Supreme Court of the United States

AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner

v.

CITY OF LOS ANGELES, CALIFORNIA, et al.

 

KAGAN, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.

Daniel N. Lerman, Washington, DC, for Petitioner.

 

John F. Bash, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner.

 

Steven S. Rosenthal, Washington, DC, for Respondents.

 

Prasad Sharma, Richard Pianka, American Trucking Associations, Inc., Arlington, VA, Roy T. Englert, Jr., Alan Untereiner, Daniel N. Lerman, Counsel of Record, Leif Overvold, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, for Petitioner.

 

Melissa Lin Perrella, Counsel of Record, David Pettit, Natural Resources Defense Council, Inc., Santa Monica, CA, for Respondents Natural Resources Defense Council, Inc., Sierra Club, and Coalition for Clean Air, Inc.

 

Carmen A. Trutanich, Janna B. Sidley, Joy M. Crose, Simon M. Kann, LA City Attorney’s Office, San Pedro, CA, Steven S. Rosenthal, Counsel of Record, Alan K. Palmer, Susanna Y. Chu, Kaye Scholer LLP, Washington, DC, for Respondents the City of Los Angeles, the Harbor Department of the City of Los Angeles, and the Board of Harbor Commissioners of the City of Los Angeles.

 

For U.S. Supreme Court Briefs, See:2013 WL 620882 (Pet.Brief)2013 WL 1143548 (Resp.Brief)2013 WL 1143552 (Resp.Brief)2013 WL 1399368 (Reply.Brief)

 

Justice KAGAN delivered the opinion of the Court.

*3 In this case, we consider whether federal law preempts certain provisions of an agreement that trucking companies must sign before they can transport cargo at the Port of Los Angeles. We hold that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) expressly preempts two of the contract’s provisions, which require such a company to develop an off-street parking plan and display designated placards on its vehicles. We decline to decide in the case’s present, pre-enforcement posture whether, under Castle v. Hayes Freight Lines, Inc., 348 U.S. 61, 75 S.Ct. 191, 99 L.Ed. 68 (1954), federal law governing licenses for interstate motor carriers prevents the Port from using the agreement’s penalty clause to punish violations of other, non-preempted provisions.

 

I

A

The Port of Los Angeles, a division of the City of Los Angeles, is the largest port in the country. The Port owns marine terminal facilities, which it leases to “terminal operators” (such as shipping lines and stevedoring companies) that load cargo onto and unload it from docking ships. Short-haul trucks, called “drayage trucks,” move the cargo into and out of the Port. The trucking companies providing those drayage services are all federally licensed motor carriers. Before the events giving rise to this case, they contracted with terminal operators to transport cargo, but did not enter into agreements with the Port itself.

 

The City’s Board of Harbor Commissioners runs the Port pursuant to a municipal ordinance known as a tariff, which sets out various regulations and charges. In the late 1990’s, the Board decided to enlarge the Port’s facilities to accommodate more ships. Neighborhood and environmental groups objected to the proposed expansion, arguing that it would increase congestion and air pollution and decrease safety in the surrounding area. A lawsuit they brought, and another they threatened, stymied the Board’s development project for almost 10 years.

 

To address the community’s concerns, the Board implemented a Clean Truck Program beginning in 2007. Among other actions, the Board devised a standard-form “concession agreement” to govern the relationship between the Port and any trucking company seeking to operate on the premises. Under that contract, a company may transport cargo at the Port in exchange for complying with various requirements. The two directly at issue here compel the company to (1) affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: “How am I driving? 213–867–5309”) and (2) submit a plan listing off-street parking locations for each truck when not in service. Three other provisions in the agreement, formerly disputed in this litigation, relate to the company’s financial capacity, its maintenance of trucks, and its employment of drivers.

 

The Board then amended the Port’s tariff to ensure that every company providing drayage services at the facility would enter into the concession agreement. The mechanism the Board employed is a criminal prohibition on terminal operators. The amended tariff provides that “no Terminal Operator shall permit access into any Terminal in the Port of Los Angeles to any Drayage Truck unless such Drayage Truck is registered under a Concession [Agreement].” App. 105. A violation of that provision—which occurs “each and every day” a terminal operator provides access to an unregistered truck—is a misdemeanor. Id., at 86. It is punishable by a fine of up to $500 or a prison sentence of up to six months. Id., at 85–86.

 

The concession agreement itself spells out penalties for any signatory trucking company that violates its requirements. When a company commits a “Minor Default,” the Port may issue a warning letter or order the company to undertake “corrective action,” complete a “course of … training,” or pay the costs of the Port’s investigation. Id., at 81–82. When a company commits a “Major Default,” the Port may also suspend or revoke the company’s right to provide drayage services at the Port. Id., at 82. The agreement, however, does not specify which breaches of the contract qualify as “Major,” rather than “Minor.” And the parties agree that the Port has never suspended or revoked a trucking company’s license to operate at the Port for a prior violation of one of the contract provisions involved in this case. See Tr. of Oral Arg. 42–43, 49–51.

 

B

*4 Petitioner American Trucking Associations, Inc. (ATA), is a national trade association representing the trucking industry, including drayage companies that operate at the Port. ATA filed suit against the Port and City, seeking an injunction against the five provisions of the concession agreement discussed above. The complaint principally contended that § 14501(c)(1) of the FAAAA expressly preempts those requirements. That statutory section states:

 

“[A] State [or local government] may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1).FN1

 

FN1. ATA also contended that a separate provision, 49 U.S.C. § 14506(a), preempts the agreement’s placard requirement. That section bars state and local governments from enacting or enforcing “any law, rule, regulation[,] standard, or other provision having the force and effect of law” that obligates a motor carrier to display any form of identification other than those the Secretary of Transportation has required. Ibid. The just-quoted language is the only part of § 14506(a) disputed here, and it is materially identical to language in § 14501(c)(1). We focus on § 14501(c)(1) for ease of reference, but everything we say about that provision also applies to § 14506(a).

 

ATA also offered a back-up argument: Even if the requirements are valid, ATA claimed, the Port may not enforce them by withdrawing a defaulting company’s right to operate at the Port. That argument rested on Castle v. Hayes Freight Lines, Inc., 348 U.S. 61, 75 S.Ct. 191, 99 L.Ed. 68 (1954), which held that Illinois could not bar a federally licensed motor carrier from its highways for prior violations of state safety regulations. We reasoned in Castle that the State’s action conflicted with federal law providing for certification of motor carriers; and ATA argued here that a similar conflict would inhere in applying the concession agreement to suspend or revoke a trucking company’s privileges. Following a bench trial, the District Court held that neither § 14501(c)(1) nor Castle prevents the Port from proceeding with any part of its Clean Truck Program.

 

The Court of Appeals for the Ninth Circuit mainly affirmed. Most important for our purposes, the court held that § 14501(c)(1) does not preempt the agreement’s placard and parking requirements because they do not “ ‘ha[ve] the force and effect of law.’ ” 660 F.3d 384, 395 (2011) (quoting § 14501(c)(1)). The court reasoned that those requirements, rather than regulating the drayage market, advance the Port’s own “business interest” in “managing its facilities.” Id., at 401. Both provisions were “designed to address [a] specific proprietary problem[ ]”—the need to “increase the community good-will necessary to facilitate Port expansion.” Id., at 406–407; see id., at 409. The Ninth Circuit also held the agreement’s financial-capacity and truck-maintenance provisions not preempted, for reasons not relevant here.FN2 Section 14501(c)(1), the court decided, preempts only the contract’s employment provision. Finally, the Ninth Circuit rejected ATA’s claim that Castle bars the Port from applying the agreement’s penalty clause to withdraw a trucking company’s right to operate at the facility. The court thought Castle inapplicable because of the narrower exclusion in this case: “Unlike a ban on using all of a State’s freeways,” the court reasoned, “a limitation on access to a single Port does not prohibit motor carriers” from generally participating in interstate commerce. 660 F.3d, at 403.

 

FN2. For those curious, the court held that the financial-capacity requirement is not “ ‘related to a [motor carrier’s] price, route, or service,’ ” and that the truck-maintenance requirement falls within a statutory exception for safety regulation. 660 F.3d, at 395, 403–406 (quoting § 14501(c)(1)); see § 14501(c)(2)(A) (safety exception).

 

We granted certiorari to resolve two questions: first, whether § 14501(c)(1) of the FAAAA preempts the concession agreement’s placard and parking provisions; and second, whether Castle precludes reliance on the agreement’s penalty clause to suspend or revoke a trucking company’s privileges. See 568 U.S. ––––, 133 S.Ct. 927, 184 L.Ed.2d 718 (2013). Contrary to the Ninth Circuit, we hold that the placard and parking requirements are preempted as “provision[s] having the force and effect of law.” That determination does not obviate the enforcement issue arising from Castle because the Ninth Circuit’s rulings upholding the agreement’s financial-capacity and truck-maintenance provisions have now become final; FN3 accordingly, the Port could try to apply its penalty provision to trucking companies that have violated those surviving requirements. But we nonetheless decline to address the Castle question because the case’s pre-enforcement posture obscures the nature of the agreement’s remedial scheme, rendering any decision at this point a shot in the dark.

 

FN3. ATA’s petition for certiorari did not seek review of the Ninth Circuit’s determination that the truck-maintenance provision is valid. The petition did ask us to consider the court’s ruling on the financial-capacity provision, but we declined to do so.

 

II

*5 [1] Section 14501(c)(1), once again, preempts a state “law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … with respect to the transportation of property.” All parties agree that the Port’s placard and parking requirements relate to a motor carrier’s price, route, or service with respect to transporting property. The only disputed question is whether those requirements “hav[e] the force and effect of law.” The Port claims that they do not, because the “concession contract is just [like] a private agreement,” made to advance the Port’s commercial and “proprietary interests.” Brief for Respondent City of Los Angeles et al. 19 (Brief for City of Los Angeles) (internal quotation marks omitted).FN4

 

FN4. The Port’s brief occasionally frames the issue differently—as whether a freestanding “market-participant exception” limits § 14501(c)(1)’s express terms. See Brief for City of Los Angeles 24. But at oral argument, the Port emphasized that the supposed exception it invoked in fact derives from § 14501(c)(1)’s “force and effect of law” language. See Tr. of Oral Arg. 31 (“[W]hat we are calling the market participant exception … is generally congruent with[ ] what is meant by Congress by the term ‘force and effect of law’ ”); id., at 39–40 (“I’m … relying on the language … force and effect of law,” which “invites a market participant analysis”). We therefore have no occasion to consider whether or when a preemption clause lacking such language would except a state or local government’s proprietary actions.

 

[2] We can agree with the Port on this premise: Section 14501(c)(1) draws a rough line between a government’s exercise of regulatory authority and its own contract-based participation in a market. We recognized that distinction in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), when we construed another statute’s near-identical “force and effect of law” language. That phrase, we stated, “connotes official, government-imposed policies” prescribing “binding standards of conduct.” Id., at 229, n. 5, 115 S.Ct. 817 (internal quotation marks omitted). And we contrasted that quintessential regulatory action to “contractual commitment[s] voluntarily undertaken.” Id., at 229, 115 S.Ct. 817 (internal quotation marks omitted). In Wolens, we addressed a State’s enforcement of an agreement between two private parties. But the same reasoning holds if the government enters into a contract just as a private party would—for example, if a State (or City or Port) signs an agreement with a trucking company to transport goods at a specified price. See, e.g., Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc., 507 U.S. 218, 233, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993) (When a State acts as a purchaser of services, “it does not ‘regulate’ the workings of the market …; it exemplifies them” (some internal quotation marks omitted)). The “force and effect of law” language in § 14501(c)(1) excludes such everyday contractual arrangements from the clause’s scope. That phrasing targets the State acting as a State, not as any market actor—or otherwise said, the State acting in a regulatory rather than proprietary mode.

 

But that statutory reading gets the Port nothing, because it exercised classic regulatory authority—complete with the use of criminal penalties—in imposing the placard and parking requirements at issue here. Consider again how those requirements work. They are, to be sure, contained in contracts between the Port and trucking companies. But those contracts do not stand alone, as the result merely of the parties’ voluntary commitments. The Board of Harbor Commissioners aimed to “require parties who access Port land and terminals for purposes of providing drayage services” to enter into concession agreements with the Port. App. 108 (Board’s “Findings”). And it accomplished that objective by amending the Port’s tariff—a form of municipal ordinance—to provide that “no Terminal Operator shall permit” a drayage truck to gain “access into any Terminal in the Port” unless the truck is “registered under” such a concession agreement. Id., at 105. A violation of that tariff provision is a violation of criminal law. And it is punishable by a fine or a prison sentence of up to six months. Id., at 85–86. So the contract here functions as part and parcel of a governmental program wielding coercive power over private parties, backed by the threat of criminal punishment.

 

*6 That counts as action “having the force and effect of law” if anything does. The Port here has not acted as a private party, contracting in a way that the owner of an ordinary commercial enterprise could mimic. Rather, it has forced terminal operators—and through them, trucking companies—to alter their conduct by implementing a criminal prohibition punishable by time in prison. In some cases, the question whether governmental action has the force of law may pose difficulties; the line between regulatory and proprietary conduct has soft edges. But this case takes us nowhere near those uncertain boundaries. Contractual commitments resulting not from ordinary bargaining (as in Wolens ), but instead from the threat of criminal sanctions manifest the government qua government, performing its prototypical regulatory role.

 

[3][4] The Port’s primary argument to the contrary, like the Ninth Circuit’s, focuses on motive rather than means. The Court of Appeals related how community opposition had frustrated the Port’s expansion, and concluded that the Clean Truck Program “respon[ded] to perceived business necessity.” 660 F.3d, at 407. The Port tells the identical story, emphasizing that private companies have similar business incentives to “adopt[ ] ‘green growth’ plans like the Port’s.” Brief for City of Los Angeles 30. We have no reason to doubt that account of events; we can assume the Port acted to enhance goodwill and improve the odds of achieving its business plan—just as a private company might. But the Port’s intentions are not what matters. That is because, as we just described, the Port chose a tool to fulfill those goals which only a government can wield: the hammer of the criminal law. See United Haulers Assn., Inc. v. Oneida–Herkimer Solid Waste Mgmt. Auth., 438 F.3d 150, 157 (C.A.2 2006), aff’d, 550 U.S. 330, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007). And when the government employs such a coercive mechanism, available to no private party, it acts with the force and effect of law, whether or not it does so to turn a profit. Only if it forgoes the (distinctively governmental) exercise of legal authority may it escape § 14501(c)(1)’s preemptive scope.

 

The Port also tries another tack, reminding us that the criminal sanctions here fall on terminal operators alone, not on the trucking companies subject to the agreement’s requirements; hence, the Port maintains, the matter of “criminal penalties is a red herring.” Tr. of Oral Arg. 31; see Brief for City of Los Angeles 39–40. But we fail to see why the target of the sanctions makes any difference. The Port selected an indirect but wholly effective means of “requir[ing] parties … providing drayage services” to display placards and submit parking plans: To wit, the Port required terminal operators, on pain of criminal penalties, to insist that the truckers make those commitments. App. 108; see supra, at ––––, ––––. We have often rejected efforts by States to avoid preemption by shifting their regulatory focus from one company to another in the same supply chain. See, e.g.,  Rowe v. New Hampshire Motor Transp. Assn., 552 U.S. 364, 371–373, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) (finding preemption under the FAAAA although the State’s requirements directly targeted retailers rather than motor carriers); Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 255, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004) (finding preemption under the Clean Air Act although the requirements directly targeted car buyers rather than sellers). The same goes here. The Port made its regulation of drayage trucks mandatory by imposing criminal penalties on the entities hiring all such trucks at the facility. Slice it or dice it any which way, the Port thus acted with the “force of law.”

 

III

*7 Our rejection of the concession agreement’s placard and parking requirements does not conclude this case. Two other provisions of the agreement are now in effect: As noted earlier, the Ninth Circuit upheld the financial-capacity and truck-maintenance requirements, and that part of its decision has become final. See supra, at ––––, and n. 2. ATA argues that our holding in Castle limits the way the Port can enforce those remaining requirements. According to ATA, the Port may not rely on the agreement’s penalty provision to suspend or revoke the right of non-complying trucking companies to operate on the premises.

 

As we have described, Castle rebuffed a State’s attempt to bar a federally licensed motor carrier from its highways for past infringements of state safety regulations. A federal statute, we explained, gave a federal agency the authority to license interstate motor carriers, as well as a carefully circumscribed power to suspend or terminate those licenses for violations of law. That statute, we held, implicitly prohibited a State from “tak[ing] action”—like a ban on the use of its highways—“amounting to a suspension or revocation of an interstate carrier’s [federally] granted right to operate.” 348 U.S., at 63–64, 75 S.Ct. 191.

 

The parties here dispute whether Castle restricts the Port’s remedial authority. The Port echoes the Ninth Circuit’s view that banning a truck from “all of a State’s freeways” is meaningfully different from denying it “access to a single Port.” 660 F.3d, at 403; see Brief for City of Los Angeles 49. ATA responds that because the Port is a “crucial channel of interstate commerce,” Castle applies to it just as much as to roads. Brief for Petitioner 18.

 

*8 But we see another question here: Does the Port’s enforcement scheme involve curtailing drayage trucks’ operations in the way Castle prohibits, even assuming that decision applies to facilities like this one? As just indicated, Castle puts limits on how a State or locality can punish an interstate motor carrier for prior violations of trucking regulations (like the concession agreement’s requirements). Nothing we said there, however, prevents a State from taking off the road a vehicle that is contemporaneously out of compliance with such regulations. Indeed, ATA filed an amicus brief in Castle explaining that a vehicle “that fails to comply with the state’s regulations may be barred from the state’s highways.” Brief for ATA, O.T. 1954, No. 44, p. 12; see Brief for Respondent, id., p. 23 (A State may “stop and prevent from continuing on the highway any motor vehicle which it finds not to be in compliance”). And ATA reiterates that view here, as does the United States as amicus curiae. See Reply Brief 22; Brief for United States 29–30. So the Port would not violate Castle if it barred a truck from operating at its facilities to prevent an ongoing violation of the agreement’s requirements.

 

[5] And at this juncture, we have no basis for finding that the Port will ever use the agreement’s penalty provision for anything more than that. That provision, to be sure, might be read to give the Port broader authority: As noted earlier, the relevant text enables the Port to suspend or revoke a trucking company’s right to provide drayage services at the facility as a “[r]emedy” for a “Major Default.” App. 82; see supra, at ––––. But the agreement nowhere states what counts as a “Major Default”—and specifically, whether a company’s breach of the financial-capacity or truck-maintenance requirements would qualify. And the Port has in fact never used its suspension or revocation power to penalize a past violation of those requirements. See Tr. of Oral Arg. 43, 50–51. Indeed, the Port’s brief states that “it does not claim [ ] the authority to punish past, cured violations of the requirements challenged here through suspension or revocation.” Brief for City of Los Angeles 62 (internal quotation marks omitted). So the kind of enforcement ATA fears, and believes inconsistent with Castle, might never come to pass at all.

 

In these circumstances, we decide not to decide ATA’s Castle-based challenge. That claim, by its nature, attacks the Port’s enforcement scheme. But given the pre-enforcement posture of this case, we cannot tell what that scheme entails. It might look like the one forbidden in Castle (as ATA anticipates), or else it might not (as the Port assures us). We see no reason to take a guess now about what the Port will do later. There will be time enough to address the Castle question when, if ever, the Port enforces its agreement in a way arguably violating that decision.

 

IV

*9 Section 14501(c)(1) of the FAAAA preempts the placard and parking provisions of the Port’s concession agreement. We decline to decide on the present record ATA’s separate challenge, based on Castle, to that agreement’s penalty provision. Accordingly, the judgment of the Ninth Circuit is reversed in part, and the case is remanded for further proceedings consistent with this opinion.

 

It is so ordered.

 

Justice THOMAS, concurring.

I join the Court’s opinion in full. I write separately to highlight a constitutional concern regarding § 601 of the Federal Aviation Administration Authorization Act of 1994 (FAAAA), 108 Stat. 1606, a statute the Court has now considered twice this Term. See Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. ––––, 133 S.Ct. 1769, ––– L.Ed.2d –––– (2013).

 

The Constitution grants Congress authority “[t]o regulate Commerce … among the several States.” Art. I, § 8, cl. 3 (emphasis added). Section 14501 of Title 49 is titled “Federal authority over intrastate transportation.” (Emphasis added.) The tension between § 14501 and the Constitution is apparent, because the Constitution does not give Congress power to regulate intrastate commerce. United States v. Lopez, 514 U.S. 549, 587, n. 2, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (THOMAS, J., concurring). Nevertheless, § 14501(c)(1) purports to pre-empt any state or local law “related to a price, route, or service of any motor carrier … with respect to the transportation of property.” By its terms, § 14501(c) would pre-empt even a city ordinance establishing a uniform rate for most transportation services originating and ending inside city limits, so long as the services were provided by a motor carrier. Such an extraordinary assertion of congressional authority cannot be reconciled with our constitutional system of enumerated powers.

 

The Supremacy Clause provides the constitutional basis for the pre-emption of state laws. Art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land”). Because the Constitution and federal laws are supreme, conflicting state laws are without legal effect. See Crosby v. National Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). However, the constitutional text leaves no doubt that only federal laws made “in Pursuance” of the Constitution are supreme. See Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (“As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States” (emphasis added)); Wyeth v. Levine, 555 U.S. 555, 583–587, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (THOMAS, J., concurring in judgment).

 

Given this limitation, Congress cannot pre-empt a state law merely by promulgating a conflicting statute—the pre-empting statute must also be constitutional, both on its face and as applied. As relevant here, if Congress lacks authority to enact a law regulating a particular intrastate activity, it follows that Congress also lacks authority to pre-empt state laws regulating that activity. See U.S. Const., Amdt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).

 

*10 In this case, the Court concludes that “[s]ection 14501(c)(1) … preempts the placard and parking provisions of the Port’s concession agreement.” Ante, at ––––. Although respondents waived any argument that Congress lacks authority to regulate the placards and parking arrangements of drayage trucks using the port, I doubt that Congress has such authority. The Court has identified three categories of activity that Congress may regulate under the Commerce Clause: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) “activities having a substantial relation to interstate commerce … i.e., those activities that substantially affect interstate commerce.” Lopez, supra, at 558–559, 115 S.Ct. 1624. Drayage trucks that carry cargo into and out of the Port of Los Angeles undoubtedly operate within the “channels of interstate commerce”—for that is what a port is. Congress can therefore regulate conduct taking place within the port. But it is doubtful whether Congress has the power to decide where a drayage truck should park once it has left the port or what kind of placard the truck should display while offsite. Even under the “substantial effects” test, which I have rejected as a “ ‘rootless and malleable standard’ at odds with the constitutional design,” Gonzales v. Raich, 545 U.S. 1, 67, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (dissenting opinion) (quoting United States v. Morrison, 529 U.S. 598, 627, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (THOMAS, J., concurring)), it is difficult to say that placards and parking arrangements substantially affect interstate commerce. Congress made no findings indicating that offsite parking—conduct that falls within the scope of the States’ traditional police powers—substantially affects interstate commerce. And I doubt that it could. Nevertheless, because respondents did not preserve a constitutional challenge to the FAAAA and because I agree that the provisions in question have the “force and effect of law,” I join the Court’s opinion.

United States Court of Appeals,

Eighth Circuit.

SWIFT TRANSPORTATION COMPANY OF ARIZONA, LLC, formerly known as Swift Transportation Co., Inc.; Lexington Insurance Company, Plaintiffs–Appellants

v.

Alfred F. ANGULO, Jr.; Barrett and Deacon, P.A., Defendants–Appellees.

 

No. 12–1069.

Submitted Nov. 15, 2012.

Filed June 17, 2013.

 

Appeal from United States District Court for the Eastern District of Arkansas—Little Rock.

Counsel who presented argument on behalf of the appellant was Timothy Oliver Dudley, of Little Rock, AR. Also appearing on the brief was Danny R. Crabtree, of Little Rock, AR.

 

Counsel who presented argument on behalf of the appellee was Emmett B. Chiles, of Little Rock, AR. Appearing on the brief were Walter B. Cox, of Fayetteville, AR., and James Ronald Estes, Jr., of Fayetteville, AR.

 

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

 

RILEY, Chief Judge.

*1 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 court FN1 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.

 

FN1. The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

 

I. BACKGROUND

 

A. Factual BackgroundFN2

 

FN2. 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.

 

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 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.

 

*2 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 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.” FN3 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 handwritten annotations, including “40 mile Radius 11/08/04 0400—11/08–04 0600” and “615A central time or 515A Swift time.”

 

FN3. Star City is approximately seventy miles southeast of Little Rock.

 

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.

 

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.

 

*3 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 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 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:

 

*4 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.

 

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).

 

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.FN4 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.

 

FN4. 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).

 

*5 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 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).FN5

 

FN5. 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).

 

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).FN6

 

FN6. The evidence apparently was admitted to prove Swift’s lack of credibility, not as a discovery sanction.

 

*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 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.

 

2. Hearsay

*7 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.FN7

 

FN7. 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 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).

 

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

 

3. Expert Testimony

*8 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) (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.

 

*9 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 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.