                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     APRIL 8, 2008
                                                  THOMAS K. KAHN
                            No. 07-14601
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 05-01203-CV-ODE-1

TORY BANKSTON,


                                                   Plaintiff-Appellant,

                                  versus

NORFOLK SOUTHERN RAILWAY CORPORATION,
NORFOLK SOUTHERN CORPORATION,


                                                   Defendants-Appellees.

                       ________________________

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

                              (April 8, 2008)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       This is Tory Bankston’s appeal from the district court’s final judgment in

favor of Norfolk Southern Railway Corporation and Norfolk Southern Corporation

(collectively “Norfolk Southern”) in this personal injury action. Bankston

contends that the district court made three erroneous evidentiary rulings that entitle

him to a reversal of that judgment and a new trial.1

                                                I.

       In September 2004 Bankston was walking alongside railroad tracks in

Atlanta, Georgia when he was struck by a train operated by Norfolk Southern. As

a result of this accident, Bankston was severely injured and lost both of his legs.

Bankston claims that he was walking at least ten feet away from the tracks when he

was struck and that a pole jutting out from the train snagged his backpack, pulled

him sideways and pinned him against the train. Norfolk Southern disputes that

account, suggesting instead that Bankston was attempting to board the moving

train when the accident occurred.

       In April 2005 Bankston sued Norfolk Southern and an unknown railroad

engineer (under the fictitious name John Doe) in Fulton County Superior Court.



       1
          In his reply brief, Bankston raises an additional issue in passing: “Whether the verdict
and judgment entered in the District Court was supported by the evidence.” Bankston’s initial
brief addressed only evidentiary issues. Because “[i]ssues that are not clearly outlined in an
appellant’s initial brief are deemed abandoned,” Allison v. McGhan Med. Corp., 184 F.3d 1300,
1317 n.17 (11th Cir. 1999), we decline to address this additional question.

                                                 2
Bankston served Norfolk Southern, but he never served the John Doe railroad

engineer. Norfolk Southern removed the case to federal court on diversity

jurisdiction grounds. After the case was removed, the parties conducted discovery

and Norfolk Southern moved for summary judgment. The district court denied

Norfolk Southern’s motion and the case proceeded to a jury trial.

      Before trial, Bankston moved in limine to exclude: (1) the testimony of both

Dr. Walter Ingram and Dr. Vladimir Dadashev that they believed the accident

occurred while Bankston was trying to board a moving train, and a medical report

by Dr. Ingram containing the same explanation of how the accident occurred; (2)

lay opinion testimony by an Atlanta police officer speculating that Bankston was

injured while attempting to cross the train tracks while the train was initially

stopped but then started to move; and (3) evidence of Bankston’s past felony

convictions introduced to impeach his credibility. The district court denied

Bankston’s motion as to the doctors’ testimony, Dr. Ingram’s report, and the

evidence of the past felony convictions. The district court deferred ruling on the

police officer’s lay opinion testimony.

      After hearing the evidence and argument of both parties, the jury returned a

verdict finding that Norfolk Southern was not liable for Bankston’s injuries. The

district court then entered a judgment in favor of Norfolk Southern. Bankston filed



                                           3
this appeal.

                                         II.

      As an initial matter, we must first address our own jurisdiction to hear this

appeal. We posed a jurisdictional question to the parties asking whether the

existence of the unserved John Doe defendant affected the finality of the judgment

in favor of Norfolk Southern. The parties briefed the issue and both contend that

the judgment was a final appealable order. We agree. In Insinga v. LaBella, 817

F.2d 1469 (11th Cir. 1987), we concluded that “where final judgment has been

entered as to all defendants who have been served with process and only unserved

defendants remain, the district court’s order may be considered final under 28

U.S.C. § 1291 for purposes of perfecting an appeal.” Insinga, 817 F.2d at

1469–70; see also Loman Dev. Co. v. Daytona Hotel & Motel Suppliers, Inc., 817

F.2d 1533, 1536 (11th Cir. 1987) (“[F]or the purposes of Rule 54, the unserved

defendants were not yet ‘parties’ and no certification was necessary for the

judgment to become final.”). In this case, judgment has been entered in favor of

the Norfolk Southern entities, the only parties who were served. The district

court’s judgment states that the action is “dismissed on the merits.” Accordingly,

that judgment ended the litigation and is final and appealable.




                                          4
                                          III.

       Turning to the substance of this appeal, Bankston contends that the district

court’s final judgment should be reversed on the ground that the court made three

erroneous evidentiary rulings. We review those rulings only for an abuse of

discretion. Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002).

This review is extremely deferential, see Cook ex rel. Estate of Tessier v. Sheriff of

Monroe County, Fla., 402 F.3d 1092, 1103 (11th Cir. 2005) (“[T]he deference that

is the hallmark of abuse-of-discretion review requires that we not reverse an

evidentiary decision of a district court unless the ruling is manifestly erroneous.

Thus, it is by now axiomatic that a district court enjoys considerable leeway in

making these determinations.” (internal quotation marks and citation omitted)), and

we will reverse only where “a substantial right of the party is affected,” Federal

Rule of Evidence 103(a). Cf. Federal Rule of Civil Procedure 61 (“Unless justice

requires otherwise, no error in admitting or excluding evidence . . . is ground for

granting a new trial, for setting aside a verdict, or for vacating, modifying, or

otherwise disturbing a judgment or order. At every stage of the proceeding, the

court must disregard all errors and defects that do no affect any party’s substantial

rights.”).




                                           5
                                            A.

       Bankston first contends that the district court abused its discretion by

denying his motion in limine to exclude Dr. Ingram’s hospital report, which

contained a description of how the accident occurred, as well as Dr. Ingram’s and

Dr. Dadashev’s testimony on the same subject, on the ground that the report and

testimony were inadmissible hearsay. Bankston argues that the descriptions of the

accident in the doctors’ testimony and in Dr. Ingram’s report are inadmissible

hearsay and that the statements are neither admissions of a party opponent nor

statements made for the purpose of medical diagnosis or treatment.

        Hearsay is typically not admissible unless an exception applies. Fed. R.

Evid. 802. Federal Rule of Evidence 801(d) provides that a “statement is not

hearsay if . . . [t]he statement is offered against a party and is . . . the party’s own

statement.” Fed. R. Evid. 801(d)(1). Rule 803(4) excludes from the hearsay rule

“[s]tatements made for purposes of medical diagnosis or treatment and describing

medical history, or past or present symptoms, pain, or sensations, or the inception

or general character of the cause or external source thereof as reasonably pertinent

to diagnosis or treatment.” Fed. R. Evid. 803(4).

       We need not reach Bankston’s argument, because even if we were to

conclude that the district court’s denial of Bankston’s motion on this point were



                                             6
erroneous, that error would be harmless. First, Bankston did not seek in his motion

in limine to exclude another medical report, authored by Dr. Dadashev, which

contained an almost verbatim description of how the accident occurred. Nor did

Bankston object on hearsay grounds when Norfolk Southern offered Dr.

Dadashev’s report into evidence and the district court admitted it. A party must

make a timely objection to preserve an evidentiary issue for appellate review. Fed.

R. Evid. 103(a)(1); United States v. Houston, 456 F.3d 1328, 1338 (11th Cir.

2006); United States v. Zinn, 321 F.3d 1084, 1090 n.7 (11th Cir. 2003); Irving v.

Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir. 1998). Because Dr. Dadashev’s

report was not objected to on hearsay grounds, and because it contained essentially

the same statements explaining how the accident occurred, the jury would have had

the same information before it even if the district court had granted Bankston’s

motion in limine with regard to Dr. Ingram’s report and both doctors’ testimony.

      Moreover, the district court’s decision to admit Dr. Ingram’s report and to

allow the testimony of Dr. Ingram and Dr. Dadashev did not affect Bankston’s

“substantial rights” such that reversal is necessary. Norfolk Southern presented

testimony and exhibits to the jury from which the jury reasonably could have

concluded that Bankston’s theory of how the accident occurred was impossible.

Witnesses testified that the type of train involved in the accident would not have



                                          7
had any poles jutting out from it. There was also testimony that given the close

quarters the train passed through near where the accident occurred, anything

protruding from the train would have been destroyed. Additionally, Norfolk

Southern elicited testimony from two of its employees on another train that passed

the train involved in the accident who visually inspected that train and did not see

any poles protruding from it. All of this evidence soundly disproved Bankston’s

theory of how the accident occurred, and all Bankston’s offered to counter it was

his own story. Even if the district court had excluded the testimony and report that

suggested Bankston had tried to board the moving train, there was still such

overwhelming evidence that the accident could not have occurred the way

Bankston said it did, or in a way that would render Norfolk Southern liable to him,

that his substantial rights were not affected by the admission of the doctors’

testimony and Dr. Ingram’s report.

                                          B.

      Bankston also contends that the district court abused its discretion by

denying his motion in limine to exclude opinion testimony by a police officer, who

arrived at the scene of the accident shortly after it happened, concerning how the

accident occurred. Federal Rule 701 authorizes opinion testimony by lay witnesses

where the opinion is: “(a) rationally based on the perception of the witness, (b)



                                          8
helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or other specialized

knowledge within the scope of [the Rule governing expert testimony].” Fed. R.

Evid. 701.

      The district court did not deny Bankstown’s motion in limine as to the

opinion in question but instead deferred ruling on the issue. When Norfolk

Southern’s counsel asked the officer for his opinion, based on his observations of

the scene of the accident and Bankston’s injuries, of how the accident occurred, the

district court overruled Bankston’s counsel’s objection to the question and allowed

the officer to offer his lay opinion. The officer then testified that he that believed

right before the accident, “the train was actually at a stop.” He offered his opinion

that Bankston:

      was trying to either go over [the train] or underneath it when it started
      to move which caused him to be pinned by the wheels which is why
      he got caught and kind of ground up. Because if it was going fast, it
      would have cut right through him. So it was kind of going slowing
      and pinched him, so he was able to go with it until he was able to get
      free.

R4:82:269.

      As with Bankston’s contention that the doctors’ testimony and report should

have been excluded, we need not reach this issue because even if the district court

abused its discretion in permitting it, any error would be harmless. The police

                                            9
officer’s opinion as to how the accident occurred was not the theory Norfolk

Southern argued to the jury—Norfolk Southern maintained that Bankston was

injured while trying to board a moving train. See generally Jones v. Otis Elevator

Co., 861 F.2d 655, 661 (11th Cir. 1988) (noting that it was harmless error for the

district court to instruct the jury on an erroneous theory that neither party argued to

the jury and that was not “not necessary to substantiate the jury’s verdict”).

Moreover, as we have already explained, there was overwhelming evidence that

Bankston’s explanation of how the accident occurred was not tenable, thereby

relieving Norfolk Southern of any liability for his injuries without the officer’s

opinion testimony.

                                           C.

      Bankston’s final contention is that the district court abused its discretion in

denying his motion in limine to exclude “any reference to any past or present

criminal conviction.” The thrust of his argument is that his past criminal

convictions are in no way probative and that they were extremely prejudicial. The

Federal Rules of Evidence permit impeachment of a witness’ truthfulness with

evidence of a crime that is “punishable by death or imprisonment in excess of one

year under the law which the witness was convicted.” Fed. R. Evid. 609(a)(1). To

guard against the dangers of unfair character evidence, the rules require the court to



                                           10
determine whether “the probative value of admitting [the evidence of past felony

convictions] outweighs its prejudicial effect.” Id.

      Norfolk Southern impeached Bankston’s credibility with evidence of three

felony convictions that took place only months before his case went to trial. In its

written order denying Bankston’s motion in limine, the district court explicitly

conducted the required balancing of the probative value and prejudicial effect of

the evidence and concluded that it was admissible. The district court enjoys wide

latitude in exercising its discretion in this area, see United States v. Abel, 469 U.S.

45, 54, 105 S. Ct. 465, 470 (1984), and Bankston has not demonstrated that the

court abused its discretion. Evidence of Bankston’s three recent felony convictions

is obviously prejudicial, but it is also highly probative of his character for

truthfulness. See Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987) (“Rule 609

and the common law tradition out of which it evolved rest on the common-sense

proposition that a person who has flouted society’s most fundamental norms, as

embodied in its felony statutes, is less likely than other members of society to be

deterred from lying under oath in a trial by the solemnity of the oath, the

(minuscule) danger of prosecution for perjury, or internalized ethical norms against

lying. If so, this is something a jury should be permitted to take into account in

evaluating a witness’s believability.”).



                                           11
AFFIRMED.




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