Doe v. NCL (Bahamas) Ltd.

Filing 147

OMNIBUS ORDER ON MOTIONS IN LIMINE. Signed by Judge Marcia G. Cooke on 11/27/2012. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-22230-Civ-COOKE/TURNOFF
JANE DOE,
Plaintiff
vs.
NCL (Bahamas) LTD.,
Defendant.
_________________________________/
OMNIBUS ORDER ON MOTIONS IN LIMINE
THIS MATTER is before me on the parties’ Joint Summary of Motions in Limine
(ECF No. 118). Jane Doe (“Plaintiff”) has presented seven motions in limine and
Defendant NCL Bahamas LTD. (“Defendant”) has presented eleven motions in limine. I
will address each Motion in turn.1
“The purpose of an in limine motion is to aid the trial process by enabling the
Court to rule in advance of trial on the relevance of certain forecasted evidence, as to
issues that are definitely set for trial, without lengthy argument at, or interruption of, the
trial.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y.
2008) (citing Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)). Any evidence,
tending to make the existence of any fact of consequence more probable or less probable,
is relevant and admissible, except as the Federal Rules of Evidence otherwise provide.
Fed. R. Evid. 401; 402. Relevant evidence “may be excluded if its probative value is

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The facts of this case are set forth in my November 14, 2012 Order granting in part Defendant’s
Motion for Summary Judgment. (ECF No. 134).

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substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury . . . .” Fed. R. Evid. 403.
I have reviewed the parties’ arguments, the record, and the relevant legal
authorities. For the reasons explained in this order, it is ORDERED and ADJUDGED
that the parties’s Motions in Limine are GRANTED, DENIED or GRANTED in part
and DENIED in part, as follows:
1.

Plantiff’s Motion in Limine No. 1 to exclude the reference to acts of

infidelity or any basis for Plaintiff’s divorce is GRANTED. See Joint Summary of Mot.
in Limine 4. Reference to acts of infidelity, Plaintiff’s divorce or the basis for Plaintiff’s
divorce would be unduly prejudicial and must be excluded pursuant to Federal Rule of
Evidence 403; see also Peake v. Patterson, 05-CV-1687, 2007 WL 517892, at *1 (M.D.
Pa. Feb. 12, 2007) (finding a reference to a divorce prejudicial). Further, these events
occurred fifteen years ago and have no bearing on the Plaintiff’s current psychological
state. See, e.g., Henderson v. Choctaw County City of Hugo Hosp. Auth., CIV-09-125KEW, 2010 WL 2160334, at *1 (E.D. Ok. May 27, 2010) (finding a 32 year old divorce
irrelevant).
2.

Plantiff’s Motion in Limine No. 2 to exclude the reference to Plaintiff’s

thought of suicide or suicide attempt is GRANTED. See Joint Summary of Mot. in
Limine 6. The probative value of such a reference is far exceeded by the danger of unfair
prejudice, confusion of the issues, and may mislead the jury. The suicide attempt is also
too remote to be relevant to the Plaintiff’s current psychological state. See, e.g., Dodd v.
Workman, CIV-06-140-D, 2011 WL 3299101, at *25 (W.D. Ok. Aug. 2, 2011) (finding
that the existence of traumatic events in the litigant's remote past that might have

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prompted him to make suicidal gestures does not establish that litigant is constantly
suicidal, easily rendered suicidal, or otherwise mentally ill).
3.

Plaintiff’s Motion in Limine No. 3 to exclude the reference to Plaintiff’s

alleged abortion is GRANTED. The Motion is unopposed. See Joint Summary of Mot.
in Limine 8. A reference to Plaintiff’s abortion would be highly prejudicial and its
probative value far exceeded by the danger of unfair prejudice, confusion of the issues,
and may mislead the jury. Jones v. Rent-A-Ctr., Inc., 281 F. Supp. 2d 1277, 1284 (D.
Kan. 2003) (finding that knowledge of plaintiff's abortion could have caused the jury to
decide the case on an improper basis by making a value judgment regarding plaintiff).
Accordingly, evidence related to Plaintiff’s alleged abortion is not admissible pursuant to
Rule 403.
4.

Plaintiff’s Motion in Limine No. 4 to exclude the reference to Plaintiff’s

promiscuity, engaging in other sexual behavior, and Plaintiff’s sexual predisposition is
GRANTED in part and DENIED in part. See Joint Summary of Mot. in Limine 9.
Evidence offered to prove that a victim engaged in other sexual behavior or evidence
offered to prove a victim's sexual predisposition is not admissible in a civil proceeding
involving alleged sexual misconduct. Fed. R. Evid. 412(a). Further, the risk of unfair
prejudice may exceed the probative value of a reference to Plaintiff’s promiscuity or
sexual predisposition. Fed. R. Evid. 403. However, evidence offered to prove a victim’s
sexual behavior or sexual predisposition may be admissible if its probative value
substantially outweighs the danger of harm to any victim and of unfair prejudice to any
party. Fed. R. Evid. 412. Reference to Plaintiff’s engaging in sexual behavior within the
next day or few days after the assault is relevant to the determination of Plaintiff’s

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psychological state after the alleged rape. Accordingly, evidence relating to Plaintiff’s
sexual behavior in the aftermath of the alleged rape outweighs the danger of unfair
prejudice and may be offered pursuant to Federal Rule of Evidence 412(b).
5.

Plaintiff’s Motion in Limine No. 5 to exclude the reference to Plaintiff’s

religious belief or lack thereof is GRANTED. See Joint Summary of Mot. in Limine 11.
A reference to Plaintiff’s religious belief, including the fact that her father allegedly was
a Baptist minister is prejudicial and its low probative value is far exceeded by the danger
of unfair prejudice, confusion of the issues, and may mislead the jury.
6.

Plaintiff’s Motion in Limine No. 6 to exclude photographs depicting

Plaintiff participating in “body shots” is DENIED. See Joint Summary of Mot. in Limine
13. These photographs were taken shortly after the pub crawl event and before the
alleged assault. See id. at 14. Plaintiff has placed her level of intoxication, appearances
and demeanor at issue in this case, therefore, photographs depicting Plaintiff right after
the pub crawl event are relevant and probative. To the extent that these pictures are
offered to show Plaintiff’s level of intoxication, appearances and demeanor, these
pictures will be admitted.
7.

Plaintiff’s Motion in Limine No. 7 to exclude reference to Plaintiff

“necking” or otherwise interacting in a romantic way during the white party is DENIED.
See Joint Summary of Mot. in Limine 15. Reference of Plaintiff interacting in a romantic
way with a man the night after the alleged rape is relevant to the determination of
Plaintiff’s psychological state after the alleged rape and therefore of the determination of
damages and may be offered pursuant to Federal Rule of Evidence 412(b).

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8.

Defendant’s Motion in Limine No. 1 to exclude videos from Youtube and

similar websites is GRANTED. See Joint Summary of Mot. in Limine 17. Videos of
pub crawl events on other vessels operated by Defendant are not relevant to the facts of
the case and may misled the jury and cause a confusion of the issues. Accordingly, they
are not admissible pursuant to Rule 403.
9.

Defendant’s Motion in Limine No. 2 to exclude news segments or reports

regarding the service of alcohol on cruise ships is GRANTED. See Joint Summary of
Mot. in Limine 19. News segments or reports are not relevant to the facts of the case and
may misled the jury and cause a confusion of the issues. Accordingly, they are not
admissible pursuant to Rule 403.
10.

Defendant’s Motion in Limine No. 3 to exclude reference to Plaintiff’s

prior kidney donation is GRANTED. See Joint Summary of Mot. in Limine 21. Plaintiff
seeks to admit evidence referring to her prior kidney donation in order to explain why she
underwent a psychological screening that revealed she had suicidal thoughts. Id. at 22.
The psychological screening was part of the procedure to donate a kidney. Id. Since
Plaintiff’s Motion to exclude reference to her thoughts of suicide and suicide attempt has
been granted, there is no reason to discuss why she underwent a psychological screening.
Additionally, reference to Plaintiff’s kidney donation has no probative value and may
cause the jury to confuse the issues.
11.

Defendant’s Motion in Limine No. 4 to exclude evidence or testimony

regarding the prior accident and injuries suffered by Plaintiff’s ex-husband is
GRANTED. See Joint Summary of Mot. in Limine 23. This Motion is unopposed. See
id. at 23. The fact that Plaintiff allowed her ex-husband to continue to live with her in

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order to care for him is wholly irrelevant to the facts of the case. See Fed. R. Evid. 402
(evidence must be relevant to be admissible). Reference to Plaintiff’s ex-husband’s
accident is, therefore, not admissible pursuant to Rule 402.
12.

Defendant’s Motion in Limine No. 5 to preclude reference to Florida

Department of Law Enforcement Report (“FDLE”) is GRANTED in part and DENIED
in part. See Joint Summary of Mot. in Limine 24. Upon proper authentication and
foundation, such record may be admissible under Rules 803(8) of the Federal Rules of
Evidence. The FDLE report states that a partial DNA profile, foreign to Plaintiff, was
found in her sexual assault kit. See Joint Summary of Mot. in Limine 24; Pl’s Opp. to
Def.’s Mot. for Summ. J. Ex D. Plaintiff, however, may only refer to the report as
evidence that a foreign partial DNA profile was found and not as conclusive proof that a
sexual assault occurred.
13.

Defendant’s Motion in Limine No. 6 to exclude reference to the “cruise

industry” is DENIED without prejudice. See Joint Summary of Mot. in Limine 26. I
will not enter a blanket order excluding this type of evidence, as it may be relevant to the
Defendant’s duty of care and not unduly prejudicial to Defendant. I will consider
challenges to specific evidence on a case-by-case basis.
14.

Defendant’s Motion in Limine No. 7 to exclude prior alleged incidents on

Defendant’s vessels where alleged assailant and/or alleged victim was a crewmember
were passengers is DENIED. See Joint Summary of Mot. in Limine 28. The occurrence
of prior sexual assaults on the Defendant’s vessels is relevant to the issue of Defendant’s
duty to warn, and specifically the foreseeability that a sexual assault may occur. Since
Count I, in which Plaintiff alleged she was assaulted by a crewmember, was dismissed,

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there is no risk of confusion regarding the fact that the assailant in this case was a
passenger and not a crewmember. Order granting in part Def.’s Mot. for Summ. J., ECF
No. 134. Regarding Count II, Plaintiff sued Defendant on the theory that (1) Defendant
breached a duty to not over serve Plaintiff alcohol and (2) Defendant breached a duty to
warn Plaintiff that she may be the target of a physical attack or sexual assault. See
Comp. 5. Incidents of physical attack and sexual assaults are, therefore, relevant.
Whether the victim was in a state of drunkenness is not necessarily relevant to the issue
of duty to warn. Thus, incidents involving sober or inebriated victims are admissible.
Accordingly, incidents of physical attack and sexual assaults, regardless of the status of
crewmember or passenger of the victims or assailant, or of the state of drunkenness of the
victim may be offered as evidence.
15.

Defendant’s Motion in Limine No. 8 to exclude and/or limit evidence of

prior alleged incidents on the Defendants’ vessels where alleged assailant and alleged
victims were passengers is DENIED. See Joint Summary of Mot. in Limine 30. For the
reasons explained above, incidents of physical attack and sexual assaults, regardless of
the status of crewmember or passenger of the victim, or the status of crewmember or
passenger of assailant, or of the state of drunkenness of the victim may be offered as
evidence.
16.

Defendant’s Motion in Limine No. 9 to preclude Plaintiff from falsely

representing that Defendant withheld, failed to produce, or otherwise “hid” CCTV
footage is GRANTED. See Joint Summary of Mot. in Limine 33. Plaintiff did not put
forward any evidence that the CCTV footage existed. See Order granting in part Def.’s
Mot. for Summ. J. 5-6. Therefore, Plaintiff shall be precluded from making any

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statement or reference to a possible spoliation of evidence. Plaintiff, however, may offer
evidence supporting the fact that Defendant could have placed more cameras in public
spaces, but not that Defendant had a duty to do so or a duty to monitor the existing
cameras. Mizener v. Carnival Corp., No 05–22965, 2006 U.S. Dist. LEXIS 44332, at
*10 (S.D. Fla. July 16, 2006) (finding that placement of a camera aboard a vessel does
not trigger a duty to monitor that camera for the safety and security of the vessel's
passengers), Doe v. Royal Caribbean Cruises, Ltd, 11-23323-CIV, 2011 WL 6727959, at
*3 (S.D. Fla. Dec. 21, 2011) (“[T]he mere installation of camera does not trigger the duty
to monitor them”).
17.

Defendant’s Motion in Limine No. 10 to admit evidence of Plaintiff’s prior

suicide attemps and associated hospitalization and treatment is DENIED. As discussed
above, the probative value of such a reference is far exceeded by the danger of unfair
prejudice, confusion of the issues, and may mislead the jury. The probative value of a
suicide attempt that occurred over 15 years ago is also too remote to be relevant to the
Plaintiff’s current psychological state.
18.

Defendant’s Motion in Limine No. 11 to exclude reference to Plaintiff’s

alleged contraction of human papillomavirus (“HPV”) is GRANTED. See Joint
Summary of Mot. in Limine 38. The Motion is unopposed. See id. Since the parties
have not placed Plaintiff’s contraction of HPV at issue in this case, the Motion is granted.
DONE and ORDERED in chambers, at Miami, Florida, this 27th day of
November 2012.

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Copies furnished to:
William C. Turnoff, U.S. Magistrate Judge
Counsel of record

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