Blanchard v. Entergy Louisiana, et al.

Filing 71

ORDER& REASONS that the Defendants' 54 Motion in Limine to Exclude Plaintiff's Exhibits or, Alternatively, to Exclude Specific Evidence is DENIED with respect to the striking of the witness list; is DENIED without prejudice to re-ur ge their motion with respect to evidence of subsequent remedial measures; and is GRANTED with respect to the handwritten notes. IT IS FURTHER ORDERED that evidentiary motions in limine may be filed on or before 5:00 p.m. on May 6, 2016, which motions shall not be not noticed for hearing and opposition to those motion(s) shall be filed no later than 5:00 p.m. on May 10, 2016. Signed by Judge Stanwood R. Duval, Jr on 12/3/15. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAMMY BLANCHARD

CIVIL ACTION

VERSUS

NO. 14-1547

ENTERGY LOUISIANA, LLC, ET AL.

SECTION “K”(2)

ORDER AND REASONS
Before the Court is a Motion in Limine to Exclude Plaintiff's Exhibits or, Alternatively,
to Exclude Specific Evidence (Doc. 54).

Defendants Utility Lines Construction Services, Inc.

("ULCS") and Entergy Louisiana, LLC ("Entergy") seek to preclude plaintiff from filing a
witness list as a result of her failure to do so in a timely fashion. Additionally, defendants seek
to strike certain evidence, specifically, (1) hand-written notes of witnesses which describe the
condition of the plaintiff subsequent to the accident at issue herein and (2) subsequent remedial
measures. Having considered the pleadings, memoranda and the relevant law, the Court finds as
follows.
A decision to strike a late-designated witness or exhibit is committed to a district court's
discretion. In re Katrina Canal Breaches Consol. Litig., 2009 WL 1208357, at *1 (E.D. La.
Apr. 30, 2009), citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir.1990). The court
reviews four factors in deciding whether to strike such a witness: “(1) the explanation for the
failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in
allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Betzel
v. State Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007).
an exhibit. The Court will address each request.

The same analysis applies to striking

Exhibit List
Plaintiff admits there is no explanation for the failure to include an exhibit list with the
witness list filed by plaintiff; however, this trial was continued to May 16, 2016. Plaintiff filed
her exhibit list on November 2, 2015 after the continuance was granted. Although this Court
admonishes plaintiff to adhere to all future deadlines, defendants will not be prejudice by
receiving an exhibit list more than six months in advance of trial. Therefore, the motion to strike
the exhibit list is denied.

Hand-Written Notes
The hand-written notes are clearly hearsay and directly relate to the element of damages.
Obviously, defendants cannot cross-examine a written statement. As such, the notes are
excluded as rank hearsay and will be excluded.

Subsequent Remedial Measures
Clearly, under the Federal Rules of Evidence, evidence of subsequent remedial measures
is not allowed except under certain limited circumstances, such as impeachment or–if
disputed–proving ownership, control, or the feasibility of precautionary measures. Fed. R. Evid.
407. The Court will deny this part of the motion without prejudice to re-urge same at the
appropriate time. It is the practice of this Court to review every exhibit to which an objection is
lodged after bench books have been provided to the Court. The Court denies the motion at this
time.

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Motion Practice
Under the original scheduling order for this trial, all substantive motions including
Daubert motions were to be filed no later than September 8, 2015 for hearing on September 23,
2015. However, motions in limine concerning evidence were ordered to be filed five working
days prior to trial. Considering that this case has been continued to May 16, 2016, all parties
shall be allowed to file evidentiary motions in limine on or before 5:00 p.m. on May 6, 2016,
which shall not be not noticed for hearing and opposition to those motion(s) shall be filed no
later than 5:00 p.m. on May 10, 2016. Accordingly,
IT IS ORDERED that the Motion in Limine to Exclude Plaintiff's Exhibits or,
Alternatively, to Exclude Specific Evidence (Doc. 54) is DENIED with respect to the striking of
the witness list; is DENIED without prejudice to re-urge their motion with respect to evidence of
subsequent remedial measures; and is GRANTED with respect to the handwritten notes.
IT IS FURTHER ORDERED that evidentiary motions in limine may be filed on or
before 5:00 p.m. on May 6, 2016, which motions shall not be not noticed for hearing and
opposition to those motion(s) shall be filed no later than 5:00 p.m. on May 10, 2016.
New Orleans, Louisiana, this 3rd day of December, 2016.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT COURT JUDGE si

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