Hiscox Dedicated Corporate Member, Ltd. v. Matrix Group Limited, Inc. et al
Filing
158
ORDER granting 89 MOTION in Limine filed by Hiscox Dedicated Corporate Member, Ltd. to the extent that the Court finds the results of the polygraph examinations and the testimony of the polygraph examiners inadmissible. Signed by Judge Virginia M. Hernandez Covington on 5/31/2011. (CR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HISCOX DEDICATED CORPORATE
MEMBER, LTD,
Plaintiff,
v.
CASE NO:
8:09-cv-2465-T-33AEP
MATRIX GROUP LIMITED, INC.
and LOUIS ORLOFF,
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff's
Motion to Strike Defendants' Expert Designation of David
Bryant and Joe H. McDuffie (Doc. # 89).
Defendants filed an
Opposition thereto (Doc. # 111), and Plaintiff filed a Reply
thereto (Doc. # 123).
Plaintiff requests that the Court strike the expert
designations of the polygraphers and strike their respective
reports.
Plaintiff contends that the Eleventh Circuit has
generally applied a per se rule that polygraph evidence is
inadmissable in both civil and criminal cases, save for two
very narrow exceptions which do not apply in the instant case.
Plaintiff further alleges that Defendants failed to provide
notice and an opportunity to participate in the polygraph
examination until after Defendants obtained favorable results.
Magistrate Judge Anthony E. Porcelli reached and denied the
motion as to the notice issue finding adequate notice was
provided. The remainder of the issues were properly construed
as a motion in limine and are now before this Court for
consideration.
Defendants have designated Bryant and McDuffie as "expert
polygraph examiners" and seek to have the polygraph examiners
testify at trial as to the results of polygraph examinations
taken by Defendant Louis Orloff.
The Eleventh Circuit has held that polygraph evidence is
no longer per se inadmissible and may be admitted (a) if the
parties stipulate in advance as to the test's circumstances
and the scope of its admissibility, or (b) under certain
circumstances, to impeach or corroborate the testimony of a
witness at trial. United States v. Piccinonna, 885 F.2d 1529,
1535-37 (11th Cir. 1989).
In enunciating these modifications
to the per se inadmissibility of polygraph evidence, the
Eleventh Circuit was careful to note, however, that neither
modification to the per se exclusionary rule "preempt[s] or
limit[s] in any way the trial court's discretion to exclude
polygraph expert testimony on other grounds under the Federal
Rules of Evidence."
Id. at 1536.
It is undisputed that there has been no stipulation
2
between the parties regarding the polygraph examinations or
their admissibility, and the first exception, therefore, does
not apply.
The second exception, to impeach or corroborate
the testimony of a witness at trial, is subject to three
preliminary conditions: "(1) the party planning to use the
evidence at trial must provide adequate notice to the opposing
party that the expert testimony will be offered; (2) the
opposing party must be given a reasonable opportunity to have
its
own
polygraph
substantially
the
expert
same
administer
questions;
and
a
test
covering
(3)
the
polygraph
administrator's testimony must be admissible under the Federal
Rules of Evidence governing the admissibility of corroboration
testimony."
United States v. Gilliard, 133 F.3d 809, 812
(11th Cir. 1998)(citing Piccinonna, 885 F.2d at 1536)(internal
quotations omitted)).
The
Magistrate
Judge
having
found
that
notice
was
adequate, this Court finds that the first two prerequisites
have been satisfied. As to the third prerequisite, Plaintiff
argues that it has no intention of presenting character
evidence
at
trial
such
that
Defendants
could
argue
entitlement to admit polygraph evidence in rebuttal.
an
Federal
Rule of Evidence 608 limits the use of opinion or reputation
evidence to establish the credibility of a witness only after
3
the
character
attacked.
of
the
witness
for
truthfulness
has
been
Piccinonna, 885 F.2 at 1536.
Plaintiff argues that it will address the accuracy of
specific statements in support of its concealment and fraud
coverage defense, but will do so by demonstrating explicit
contradictions
in
the
record.
This
Court
agrees
with
Plaintiff that pointing out to the jury specific instances of
dishonesty relevant to the issues in the case does not amount,
as a matter of law, to an attack on the Defendants' character
for truthfulness.
See United States v. Drury, 396 F.3d 1303,
1315 (11th Cir. 2005)(upholding trial court's exclusion of
evidence of criminal defendant's truthful character where the
"attack" consisted solely of "Government counsel pointing out
inconsistencies in testimony and arguing that the accused's
testimony is not credible")(citing United States v. Danehy,
680 F.2d 1311, 1314 (11th Cir. 1982)); Kauz v. United States,
188 F.2d 9, 10 (5th Cir. 1951)(holding "[t]he mere fact that
a witness is contradicted by other evidence in the case does
not constitute an attack upon his reputation for truth and
veracity"); Lakes v. Buckeye State Mut. Ins. Ass'n, 168 N.E.2d
895, 899 (Ohio Ct. App. 1959)(holding that where an insurance
company pleads the defense of concealment and fraud, there is
no attack on character without more, as character is not a
4
central issue like it is in libel, slander or malicious
prosecution cases).
Assuming that Plaintiff does not go
beyond its defense of fraud and concealment to attack the
character of Defendants for truthfulness, the Court finds that
this second exception to the per se rule of inadmissibility
has not been satisfied.1
Even if this second exception had been satisfied, the
Court
finds
that
the
evidence
is
not
admissible
expert
testimony under Fed. R. Evid. 702, and, in the alternative,
not admissible under Fed. R. Evid. 403. Courts have generally
held
that
the
admission
of
expert
scientific
evidence
regarding polygraph examinations neither constitutes evidence
based on reliable scientific knowledge nor is it sufficiently
reliable.
See United States v. Canter, 338 F. Supp. 2d 460,
463 (S.D.N.Y. 2004)(analyzing post-Daubert decisions); United
States v. Evans, 469 F. Supp. 2d 1112, 1114-15 (M.D. Fla.
2006); United States v. Henderson, 409 F.3d 1293, 1301-04
(11th Cir. 2005).
In
addition,
any
probative
1
value
attendant
to
the
Plaintiff also argues that even if Defendants could
establish an attack on character for truthfulness, the reports
and the testimony of the polygraph examiners do not comply
with Fed. R. Evid. 608. The Court, however, need not reach
that argument at this juncture.
5
polygraph evidence is significantly outweighed by its highly
prejudicial effect and/or danger of confusing or misleading
the jury and is, therefore, inadmissible pursuant to Fed. R.
Evid. 403.
Defendants also intend to introduce evidence that Orloff
was willing to take a polygraph examination regarding the
alleged arson. The Court, however, finds that any evidence of
an offer by Defendants to submit to a polygraph test is
inadmissible. See Payne v. Geico Indem. Co., No. CIV-01-1414HE,
2002
WL
34439222,
at
*2-3
(W.D.
Okla.
May
17,
2002)(holding that evidence regarding insurer's offer to
submit to a polygraph examination would be inadmissible as
substantive evidence in contract action, although relevant in
a bad-faith action).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff's
Motion
to
Strike
Defendants'
Expert
Designation of David Bryant and Joe H. McDuffie (Doc. # 89),
construed as a motion in limine, is GRANTED to the extent that
the Court finds the results of the polygraph examinations and
the testimony of the polygraph examiners inadmissible.
6
DONE and ORDERED in Chambers in Tampa, Florida, this 31st
day of May, 2011.
Copies:
All Counsel of Record
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?