Jahangiri v. Petsmart,Inc.

Filing 94

ORDER ON OBJECTIONS TO WITNESSES 74 . IT IS SO ORDERED. DATED this 25th day of February, 2015, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

llONN[E M . .JAHANGIRI, individually,
Plaintiff,

Case No.: 3:12-cV-1577-AC
ORDER ON
013.JECTIONS TO WITNESSES

v.

l'KlfSMAil.T, INC., an Arizona
corporation,
Defendant.

A COSTA, Magistrale Judge:
This order addresses Defendant PetSmart, Inc.'s ("Defendant") objections to Plaintiffs
wi lnesses; Plaintiff13onnie Jahangiri 's ("Plaintiff'') has not objected to any of Defendant's witnesses.
The court has also issued a separate order containing its rnlings on the parties' respective motions
in limine. In the event of a conflict between this order and the court's ruling on the paiiies' motions
in limine, the court's motion in limine rnlings control.

ORDER ON 013JECTIONS TO WITNESSES 1

Plaintiff's Witnesses

l. ObiITtion to cumulative evidence.
RULKNG: SUSTAINED in part, OVERRULED iu part.
Defendant asserts a single, general objection of cunrnlativeness to Plaintifrs witnesses.
Specifically, Defendant objects to the number of witnesses Plaintiff has listed whose testimony will
be "solely offered to describe the witness's perceived condition of Plaintiff before and after her
alleged fall on September 2, 2010." Plaintiff responds that Defendant's objection is untimely and
that any cumulative nature of the testimony will not be evidence until trial.
Plaintiff lists fourteen witnesses, eight of whom are listed as witnesses who will describe
their respective observations of Plaintiffs physical condition and her pain and suffering after her
September 2, 20 l 0 fall. Of these eight witnesses, five are identified as members of Plaintiffs family,
two are identified as friends of Plaintiff, and one is identified as Plaintiffs pastor. Plaintiff also is
listed as one of her fourteen trial witnesses, and she likely will also testify about her physical
condition after her fall.
Under Federal Rule of Evidence 403, the court may prevent the introduction of relevant
evidence if the pmty is "needlessly presenting cumulative evidence."

The key inquiry is

repetitiveness; evidence that overlaps with other evidence, or similar evidence that varies in
persuasive force, is not necessarily cumulative.

CHRISTOPHER B. MUELLER & LAIRD C.

KIRKPATRICK, FEDERAL EvrnENCE § 96 (2nd ed. 1994). The court's discretion should be exercised
"in a discriminating fashion," and includes "the power to limit both the amount of evidence admitted
for a particular purpose and the number of witnesses a party may call for one purpose." It/.,
The Plaintiff's witness statements provide some guidance to the court, despite their

ORDER ON OBJECTIONS TO WITNESSES 2

sparseness. Plaintiffs two friends, Heidi Boise and Nicole Fellers, will speak to different aspects
oi'Plainliffs activities. Boise will testify to her observations of Plaintiffs "need for assistance with
driving and home chores." Fetters will testify to assisting Plaintiff with her 2012 move. Each
wil11es,; may so teslify. Plaintiffs pastor, Bob Dick, will testify to "the assistance he organized
ihrough the church lo address some of plaintifCs physical limitations at vmions times since the fall."
This leslimony is not repetitive of the testimony to be given by Boise or Fellers, and thus is not
cumulative. Accordingly, these three witnesses may testify to these specific observations, and each
may describe their observations of Plaintiffs pre-fall condition as context for their testimony.
l'lainliff is caulioned, however, that these witnesses' testimony should not be duplicative of one
another so that cumulativeness is avoided.
Plaintiffs llve family members present a different evidentimy situation, as each is proposed
to lestify lo Iheir observations of Plaintiff"both before and after" Plaintiffs fall. Here, Plaintiffs
witness statements disclose little, if any, distinction among the testimony of Plaintiffs five familymember witnesses, thus making more likely their collective testimony will be repetitive.
Accordingly, from these five witnesses Plaintiff must choose three to testify al trial. The court
cautions Plaintiff that those family-member witnesses Plaintiff chooses to testify about her injuries
siill are subject to Rule 403 's prohibition on presenting cumulative evidence, and that the court will
enforce the rule at trial, if necessary.
IT JS SO ORDERED.
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c;-rZ

DATED this Cl -

,

clay ofl•ebruary, 2015.

ates Magistrate Judge
ORDER ON OBJECTIONS TO WITNESSES 3