Harris v. Lee-Pow et al.

Filing 101

MEMORANDUM AND ORDER denying 91 Motion in Limine. Signed by Judge Marvin J. Garbis on 2/5/2016. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ALAINA HARRIS

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Plaintiff

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v.

* Civil Action MJG-14-1529

CHERYL LEE-POW, D.C., et al.

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Defendants
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MEMORANDUM AND ORDER
The Court has before it Plaintiff's Motion in Limine
Regarding Plaintiff's Fall [ECF No. 91] and the materials
submitted relating thereto.

The Court finds that a hearing is

unnecessary.
By the instant motion, Plaintiff seeks to exclude from the
trial any reference to a purported "fall" by Plaintiff on August
24, 2011.
Plaintiff admits that she drank alcohol heavily on August
23, 2011, went to bed and "woke up on the floor" on the 24th.
Pl.’s Dep. 176, Mot. Ex. 1, ECF No. 91-2.

The medical notes of

a treating neuropsychologist, Dr. Ekdom, state, as to the
incident, that Ms. Harris "awoke at 7 a.m. and dropped to the
floor when she attempted to get out of bed."

Barry Ekdom,

Ph.D.'s Neuropsychological Evaluation at 1, Mot. Ex. 2, ECF No.
91-3.

Plaintiff can, and apparent does, deny that she fell to the
floor.

However, there is an adequate evidentiary basis for

Defendants to contend, and the jury to find, that she fell.
First, Harris herself testified that she woke up on the
floor.

That alone could be enough.

However, her statement to

Dr. Ekdom is manifestly sufficient to establish that she
"dropped" to the floor and a jury could, quite reasonably, find
that a "drop" would fairly be referred to as a "fall" to the
floor.
Plaintiff presents the argument that the statement in Dr.
Ekdom's notes is inadmissible hearsay.

However, Dr. Ekdom's

notes were business records pursuant to Rule1 803(6). Of course,
the contents of a business record are not necessarily admissible
for their truth.

However, the notes are admissible to prove

that Ms. Harris made the statement to Dr. Ekdom.

The statement

is not hearsay and admissible for its truth as a statement of an
adverse party pursuant to Rule 801(d)(2)(A).
Accordingly, Plaintiff's Motion in Limine Regarding
Plaintiff's Fall [ECF No. 91] is DENIED.
SO ORDERED, on Friday, February 5, 2015.
/s/__________
Marvin J. Garbis
United States District Judge
1

All “Rule” references herein are to the Federal Rules of
Evidence.
2