Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1988)

MEMORANDUM^* 

Oscar Martinez brought suit against his employer, the Los Angeles Junction Railroad (LAJ), and its parent company, The Atchison, Topeka and Santa Fe Railway Company (AT & SF) for damages for personal injuries pursuant to the Federal Employers' Liability Act (FELA). Martinez appeals the grant of summary judgment in favor of AT & SF, and the judgment in favor of LAJ.

FACTS

Martinez was employed by LAJ as a student foreman. From February 11, 1985 through February 14, 1985, he assisted in spraying the railroad's right-of-way with herbicides used to kill weeds along the way. Martinez did not complain of any problems during this time. On February 28, 1985, however, Martinez became ill. On March 1, 1985, he was admitted to the hospital. He was diagnosed as having quadraplegia, secondary to polyneuropathy, possibly secondary to viral infection. Martinez ultimately became the victim of a placcid paralysis. He has developed an inability to speak and will be confined to a wheelchair for the rest of his life.

Martinez claims the herbicide used in the spraying, Atratol 90, was highly toxic and caused his injuries. He alleged that both LAJ and AT & SF were his employers within the meaning of FELA, and that they were negligent in failing to provide a safe work place, leading to his exposure to the Atratol 90 and his injuries.

AT & SF claimed it was not Martinez's employer at the time of the spraying and was not liable under FELA. The district court denied a motion made by Martinez seeking to amend the complaint to include allegations of common law negligence, and granted AT & SF's motion for summary judgment on the grounds AT & SF was never Martinez's employer.

Martinez proceeded to trial against LAJ. During the course of the trial, the district judge refused several of Martinez's evidentiary motions. The jury reached a verdict in favor of LAJ.

Martinez timely filed a motion for a new trial. The court denied this motion on December 22, 1988. Martinez appeals.

DISCUSSION

On December 22, 1986, a hearing on the motion for a new trial was held. The court denied this motion in the presence of Martinez's counsel. The district court docket sheet reflects the following notation:

"12-22-86 a.m. 84. Pltfs motn for new trial; Crt denies motn. M.O. fc." (ER Tab B). Although signed and docketed by the clerk, the entry contains no filing or other stamp of the district court. There is no indication that the clerk has ever mailed copies of this document to the parties. Martinez has 30 days in which to file his appeal from the date of entry of the order denying his motion for a new trial. Fed. R. App. P. 4(a) (4). Martinez did not file his notice of appeal until February 20, 1987, 60 days after the court denied his motion. AT & SF and LAJ (collectively referred to as appellees) claim the notice of appeal is untimely. Martinez claims his notice of appeal is not untimely because the order denying the motion has yet to be entered.

A judgment or order is not entered within the meaning of Fed. R. App. P. 4(a) (1) or (4) unless it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Calhoun v. United States, 647 F.2d 6, 8 (9th Cir. 1981); Fed. R. App. P. 4(a) (6). Rule 58 requires that a judgment be set forth on a separate document to be effective¹  and that it be properly entered as provided for in Rule 79(a).² 

Appellees argue the court's order was entered in compliance with Rule 58. For support, they cite Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 755 (9th Cir.), cert. denied, 479 U.S. 825 (1986), where we found a minute order prepared at the direction of the district judge and noted on the civil docket to constitute a separate document pursuant to Rule 58. We concluded:

The copy of the minute order with its language "IT IS ORDERED" clearly put plaintiff's counsel on notice that an order had been entered against his client. Faced with this language and the presence of a file stamp on the document, counsel should have checked the court's record if he had any doubt about whether the order was signed rather than allow the period of appeal to expire and risk the possibility that a signed order in fact had been entered.

Beaudry, 780 F.2d at 755. We find the circumstances in Beaudry to be distinguishable from the underlying circumstances of this appeal. In Beaudry, the clear language "IT IS ORDERED" was used, a file stamp was used, and copies were mailed to counsel indicating the clerk treated the document as an order. The court found counsel should have been on notice that an order had been entered against his client. In Martinez's case, none of these circumstances--or their equivalent--exist.

We find the facts of this case are more analogous to the facts in Calhoun. In Calhoun, the document at issue stated that the " ' [m]otion [was] argued and ordered denied.' " 647 F.2d at 8 (brackets in original). The document was signed and docketed by the clerk, but contained no filing or other stamp of the district court. Nor were copies mailed to the parties. We found the court's notation failed to comply with the separate "order" requirement of Rule 58. Id. at 9. "For such a critical step in the appellate process as the filing of a notice of appeal, we will strictly enforce the requirement that there be a separate judgment or order and proper entry of the same before we will hold an appeal to be untimely." Id. at 10.

Based upon the foregoing, we find that the separate document requirement of Rule 58 was not satisfied.³  Accordingly, the order denying Martinez's motion for new trial was not entered in compliance with Fed. R. App. P. 4. Therefore, the 30-day notice period never commenced, and Martinez's notice is timely.

We must consider the effect of the noncompliance with Fed. R. App. P. 4 and determine whether we can accept jurisdiction or whether we should remand for formal entry of an order denying the motion for new trial. "Although a timely notice of appeal is jurisdictional, the existence of a properly entered separate judgment is not a necessary prerequisite to appellate jurisdiction under 28 U.S.C. § 1291." Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987) (citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 383-84 (1978) (per curiam); Taylor Rental Corp. v. Oakley, 764 F.2d 720, 722 (9th Cir. 1985)). An appellate court can properly assume jurisdiction to review a final judgment where the district court clearly evidenced its intent that the opinion and order from which an appeal was taken would represent the final decision in the case. Bankers Trust Co., 435 U.S. at 385 ("Wheels would spin for no practical purpose.") Here, the district court evidenced an intent that the order from which the appeal was taken was final. A minute order was entered. Furthermore, local rules require the prevailing party to file orders. We, therefore, find that this court may assume jurisdiction over this appeal.

Martinez filed a motion to amend his complaint, seeking to bring AT & SF into the lawsuit under common law negligence and to assert wanton and willful conduct and a request for punitive damages. Federal Rules of Civil Procedure provide that a party may amend his pleading by leave of the court, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Rule 15 also provides that amended pleadings may relate back to earlier pleadings if certain criteria are met. The basic inquiry is whether the opposing party has been put on notice about the claim or defense raised by the amended pleading. Admiralty Fund v. Hugh Johnson & Co., Inc., 677 F.2d 1301, 1314 (9th Cir. 1982); Fed. R. Civ. P. 15(c). In Hurn v. Retirement Fund Trust, 648 F.2d 1252, 1254 (9th Cir. 1980), this court enumerated the basic criteria for determining the propriety of a motion for leave to amend. The court stated: "The propriety ... is generally determined by reference to several factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party." We review the trial court's decision to deny Martinez's motion for leave to amend his complaint for abuse of discretion. Id.

AT & SF argues it would be greatly prejudiced by an amendment. First, the common law negligence theory requires a greater quantum of proof of negligence by Martinez. This would require discovery into facts which were not pursued in the earlier FELA action. Considerable discovery on the allegation of wanton, willful conduct would be required. Furthermore, punitive damages are not permitted in FELA cases. Second, Martinez had notice at the time the Answer was served that AT & SF was contending it was not an employer for FELA purposes. He failed to timely respond. AT & SF was not put on notice that it would have to defend against these claims until such time as it would be extremely prejudicial for it to defend itself. Accordingly, we find the district court did not abuse its discretion in denying the motion to amend.

C. The Grant of Summary Judgment in Favor of AT & SF

Martinez contends the district court erred in dismissing AT & SF from the FELA pleading by granting AT & SF's motion for summary judgment. Appellees submit there was only one "triable" issue--whether AT & SF was Martinez's employer as is required in an FELA action. Since Martinez's counsel admitted in his declaration to Martinez's opposition to AT & SF's motion for summary judgment that AT & SF is not Martinez's employer (CR 55), no triable issue of fact existed. Moreover, the court instructed that any negligence of AT & SF was attributable to LAJ. Accordingly, the district court did not err in granting summary judgment on this basis.

Martinez contends Dr. Scott's testimony, which ruled out a viral basis for Martinez's symptoms and stated the symptoms were consistent with exposure to Atratol 90, should have been admitted as evidence on the causal effect of Atratol on his paralysis. Error may not be predicated upon a trial judge's exclusion of evidence unless a substantial right of the party is affected and the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. United States v. Cutler, 676 F.2d 1245, 1249 (9th Cir. 1982); Fed.R.Evid. 103(a) (2). Martinez argues a substantial right was affected because this testimony dealt with the central issue of causation.

The Federal Rules of Evidence set forth when an expert witness may testify: "If scientific technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise." Fed.R.Evid. 702. The district court excluded Dr. Scott's testimony on the grounds that he was not a qualified expert from the qualifications listed at the beginning of his deposition.

Based upon the qualifications that were offered, we find the district court's ruling was predicated upon sound discretion. Dr. Scott is not a medical doctor. Whether he was qualified to opine that Martinez's illness was caused by the herbicides was not established. Furthermore, there were other doctors who testified as to the causal effects of Atratol 90. No substantial right was affected in light of all the other evidence. Accordingly, we conclude the court's exclusion of Dr. Scott's deposition was not manifestly erroneous.

E. Refusal to Permit a Display of Martinez's Injuries to the Jury

The district court on Fed.R.Evid. 403 grounds denied Martinez's request to display his paralysis to the jury because it was just being done for sympathy and was thus more prejudicial than probative. Martinez claims this was error because the display was highly relevant on the critical issue of causation and that this relevancy outweighed any prejudicial effect. Furthermore, Martinez suggests he was never allowed to be identified to the jury and that it was speculative that the jury realized that the individual in the wheelchair was he.

Admitting statistical evidence or conducting in-court experiments may serve a probative purpose that outweighs any prejudicial effect. However, pointing to a person confined to a wheelchair when expert testimony has been offered on causation, could very well be more prejudicial than probative. Testimony from physicians who had examined Martinez was offered. Moreover, Martinez was in view of the jury at all times. Martinez's counsel stated: "We have, your Honor, Mr. Martinez here in the court today...." This indicates that an identification was made. The record does not support a finding that Martinez was never identified.

Based upon the foregoing factors, we find the district court did not abuse its discretion in refusing to permit Martinez to display his injuries to the jury.

F. Presentation of "A Day in the Life" Video

The district court excluded a video tape, which depicted the actual daily post-injury existence of Martinez, on the grounds of redundancy and irrelevancy. After determining that the tape contained an interview of Mrs. Martinez and showed what she had to do to care for him, the court determined this evidence would be cumulative to her in-court testimony. Martinez argues a substantial right was affected because he was not permitted to present unique evidence on the damages aspect of his case.

Although a video may very well be the best illustration of a plaintiff's injury, Fed.R.Evid. 403 gives the court discretion to exclude a film if the film is not necessary to prove or disprove a material fact. Grimes v. Employers Mutual Liability Insur. Co., 73 F.R.D. 607, 610 (D. Alaska 1977). Since the material fact of damages was already testified to by Mrs. Martinez, it was not an abuse of discretion for the court to exclude the video tape.

Martinez contends LAJ argued at trial that except for special occasions, the weed-spraying truck sprayed from nozzles from the end of the truck opposite from the direction the truck was traveling. One contested aspect of causation was Martinez's exposure to Atratol 90. This was affected by the scope and degree of the actual spray during operation. Thus, Martinez argues Rios should have been allowed to rebut LAJ by testifying that he had observed the truck spraying out of both the front and rear ends in Newton, Kansas, with a man on the running board.

Rios' testimony regarding activities in Kansas had little to do with Martinez's exposure to the herbicide in Los Angeles. Rios was not qualified to testify that exposure to the herbicide caused Martinez's illness. Furthermore, the fact that Martinez was exposed to the herbicide and had a white substance on his shoes had already been presented. Based upon these factors, the district court judge was acting within his discretion by excluding this testimony.

After the court ruled against the rebuttal testimony of Mr. Rios, Martinez's counsel indicated that the plaintiff rested. Following the noon recess, Martinez's counsel advised the court that a second rebuttal witness was now available. The court was informed that the witness would testify that he saw a white material on Martinez and that it was like snow on his khaki clothing. The court ruled that the witness should have been called in the case-in-chief and that Martinez had already rested.

The testimony could not further aid the trier of fact in regard to causation. Mr. Brooks could only testify to the fact that he saw white powder on Martinez, not that the white powder caused the paralysis. This testimony would have been cumulative. No substantial right of Martinez was affected. Accordingly, the district court did not abuse its discretion in excluding this testimony.

We find that the district court judge acted within his discretion on all counts and AFFIRM.

AFFIRMED.