                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1069
                         ___________________________

    Swift Transportation Company of Arizona, LLC, formerly known as Swift
             Transportation Co., Inc.; Lexington Insurance Company

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

                  Alfred F. Angulo, Jr.; Barrett and Deacon, P.A.

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                           Submitted: November 15, 2012
                               Filed: June 17, 2013
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
                             ____________

RILEY, Chief Judge.

        Filing this diversity action, 28 U.S.C. § 1332(a), Swift Transportation
Company of Arizona, LLC (Swift) sued attorney Alfred F. Angulo, Jr. and the law
firm Barrett and Deacon, P.A. (collectively, lawyers), alleging malpractice for failing
to file a timely appeal of an adverse judgment in an Arkansas state court action. The
district court1 granted summary judgment to the lawyers. We have appellate
jurisdiction under 28 U.S.C. § 1291. Because the district court did not err in granting
summary judgment, we affirm.

I.     BACKGROUND
       A.     Factual Background2
       In the early morning hours of November 8, 2004, Joe Turner was driving a
bread delivery panel truck south on U.S. Highway 425 south of Star City, Arkansas,
when a semi-tractor trailer forced Turner off of the road. Turner was thrown from his
vehicle. Rebecca Barnett, a Pine Bluff, Arkansas paramedic, and her rescue team
partner responded and transported Turner to Drew Memorial Hospital. As a result of
the accident, Turner suffered a closed head injury, numerous fractures and
lacerations, and tetraplegia. He is principally wheelchair dependent and has only
limited use of his right arm.

       On the morning of the accident, Angela Merritt Pryor was looking out her
kitchen window when she heard, then observed “an eighteen wheeler going fast,” in
a line with at least six other vehicles “all going at a high rate of speed.” Pryor
reported hearing a “loud boom” just after seeing these vehicles, and she noted the
time to be approximately 6:15 a.m. After approximately an hour and a half, Pryor
went to the scene of the accident. Pryor told a state trooper she had seen a truck and
heard a noise that morning, but did not know whether it was important to the accident

      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
      2
        The parties rely on an abridged summary of the trial transcript styled as the
“Abstract of Testimony and Proceedings.” The record does not disclose how this
abstract was prepared, and there is no attestation that the abstract is an accurate
summary of the trial transcript. Because both parties rely on the abstract in their
briefs and there has been no objection, we reluctantly will rely on this abstract for
purposes of this opinion.

                                         -2-
investigation. Pryor identified the truck as a Swift truck. Pryor subsequently
clarified she had seen a stylized “S” on the side of the vehicle’s trailer, but no
markings on the tractor unit. Pryor was confident—“without a doubt”—it had been
a Swift truck she observed before the accident.

      At the scene of the accident and twice at the hospital, Turner reportedly stated
a “Swift truck” forced him from the road, causing the accident. Kimberly Irons, a
Star City resident who arrived on the scene shortly after the crash, remarked that
Turner asked her to call Turner’s wife because “a Swift truck ran him off the road.”
Turner also uttered he was twenty-one years old, although he was actually fifty-six,
“and that he wanted to go deer hunting.”

       Barnett reported that, in the ambulance on the way to the hospital, Turner was
disoriented and “babbling.” Turner mentioned there had been another truck, but did
not identify it as a Swift truck. At the hospital, approximately thirty or forty minutes
after Barnett had taken Turner from the accident scene, Barnett overheard Turner ask
a nurse about “[t]he Swift truck,” and tell the nurse “[a] Swift truck run me off the
road.”

        James Gosney, Turner’s brother-in-law, visited Turner at the hospital. Gosney
observed Turner was “conscious and in serious condition,” and was “in pain,” but he
“did not appear to be unsure about what he was talking about.” Turner told Gosney
“I run off the road ‘cause there was a Swift truck in my lane of traffic, and I was fixin’
to hit it head on so I went off the road and that’s when I hit it, the culvert.” Turner
also told Gosney “I’m going to miss my deer hunting.” After speaking with Turner
in the hospital, Gosney called Swift later in the week to report that a Swift truck had
caused Turner’s accident and that Turner had been badly injured.

      As Turner began to recover from his injuries, Turner recalled that a semi-truck
had been “on [his] side of the road.” However, he did not recall seeing any markings

                                           -3-
identifying the vehicle as a Swift truck, and he did not remember telling anyone after
the accident that the truck had been a Swift truck.

       Swift tractors are equipped with satellite tracking devices. Swift’s onboard
tracking system sends a location signal to the Swift computers on an hourly basis if
there is no other communication between dispatch and the truck. Unless Swift takes
steps to preserve the tracking data, this data is automatically deleted after seven days.
After hearing about the accident from Gosney, Devon Daricek, a Swift security
officer, ran a search tracking the location of Swift tractors at the time of the incident.

       Swift did not preserve the electronic tracking information, so the only record
of the search was a computer printout prepared by Daricek. The printout contained
a table with five entries corresponding to five Swift vehicles. The “Proximity
Reference” column listed “Little Rock, AR.”3 The date column, presumably
recording the time the data was gathered, contained entries ranging from “04:23” to
“05:11” on November 8, 2004. The following was printed below the table: “vehicles
were found within 40 miles of the reference location.” The printout did not identify
the time zone, show whether the time was a.m. or p.m., or indicate the “reference
location” used for the search. Below the printed information were several hand-
written annotations, including “40 mile Radius 11/08/04 0400 — 11/08-04 0600” and
“615A central time or 515A Swift time.”

      B.     Procedural History
             1.     State Court Action
      In 2005, Turner filed suit against Swift in the Circuit Court of Drew County,
Arkansas (trial court). Swift retained Angulo, who later became an employee of
Barrett and Deacon, to defend the company. The first trial of the case was in 2007
and resulted in a hung jury. The case was retried in May 2008.


      3
          Star City is approximately seventy miles southeast of Little Rock.

                                           -4-
      During discovery, Swift initially failed to disclose the satellite tracking
printout, telling Turner the data had not been preserved. In October 2005, Swift
disclosed the printout.

       Dennis Ritchie, a Swift safety advisor, testified Swift sometimes used a twenty-
mile radius search parameter when conducting satellite vehicle tracking. Ritchie did
not conduct the search at issue here, but testified he believed a forty-mile radius was
used, even though this broader search radius might deviate from standard practices.
Ritchie testified it was possible for a Swift truck to pass through the target area
undetected if a twenty-mile radius were used, but a forty-mile radius would be more
likely to detect any Swift vehicles in the area.

       Swift initially identified Lloyd Telking, Daricek’s supervisor, as the employee
who conducted the computer search. At trial, Daricek testified that he, not Telking,
actually conducted search. Daricek claimed he used a forty-mile radius with Star
City at the center. He testified it was not possible to add or remove vehicles from the
search, so any vehicles in the area at the time of the accident would have shown up
on the printout. Daricek testified the printout revealed no Swift tractors that were
driving north on Highway 425 at the time of the accident. He also testified other
trucking companies would use Swift trailers, and Swift had no way of tracking trailers
that were not used by Swift drivers driving Swift tractors.

       Swift also informed Turner that an “unknown person” had contacted Swift after
Turner’s accident. On August 30, 2005, Turner advised Swift that Gosney made that
call. Swift later admitted Swift’s records revealed the call had come from Gosney.
Ritchie stated it was Swift’s standard procedure to identify all informants as
“unknown,” even when Swift was aware of the informant’s identity.

       Pryor testified she saw a Swift trailer just before hearing the accident. Barnett,
Irons, and Gosney each testified, over Swift’s hearsay objection, to what Turner said

                                          -5-
at various times after the accident about a Swift truck. On cross-examination, Turner
responded as follows:

      Q: And you couldn[’]t make out any markings on that truck, correct?

      A: I do not remember any markings.

      Q: You didn’t say [previously under oath] you didn’t remember; you
      said you couldn’t make them out.

      A: Couldn’t make them out, same thing.

      ....

      Q: Can you identify that truck that you saw out there that morning as a
      Swift truck?

      A: I cannot tell you that was a Swift truck. I was only looking at the
      headlights and that truck was coming straight at me.

Turner also testified he had “seen trucks that looked like” an image of a white tractor-
trailer with a stylized logo of the word “Swift” prominently displayed above the
windshield. Another image, this one provided by Swift and entered into evidence
without objection, provided a close-up image of a “Swift” logo printed on the
aerodynamic “air foil” above the windshield of the tractor, similar to the image
identified by Turner.

        Dr. Gary Souheaver, a clinical neuropsychologist and brain injury expert,
testified for Turner. Dr. Souheaver explained that as a result of traumatic brain
injury, a person might forget specific details of events before that person would forget
the event itself. When asked to evaluate the statements of Barnett, Irons, and Gosney
about Turner’s post-accident identification of the truck, Dr. Souheaver opined “based
on the fact that there were three separate occasions, three separate individuals, and

                                          -6-
three separate times, the statements I would judge to be very reliable.” Dr. Souheaver
clarified that he was not suggesting the jury should believe Barnett, Irons, and
Gosney.

       Turner presented a demonstrative exhibit, an animation purporting to recreate
the accident from Turner’s perspective inside the bread truck. According to the
appendix summary, the animation depicted a passenger vehicle’s headlights heading
toward the bread truck from the opposite lane of traffic. In the animation, the semi-
tractor trailer enters the picture, attempting to pass the passenger vehicle. The
animated tractor-trailer drives straight toward the bread truck. The tractor is painted
white, with a visible “Swift” logo above the air foil. The animated truck forces the
bread truck off the road. The court admitted the video into evidence, over Swift’s
objection.

      The trial court also instructed the jury on spoliation, declaring:

      If you find that Swift intentionally destroyed, lost, or suppressed satellite
      data with knowledge that the data may be material to a potential claim
      or defense, you may draw the inference that the evidence would have
      been favorable to . . . Turner’s claim or unfavorable to Swift’s defense.

      The jury returned a verdict in Turner’s favor in the amount of $6,000,000.
Swift appealed to the Arkansas Court of Appeals, but the court dismissed the appeal
without prejudice because a pending subrogation claim rendered the trial court’s
order not final.

      Due to an alleged oversight, the lawyers failed to file a subsequent appeal at
the proper time. Swift moved the Arkansas trial court to extend the time to file the
appeal, and filed an appeal out of time. Swift ultimately paid the judgment in full and
the appellate court dismissed the pending Arkansas appeal, without the appeals court
deciding whether to allow Swift to file the out of time appeal.

                                          -7-
       Swift sued the lawyers for malpractice, invoking the district court’s diversity
jurisdiction and alleging the failure to file a timely appeal denied Swift the
opportunity to prevail in the state court action. The lawyers moved for summary
judgment, which the district court granted because the district court concluded Swift
would not have been successful on any of its issues in the state appeal. This appeal
follows.

II.    DISCUSSION
       A.     Standard of Review and Applicable Law
       We review the district court’s grant of summary judgment de novo, construing
all facts and taking all reasonable inferences in favor of the non-moving party.
BancorpSouth Bank v. Hazelwood Logistics Center, 706 F.3d 888, 893 (8th Cir.
2013). We must affirm summary judgment if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).

       In this diversity of citizenship case, we apply the substantive law of Arkansas.
See HealthEast Bethesda Hosp. v. United Commercial Travelers of Am., 596 F.3d
986, 987 (8th Cir. 2010). In Arkansas, a malpractice “plaintiff must prove that the
attorney’s conduct fell below the generally accepted standard of practice and that this
conduct proximately caused the plaintiff damages.” S. Farm Bureau Cas. Ins. Co. v.
Daggett, 118 S.W.3d 525, 530 (Ark. 2003). In this case, the lawyers do not assert that
the alleged conduct of failing to file a timely appeal met the acceptable standard of
attorney representation. The only issue raised is whether this error proximately
caused harm to Swift. See id. (explaining, “[t]o show damages and proximate cause”
deriving from the lawyers’ failure to perfect an appeal, Swift must show “the result
in the underlying action would have been different,” but for the lawyers’ negligence).




                                         -8-
       B.     Sufficiency of the Evidence
       Swift argues the trial court erred in failing to grant a directed verdict because
no witness at trial testified the tractor portion of the cab displayed a “Swift” logo or
otherwise demonstrated the driver of the truck was employed by Swift. Swift’s
theory is Swift cannot be liable under Arkansas law unless Turner proved there was
a Swift logo on the tractor indicating the truck was owned by Swift and operated by
a Swift driver.4 Arkansas appellate courts review the denial of a motion for a directed
verdict for “substantial evidence,” meaning evidence “which goes beyond suspicion
or conjecture and is sufficient to compel a conclusion one way or the other.” Ethyl
Corp. v. Johnson, 49 S.W.3d 644, 647 (Ark. 2001). In conducting this inquiry, the
Arkansas courts “view the evidence and all reasonable inferences arising therefrom
in the light most favorable to the party on whose behalf judgment was entered.” Id.

       There was sufficient evidence to support the verdict. Three witnesses testified
Turner, shortly after the accident, identified a Swift truck as causing the accident.
Turner himself recalled he saw an eighteen wheeler “coming straight at” him, and
before the accident, Turner had become familiar with the appearance of Swift trucks
and with the Swift logo. The jury could infer that, if Turner reported he saw a Swift
truck at the time of the accident, he must have seen the Swift logo on the air foil
above the cab. While this is not the only inference the jury reasonably could have
drawn from the evidence, it is a reasonable inference, which is sufficient to support
a jury verdict under Arkansas law. See id.

     Evidence that there was a Swift truck in the vicinity at the time of the accident
supports this inference. Pryor first testified she witnessed a Swift truck just before

      4
       While Arkansas does not appear to have a case directly on point, we accept,
without deciding, Swift’s premise for this appeal. See, e.g., Piggly Wiggly S., Inc.
v. Hercules, Inc., 259 S.E.2d 219, 221 (Ga. Ct. App. 1979) (deciding the owner of a
cargo trailer was not responsible for the negligent actions of an independent
contractor hauling the trailer on behalf of a third party).

                                          -9-
the accident. On cross-examination, Pryor could not say the tractor had Swift
markings. A reasonable jury could conclude Pryor’s sighting of a “Swift truck” made
it more likely Turner actually saw a Swift tractor at the time of the accident. The
same can be said of the inference arising from Swift’s failure to preserve evidence
from its satellite tracking system. Following the spoliation instruction, the jury was
permitted to conclude there was a Swift vehicle in the area at the time of the accident,
further supporting the supposition Turner actually saw a Swift truck.

       Because there was sufficient evidence to support the jury’s verdict, the
Arkansas appellate courts would not have reversed the judgment against Swift on
insufficient evidence grounds.

      C.     Evidentiary Issues
             1.     Discovery Disputes
       Swift argues the Arkansas Court of Appeals would have reversed because the
trial court abused its discretion in allowing Turner to introduce evidence Swift
(1) allegedly concealed the fact that Gosney called Swift within days of the accident
to inform Swift of the event, and (2) failed to preserve and to disclose the satellite
tracking data. Swift contends this information was irrelevant and Turner suffered no
prejudice as a result of Swift’s alleged omission. The Arkansas appellate courts
review evidentiary rulings for abuse of discretion. See Arthur v. Zearley, 992 S.W.2d
67, 74 (Ark. 1999) (“A trial court is accorded wide discretion in evidentiary rulings,
and will not be reversed on such rulings absent a manifest abuse of discretion.”); see
also Ark. R. Evid. 611(a).5




      5
       We also commend our Eighth Circuit trial courts for supervising and
sanctioning, when appropriate, disclosure and discovery abuses. See Carmody v.
Kan. City Bd. of Police Comm’rs, 713 F.3d 401, 404-06 (8th Cir. 2013).

                                         -10-
       The evidence Swift withheld Gosney’s name is relevant to assessing the
reliability of Swift’s satellite tracking data. Swift initially claimed an unknown
person had informed Swift of the accident, and Swift initially denied having any
record of the satellite data. It was only after Turner alerted Swift that Turner knew
it was Gosney who had made the call that Swift confirmed this information and
released the printed copy of the partial tracking data. A Swift employee even
admitted it was Swift’s policy to deny knowing the identity of informants such as
Gosney, a policy that calls into question Swift’s veracity in conducting the tracking
search and failing to retain the electronic data. In Arkansas, “matters affecting the
credibility of a witness are always relevant.” Jones v. State, 78 S.W.3d 104, 110
(Ark. 2002).6

       The trial court also did not abuse its discretion by giving a spoliation
instruction to the jury. See Dupont v. Fred’s Stores of Tenn., Inc., 652 F.3d 878, 882
(8th Cir. 2011) (“We review a district court’s jury instructions for an abuse of
discretion.”). “A party is entitled to a jury instruction when it is a correct statement
of the law and there is some basis in the evidence to support the giving of the
instruction.” Tomlin v. Wal-Mart Stores, Inc., 100 S.W.3d 57, 64 (Ark. Ct. App.
2003). Spoliation occurs when a party intentionally destroys evidence. See id. at 62.
Swift proposes the trial court erred in giving the spoliation instruction, reasoning
(1) Swift did not act in bad faith because the evidence was automatically destroyed
in the ordinary course of business, and (2) Turner suffered no prejudice because Swift
disclosed the printout of the satellite search, providing Turner with the information
he requested. We reject these arguments.

      Contrary to Swift’s assertions, the trial court unquestionably found Swift acted
in bad faith by failing to preserve the digital evidence. In deciding to give the


      6
        The evidence apparently was admitted to prove Swift’s lack of credibility, not
as a discovery sanction.

                                         -11-
spoliation instruction, the trial court found “Swift has been intentionally deceptive,”
mentioning “the things that Swift has done that have been intentionally wrong in
[d]iscovery,” and commenting Swift “just flat out lied.” The trial court noted it was
“not required to believe anything [Swift’s witnesses] sa[id],” and remarked that Swift
“control[led] the satellite data, and some of it . . . [the trial court] believe[d] could
have been preserved if, in fact, it had been exonerat[ing].” The trial court concluded
by saying, “my reason is simply this, I don’t trust the document.” Although the trial
court did not use the words “bad faith,” it is abundantly clear the trial court believed
it was likely Swift intentionally allowed the electronic satellite tracking data to be
destroyed.

       Swift’s proposition that Turner suffered no prejudice because Turner was given
access to the printed record well in advance of trial is also without merit. Having
access to the original electronic data would have allowed Turner to verify Swift’s
search was thorough and accurate. Among other concerns, it was not possible to
determine from the printed materials whether Daricek used Star City as the focal
point of the search, as Daricek testified. The only location printed on the document
was Little Rock. Nor was it clear from the testimony that the search used a forty-
mile radius, as Daricek claimed, rather than a twenty-mile radius, as Ritchie testified.
Lastly, original electronic data would have enabled Turner to verify Swift did not
simply fabricate the document. The trial court did not err in concluding Turner was
prejudiced by Swift’s failure to preserve the electronic tracking data.

       The trial court did not abuse its discretion in admitting evidence of the
discovery disputes or in instructing the jury on spoliation. The Arkansas appellate
courts would not have disturbed the verdict on these grounds, and Swift is not entitled
to any relief based upon this claim.




                                          -12-
            2.     Hearsay
      Swift contends the trial court abused its discretion in admitting hearsay
statements of Irons, Barnett, and Gosney. We disagree.

       Each of these witnesses testified to hearing Turner say a Swift truck ran him
off the road. The trial court admitted the evidence as either an excited utterance or
as a present sense impression. Because all three statements likely were admissible
as excited utterances, the trial court did not abuse its discretion. See Ark. R. Evid.
803(2) (“A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition” is “not
excluded by the hearsay rule.”); Fudge v. State, 20 S.W.3d 315, 320 (Ark. 2000)
(noting a trial court’s admission of testimony under the excited utterance rule is
reviewed for abuse of discretion). For a statement to qualify under the excited
utterance rule, “‘there must be an event which excites the declarant[,] . . . the
statement[] must be uttered during the period of excitement[,] and must express the
declarant’s reaction to the event.’” Id. (quoting Moore v. State, 882 S.W.2d 667, 668
(Ark. 1994)). Factors such as the passage of time and the declarant’s “physical and
mental condition” at the time of the utterance are relevant, but no one factor
necessarily is dispositive. See id.

        Turner made the statement to Irons approximately fifteen minutes after the
accident while Turner was lying in a ditch and before the paramedics arrived. Irons
testified Turner was confused or disoriented, telling Irons that Turner was twenty-one
years old and wanted to go deer hunting, when in fact he was fifty-six and had been
working just before the accident. The trial court did not abuse its discretion in
finding Turner was still influenced by the stress of the event when he made the
purported statement to Irons. See id.7


      7
       We add the trial court did not abuse its discretion in finding this statement was
also admissible under the present sense impression exception to the hearsay rule. See

                                         -13-
       The trial court also did not abuse its discretion in admitting the statement
Turner made at the hospital after the accident. Swift asserts this statement could not
have been an excited utterance because it occurred “over one hour after” the accident,
and after Turner had been given oxygen and transported to the hospital. The trial
court disagreed given the circumstances. Barnett testified Turner remained
disoriented at the scene of the accident and in the ambulance, and he had suffered a
head injury. The trial court did not abuse its discretion under Arkansas law in
weighing the factors and concluding the statement was made while Turner was still
influenced by the excitement of the event. See id. (noting a “lapse of time” from “one
to several hours” was “not determinitive”).

        The statements Turner made to Gosney present the closest question, but
admission of these statements was still within the trial court’s discretion. Gosney
testified that when he saw Turner, Turner was “conscious and in serious condition”
and was “in pain.” Gosney also said Turner remarked, “I’m going to miss my deer
hunting.” Swift contends this proves Turner was in a calm and rational state because
Turner “did not appear unsure about his statements and was talking about deer
hunting over the weekend.” The district court may have concluded the deer hunting
comment was in fact a sign of Turner’s continuing excitement and disorientation.
Turner made a similar comment to Irons shortly after the crash. The similar remarks
reported by Irons and Barnett about a Swift truck, together with Pryor’s observation,
tend to corroborate Gosney’s recollections and do support the trial court’s decision
to admit these later statements. Swift challenges the statement because it was made
hours after the accident, however, again, the passage of “several hours . . . is not
determinative.” Id. at 320-21. There was no abuse of discretion, and the Arkansas




Ark. R. Evid. 803(1) (excluding from the definition of hearsay “[a] statement
describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter”) (emphasis added).

                                        -14-
appellate courts more than likely would not have disturbed the jury’s verdict on these
grounds.

              3.    Expert Testimony
       Swift also challenges the testimony of Dr. Souheaver, arguing this testimony
served no purpose other than to bolster the credibility of the three hearsay witnesses.
See Hinkston v. State, 10 S.W.3d 906, 910 (Ark. 2000) (“Expert testimony on the
credibility of witnesses is an invasion of the jury’s province.”). Swift’s argument
fails.

       Dr. Souheaver made some comments during direct examination which, taken
in isolation, probably were outside the scope of legitimate expert testimony because
they invaded the province of the jury. Dr. Souheaver remarked, “I think based on the
fact that there were three separate occasions [where Turner purportedly identified a
Swift truck,] three separate individuals, and three separate times, the statements I
would judge to be very reliable.” On cross-examination, Dr. Souheaver clarified he
had no special expertise in evaluating the credibility of the hearsay witnesses and
expressed no opinion as to their reliability. He explained that, if the three witnesses
were reliable and Turner had identified a Swift truck on multiple occasions, then his
expert opinion was that Turner could have known it was a Swift truck at the time, but
subsequently forgotten this information because of his brain injury. Dr. Souheaver
specifically made clear “I am not testifying that the jury should believe what Ms.
Irons, Ms. Barnett and Mr. Gosney claim Mr. Turner said,” and clarified he could not
offer any opinion as to whether these witnesses were reliable or had accurately and
honestly recalled what Turner purportedly said.

       Any prejudice Swift may have suffered from Dr. Souheaver’s improper
comments was lessened by Dr. Souheaver’s subsequent clarification of his opinion.
We doubt the Arkansas appellate courts would have granted relief based upon this
particular claim. See, e.g., Jackson v. State, 197 S.W.3d 468, 474-75 (Ark. 2004)

                                         -15-
(recognizing Arkansas courts do not reverse due to the erroneous admission of expert
testimony where the error “was rendered harmless . . . by the admission of subsequent
testimony”).

              4.     Animated Recreation
        Swift also asserts the trial court abused its discretion in permitting Turner to
present the demonstrative animation purporting to recreate the accident. In Arkansas,
a demonstrative video depiction is admissible if it is “‘substantially similar’” to the
accident and any variation in the conditions are “‘not . . . likely to confuse and
mislead the jury.’” Carter v. Mo. Pac. R.R., 681 S.W.2d 314, 315-16 (Ark. 1984)
(quoting Carr v. Suzuki Motor Co., 655 S.W.2d 364, 365 (Ark. 1983)); see also
McMickle v. Griffin, 254 S.W.3d 729, 745 (Ark. 2007). Arkansas appellate courts
review the trial court’s admission of demonstrative evidence for abuse of discretion.
Id. at 743.

       Swift argues the trial court erred in admitting the evidence because Turner
failed to lay a proper foundation for the proposition that the truck had a “Swift” logo
on the air foil. We reject this argument. The trial court recognized the jury could
have decided “the only way that [Turner] could have identified [the truck as a Swift
tractor during the accident] is by seeing ‘Swift’ on the [air foil].” This inference
comports with the evidence. Turner testified the truck came straight at him and ran
him off the road. Based on this testimony, a reasonable jury could conclude Turner
had no opportunity to view the side of the trailer, and if Turner saw a Swift logo it
must have been on the front of the vehicle. Other evidence showed Swift trucks have
a Swift logo on the air foil.

       Swift maintains the trial court’s admission of this exhibit indicated the trial
court “adopt[ed] ipso facto [Turner]’s ‘theory’ that if Turner made statements about
a ‘Swift truck,’ then it must have been because he saw markings on the front of the
truck.” Swift’s suggestion misses the mark. By admitting Turner’s evidence, the trial

                                         -16-
court did not make any judgment as to the credibility of Turner’s case. The trial court
ultimately recognized Turner produced sufficient evidence for a reasonable jury to
consider and possibly accept Turner’s position. The trial court did not abuse its
discretion in this regard, and the Arkansas appellate courts would not have reversed.

III.   CONCLUSION
       We affirm.
                  ______________________________




                                         -17-
