Martin v. Fab-Con Inc et al
ORDER AND REASONS - granting in part and denying in part MOTION 33 in Limine to filed by Michael to exclude evidence of plaintiff's criminal record and any past drug and alcohol use. Defendants may introduce evidence of plaintiff's previous felony convictions, but evidence of defendant's probation violation and of his drug and alcohol use is inadmissible.. Signed by Chief Judge Sarah S. Vance on 3/21/14.(jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FAB-CON, INC., ET AL.
ORDER AND REASONS
Plaintiff Michael Martin moves to exclude evidence of his
criminal record and any past drug and alcohol use.1 For the
following reasons, the Court GRANTS IN PART and DENIES IN PART
Plaintiff Michael Martin alleges that he slipped in a puddle
of diesel oil while working for defendant Fab-Con aboard the
quarterbarge UNITY, a vessel owned by defendant Equipment Co.,
LLC, and chartered by defendants Barges Unlimited Inc. and CCR,
LLC.2 Plaintiff allegedly suffered a herniated lumbar disc and a
lumbar strain as a result of his fall. He sued defendants,
seeking damages and maintenance and cure.
Martin moves the Court "to exclude from introduction, use or
admission at trial [his] criminal and traffic violations, any
R. Doc. 33.
See R. Doc. 1; R. Doc. 19.
allegation of 'drug' or alcohol use, together with all documents
and records associated with the foregoing."3 In response,
defendants contend that evidence of plaintiff's felony
convictions and probation violation is admissible on crossexamination under Federal Rule of Evidence 608, because he lied
about them on his Fab-Con employment application.4 Defendants
also argue that the evidence is independently admissible under
Federal Rule of Evidence 609.
Defendants seek to introduce evidence of three of
plaintiff's criminal convictions: an August 18, 2005, conviction
for evading arrest;5 an August 18, 2005, conviction for
aggravated kidnapping;6 and a September 5, 2007, conviction for
simply robbery.7 Each of these three offenses is a felony
punishable by more than one year imprisonment in the convicting
jurisdiction.8 In 2011, when Martin applied for a job with Fab-
R. Doc. 33-3 at 1.
See R. Doc. 38.
See R. Doc. 38-3 at 10-13.
See id. at 17-18.
See id. at 38.
See id. at 12 (crime of evading arrest is a "state jail
felony" punishable by up to two years in jail); Tex. Penal Code
Ann. § 20.04(c) (aggravated kidnapping is a first-degree felony);
R. Doc. 38-3 at 80 (simple robbery is punishable by up to seven
Con, he indicated on his employment application that he had never
been convicted of a felony.9 Accordingly, defendants may inquire
into Martin's felony convictions when cross-examining him because
evidence that he lied on his employment application is probative
of his character for truthfulness. See Fed. R. Evid. 608(b)
("[E]xtrinsic evidence is not admissible to prove specific
instances of a witness's conduct in order to attack or support
the witness's character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of
. . . the witness."); Brossette v. Swift Transp. Co., Civil
Action No. 07-0888, 2008 WL 4809411, at *9 (W.D. La. Oct. 29,
2008) ("The act of lying on an employment application is among
those acts that may be inquired into on cross-examination
pursuant to Rule 608(b)(1)." (collecting cases)).
Moreover, evidence of these convictions is independently
admissible under Rule 609(a), which provides that, in a civil
case, evidence of a criminal conviction for a crime punishable by
death or by imprisonment for more than one year "must be
admitted, subject to Rule 403." The Court finds that these
convictions are admissible under Rule 403 because their probative
value is not substantially outweighed by their prejudicial effect
years at hard labor).
R. Doc. 38-1 at 3.
on the plaintiff. See McIntyre v. Bud's Boat Rental, L.L.C., No.
Civ.A. 02-1623, 2003 WL 22174236, at *3 (E.D. La. Sep. 9, 2003)
(admitting evidence of plaintiff's conviction for unauthorized
entry into an inhabited dwelling under Rule 609(a)).
Evidence of Martin's probation violation, however, is not
admissible under Rule 608 "because it does not speak to his
truthfulness, but is merely a broken promise which indicates a
lack of loyalty to commitments." United States v. Perkins, 287 F.
App'x 342, 349-50 (5th Cir. 2008). Nor is such evidence
admissible under Rule 609, because a probation violation "is
neither a conviction that results in a sentence of more than one
year nor an offense that has as an element 'an act of dishonesty
or false statement by the witness.'" Id. at 350. Defendants have
offered no other theory under which this evidence is admissible.
Accordingly, the Court holds that evidence of Martin's probation
violation must be excluded.
Defendants do not argue that evidence of plaintiff's past
drug and alcohol use should be admissible. Because defendants
have pointed to no theory of relevance for this evidence, and
because such evidence carries a significant danger of unfair
prejudice, see McIntyre, 2003 WL 22174236, at *4, the Court finds
that it must be excluded. See Fed. R. Evid. 403.
For the foregoing reasons, the Court GRANTS IN PART and
DENIES IN PART plaintiff's motion in limine. Defendants may
introduce evidence of plaintiff's previous felony convictions,
but evidence of defendant's probation violation and of his drug
and alcohol use is inadmissible.
New Orleans, Louisiana, this 21st day of March, 2014.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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