Lauhoff v. Lawrence County, Alabama et al
MEMORANDUM OPINION AND ORDER that defendants' 138 MOTION in Limine is GRANTED as more fully set out in Order; plaintiff's 139 MOTION in Limine is GRANTED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/6/2016. (AHI)
2016 Jul-06 AM 08:01
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
HEALTH CARE, INC., et al.,
Civil Action No. 5:14-CV-00614-CLS
MEMORANDUM OPINION AND ORDERS
This action is before the court on the parties’ motions in limine.1
I. Defendants’ Motion
Defendants ask the court to exclude seven categories of evidence
presentation during the jury trial set to commence on July 18, 2016.
Five aspects of defendants’ motion in limine are uncontested by plaintiff. Plaintiff
does not dispute that he should not be permitted to present evidence related to:
insurance coverage held by defendants that may provide coverage for their alleged
wrongful acts; (2) his dismissed claims; (3) any lawsuits, complaints, investigations, or
grievances against defendants that are unrelated to his alleged injury and treatment; (4)
“expert testimony” by plaintiff or his lay witnesses concerning medical opinions; and (5)
handwritten statements authored by his fellow inmates James Russell, Mike Bryant, and
Doc. no. 138 (Defendants’ Motion in Limine); doc. no. 139 (Plaintiff’s Motion in Limine).
Accordingly, defendants’ motion is GRANTED insofar as it addresses
Defendants also seek to exclude causation testimony by Dr. Evans Kyei-Nimako,
plaintiff’s “free world” treating physician.3
“Dr. Nimako has attempted to
testify multiple times that the cause of the Plaintiff’s anemia in this matter was due to
‘chronic blood loss’ when he presented to Eliza Coffee Memorial Hospital (“ECM”) six
days after his release from jail.”4
Plaintiff has not disclosed Dr. Nimako as an expert pursuant to Federal Rule of
Furthermore, defendants assert that Dr. Nimako lacks the requisite personal
knowledge to offer lay opinion testimony under Federal Rule of Evidence 701, because
“Plaintiff denied a rectal exam [by Dr. Nimako] in order to confirm whether there was
actual bleeding,”6 Dr. Nimako “performed no test to determine whether there was a
bleed,”7 and “Dr. Nimako has testified that he has no k nowledge of the medical care
Doc. no. 141 (Plaintiff’s Response to Defendants’ Motion in Limine), at 1.
Doc. no. 138 (Defendants’ Motion in Limine), at 10.
Id. at 11.
See doc. no. 27 (Scheduling Order) (stating that any expert witness offered by plaintiff was
required to provide a “complete report under Fed. R. Civ. P. 26(a)(2)(B)” by December 12, 2014); see
also Fed. R. Civ. P. 26(a)(2)(B).
Doc. no. 138 (Defendants’ Motion in Limine), at 11 (emphasis and alteration supplied).
Id. at 11 (emphasis supplied).
provided by the Defendants to Plaintiff at the Lawrence County Jail.”8 Plaintiff does
not dispute any of those assertions.
Instead, plaintiff responds that he, “and at least one other witness[,] will testify
regarding [his] chronic rectal bleeding, and this will be a sufficient factual basis for Dr.
Nimako’s causation testimony.”9
Plaintiff misunderstands the foundational requirements
of Rule 701. Dr. Nimako can only provide “testimony in the form of an opinion . . . that
(a) rationally based on [his] perception; (b) helpful to clearly understanding [his]
testimony or to determining a fact in issue; and (c) not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.”
Fed. R. Evid. 701
(ellipsis, emphasis, and alterations supplied). The Eleventh Circuit has stated that “when
a treating physician’s testimony is based on a hypothesis, not the experience of
treating the patient, it crosses the line from lay to expert testimony, and it must comply
with the requirements of Rule 702 and the strictures of Daubert [v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993)].” Williams v. Mast Biosurgery USA, Inc.,
644 F.3d 1312, 1317-18 (11th Cir. 2011) (emphasis and alteration supplied).
of the facts that Dr. Nimako did not perform a rectal exam on plaintiff, performed no
other tests to detect rectal bleeding, and does not have any personal knowledge regarding
Id. at 12 (emphasis supplied).
Doc. no. 141 (Plaintiff’s Response to Defendants’ Motion in Limine), at 1 (alterations
the medical treatment plaintiff received from defendants while incarcerated, this court
concludes that he lacks the requisite personal knowledge to provide lay opinion
testimony under Federal Rule of Evidence 701.
Accordingly, this aspect of defendants’
motion is GRANTED.
Defendants next ask the court to exclude handwritten statements that were
authored by plaintiff during his incarceration, and signed by another inmate, James
Russell, as a “witness.”10 Defendants state:
Plaintiff has testified he has no knowledge of who Russell is, Russell did
not observe Plaintiff write the statements, and Plaintiff has no knowledge
of whether Russell could read the statements.
unauthenticated statements are inadmissible as they would indicate that
Russell either personally observed the conditions complained of by
Plaintiff in the statements, or otherwise ratified what was written. As such,
the statements are inadmissible as hearsay (without exception) and [are]
also highly prejudicial compared to any probative value that may arise from
the use of the statements. Fed. R. Evid. 403, 801-805, 901.
Doc. no. 138 (Defendant’s Motion in Limine), at 14 (alteration supplied, record citation
Plaintiff responds that the statements, “while hearsay, are within at least one
exception, for then-existing mental, emotional, or physical conditions” pursuant to
Federal Rule of Evidence 803(3).11 That rule renders admissible a
statement of the declarant’s then-existing state of mind (such as motive,
Doc. no. 138 (Defendant’s Motion in Limine), at 14.
Doc. no. 141 (Plaintiff’s Response to Defendants’ Motion in Limine), at 2.
intent, or plan) or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s will.
Fed. R. Evid. 803(3) (emphasis supplied).
The first handwritten statement does not fall within that exception.
wrote: “If something happens to me wile [sic] im [sic] in Lawrence County Jail I give my
ex- permission to sue Lawrence County Jail for suport [sic] and the future of my son’s
[sic] Aubry Lee Lauhoff the II & Emmett Parker Lauhoff.”12
Aside from the fact that
plaintiff neither signed nor dated that statement, it does not concern plaintiff’s thenexisting emotional, sensory, or physical condition at the time of writing.
simply indicates plaintiff’s intent to confer power to sue in the future. Accordingly, the
first of plaintiff’s handwritten statements is not admissible under the hearsay exception
identified by plaintiff, or under any other exception, and defendants’ motion in limine is
GRANTED with regard to that statement.
In his second statement, plaintiff wrote:
I, Aubry Lee Lauhoff on this day of 5/21/2012 swear I’ve been sick
over the entire weekend, and I have been denied medical help and I am
progressively feeling worse. I have sevear [sic] swelling in my hands, feet,
& inside of my mouth. I am also haveing [sic] trouble seeing out of my left
eye. I’m dizzy & having trouble standing. Last night I was forced to sit in
a small cell with my own vomit all over for more than an houre [sic].
Tonight I was simply told try not to die before the nurse get’s [sic] in
Doc. no. 138-3, at ECF 2.
tomorrow. I feel really bad & I need helped. The time is 6:40 p.m. on
5/21/2012. Wittness [sic]. James Russell.13
That statement does constitute a contemporaneous recording of plaintiff’s then-existing
physical condition and, therefore, it may be admissible at trial under Federal Rule of
If the statement is introduced at trial, defendants will be entitled to
cross-examination concerning Russell’s identity and his ability to comprehend the
statement he allegedly witnessed.
The motion in limine is DENIED with regard to
plaintiff’s second handwritten statement.
Lastly, defendants ask the court to exclude videos recorded by plaintiff’s counsel
of the depositions taken in this action, that also were transcribed by certified court
reporters who were present at the depositions.14 Defendants state:
First it should be noted that Plaintiff’s witness and exhibits lists
did not indicate that he planned to present any testimony via deposition
in this matter. Nor does the exhibit list reference any of the videos as an
Nevertheless, to the extent Plaintiff’s counsel attempts to
introduce his own personal videos at trial, the video [sic] serve no purpose
other than to confuse, mislead, waste time, or needlessly present
cumulative evidence. Fed. R. Evid. 403. Furthermore, because a certified
court reporte[r] was present and transcribed all depositions in this matter,
Plaintiff’s personal videos would not serve as the best evidence of any prior
testimony in this matter.
Doc. no. 138 (Defendants’ Motion in Limine), at 15-16 (emphasis and alterations
supplied). Plaintiff responds that he
Id. at ECF 3.
Doc. no. 138 (Defendants’ Motion in Limine), at 15.
does not intend to use any video of a deposition as an exhibit. Plaintiff may
seek [to] use short clips from a witness’s deposition, including the synced
transcript text, so that the jury can evaluate the witness’s demeanor, rather
than only listening to the text read to them. Defendants have had copies
of the videos, do not state any objection to the quality of the videos, and
will be provided with video clips plaintiff may seek to use in advance so
that any particular objections can be raised before any clip is offered.
Doc. no. 141 (Plaintiff’s Response to Defendants’ Motion in Limine), at 2 (alteration
and emphasis supplied). As an initial matter, plaintiff may not present a witness by means
of deposition testimony — regardless of whether it be in the form of a transcript, or a
The pretrial order entered in this action specified that the parties must
appropriately indicate on their witness lists “which of their primary and optional
witnesses they expect to present by means of depositions.”15
Plaintiff’s witness list —
albeit, filed prior to the entry of the pretrial order — does not indicate any witnesses he
expects to present by means of deposition testimony.16
Moreover, plaintiff did not
supplement his prior witness list, after the entry of the pretrial order, to reflect that some
witnesses would be presented through deposition testimony.
Even so, to the extent that plaintiff seeks to use the video deposition excerpts for
impeachment purposes, the court reserves ruling on this aspect of defendants’ motion,
and will address defendants’ objections to individual video clips, in context, during trial.
Doc. no. 130 (Pretrial Order), at 9-10 (emphasis supplied).
See doc. no. 128.
II. Plaintiff’s Motion
Plaintiff’s motion states, in full:
Plaintiff requests that the Court, in limine and before trial, instruct
defendant’s [sic] counsel, defendant [sic], and any witnesses called by
defendant [sic] to refrain from commenting at any time during the trial of
this case or at any other time in the presence of the jury concerning any of
the following matters:
Evidence regarding prior and subsequent alleged
misconduct by plaintiff, including arrests, convictions, probation
revocations, failure to pay fines, etc. Evidence of any arrest, conviction,
incarceration, probation, revocation, etc., excepting proof of a conviction
admissible under Rule 609 offered as impeachment, is not relevant to any
issue, constitutes inadmissible character evidence, and, even if somehow
minimally relevant to some “other purpose” under Rule 404(b), would be
inadmissible under FRE 403, as the probative value would be substantially
outweighed by the danger of unfair prejudice.
Evidence regarding [plaintiff’s] failure to pay child
support. [Plaintiff] requests that evidence regarding his failure to pay child
support be excluded as irrelevant and inadmissible under Rule 403, as the
probative value would be substantially outweighed by the danger of unfair
Doc. no. 139 (Plaintiff’s Motion in Limine), at 1-2 (boldface emphasis in original,
Defendants respond that, to the extent plaintiff’s motion “fails to
identify any specific testimony or documents to which Defendants may respond,
Defendants reserve the right to address specific evidence as testimony proceeds which
they believe to be relevant and admissible.”17
They also assert that evidence regarding
Doc. no. 142 (Defendants’ Response to Plaintiff’s Motion in Limine), at 1-2.
the “reason for Plaintiff’s incarceration during the time period in question” is admissible
as res gestae evidence.18
The Eleventh Circuit has stated that evidence of other crimes,
wrongs, or acts falls outside the scope of Federal Rule of Evidence 404(b)19 when it is:
“(1) an uncharged offense which arose out of the same transaction or series of
transactions as the charged offense, (2) necessary to complete the story of the crime, or
(3) inextricably intertwined with the evidence regarding the charged offense.”
States v. Baker, 432 F.3d 1189, 1205 n.9 (11th Cir. 2005).
The res gestae doctrine is not applicable to the present civil action.
any possible probative value in testimony regarding plaintiff’s criminal history would be
substantially outweighed by the danger of unfair prejudice.
See Fed. R. Evid. 403.
Accordingly, plaintiff’s motion is GRANTED, to the extent that defendants may not
introduce evidence of plaintiff’s criminal history, except for impeachment purposes as
allowable under Federal Rule of Evidence 609.
The court similarly concludes that any probative value in testimony that plaintiff
has failed to pay child support is substantially outweighed by the risk of unfair prejudice.
Accordingly, that aspect of plaintiff’s motion also is GRANTED.
DONE and ORDERED this 6th day of July, 2016.
Id. at 2.
That rule prohibits the use of evidence of a crime, wrong, or other act “to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1).
United States District Judge
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