). That is so, we and many
others have observed, because the risk of such admission might discourage a party from
otherwise remedying a potential safety hazard. Smith v. United Broth. of Carpenters and Joiners
of Am., 685 F.2d 164, 169–70 (6th Cir. 1982) (Keith, J., concurring); see also Advisory
Committee’s Notes on Fed. R. Evid. 407. Whatever harm may have been caused already, and
regardless who is at fault for that harm, a party should not be dissuaded from minimizing the risk
of future harm for fear that such remedial measures will be used against the party to establish its
liability for the originating accident. Put more simply, a good deed should go unpunished.
Resurfacing a hazardous railroad crossing following an accident might strike one as a
quintessential subsequent remedial measure. But Frye, to her credit, has a counterpoint. The
remedial measure, she notes, seemingly was not done voluntarily, but rather by order of the
Michigan Department of Transportation, a regulatory authority. And where a subsequent
remedial action is compelled, not voluntary, the remedying party has not undertaken a good
deed, at least not without compulsion.
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But even if Frye could show an abuse of discretion in excluding photographs of the
resurfaced crossing (and we offer no opinion on the matter), any error in excluding them was
harmless. See Harnden v. Jayco, 496 F.3d 579, 583 (6th Cir. 2007) (quoting Fed. R. Civ. P. 61)
(finding evidentiary ruling harmless if it “does not affect the substantial rights of the parties.”)).
If admitted, the photographs would have served only to help prove that Conrail was negligent in
maintaining the crossing. But the jury already found that Conrail was negligent. And critically,
it also found that Conrail’s negligence was not a proximate cause of Shyan’s death.
It is hard to see how pictures of the crossing as resurfaced one year after the incident
would show anything about causation at the time of the accident. That is especially true when,
as revealed by the jury’s verdict, pictures of the crossing from the time of the incident did not
establish causation. Equally true, if admitted, the photographs of the resurfaced crossing
presented added risk of prejudice and confusion. Under these circumstances, any potential error
regarding application of Rule 407 was harmless.
E. The District Court Did Not Abuse Its Discretion In Refusing To Strike
Prospective Juror Lodge For Cause.
Finally, Frye contends that the district court erred by denying her motion to strike Juror
Lodge for cause. Voir dire revealed that Lodge owned a consulting company that worked
indirectly with railroad companies like CSX. Although Lodge was stricken peremptorily and
took no part in the jury’s deliberations, Frye argues that the fact she was forced to use a
peremptory challenge on Lodge constitutes reversible error. The district court’s decision to
exclude a juror for cause is reviewed for an abuse of discretion. United States v. Guzman,
450 F.3d 627, 629 (6th Cir. 2006).
Jurors are presumed to be impartial, a presumption that can be overcome where the
moving party can show grounds for actual bias. Id.; Treesh v. Bagley, 612 F.3d 424, 437 (6th
Cir. 2010). We see nothing in the record, however, to suggest that Lodge was actually biased in
favor of Defendants. In response to the district court’s questions, Lodge explained that his
consulting company merely provided staffing support in leasing unused government railyard and
storage facility space. He did not have a financial interest in the actual leasing of the space by
No. 18-2056 Frye v. CSX Transp., Inc. Page 16
rail companies. Lodge further indicated that his ownership of the business would not interfere
with his ability to be an impartial juror.
In the absence of a finding of actual bias, Frye contends that the district court
alternatively should have found implied bias. The doctrine of implied bias, if it applies at all,
applies only in extreme cases in which the relationship between the juror and some aspect of the
litigation makes it “highly unlikely that the average person could remain impartial.” Treesh,
612 F.3d at 437; see also English v. Berghuis, 900 F.3d 804, 816 (6th Cir. 2018) (noting that the
“continued vitality of the [implied bias] doctrine has been called into question by the Supreme
Court.”). Treesh lists as examples of implied bias scenarios in which a juror is related to one of
the parties or was directly involved in the incident at issue in the case. 612 F.3d at 437. Those
examples are a far cry from this case. The mere possibility of indirect business dealings with
companies like CSX would not make the average person highly unlikely to consider the case
impartially. See id. (finding no implied bias where the defendant was the former teacher of one
of the jurors).
At most, Frye’s cases stand for the proposition that present and direct financial interests
may, depending on the circumstances, make the average person highly unlikely to act
impartially. For instance, in Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122–23 (10th Cir.
1995), a slip-and-fall case filed against Wal-Mart, the Tenth Circuit held that bias could be
presumed where a potential juror was a stockholder in Wal-Mart and his wife was a Wal-Mart
employee. Yet even in that cozy setting, any error in not excluding the juror at issue was deemed
harmless, where (as here) the plaintiff subsequently used a peremptory challenge to exclude the
juror. Id.Equally unavailing is Frye’s argument that Lodge’s non-disclosure agreement with the
government may have concealed evidence of bias. As a factual matter, that agreement did not
prevent Lodge from describing his business activities in terms sufficient to identify any potential
financial interest in the case. It bears repeating that jurors are presumed to be impartial. Absent
any concrete evidence of prejudice, the presumption of impartiality stands. United States v.
Maxwell, 160 F.3d 1071, 1077 (6th Cir. 1998). So does the verdict below.
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III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.