Banford et al v. Entergy Nuclear Operations, Inc.
Filing
172
OPINION AND ORDER denying Plaintiffs' request to exclude 2 videos (see 141 ). Signed by Judge William K. Sessions III on 9/15/2014. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DAVID BANFORD,
ROBERT MILLER,
GARY STRATTON, and
SCOTT MCGRATTY
Plaintiffs,
v.
ENTERGY NUCLEAR
OPERATIONS, INC.
Defendant.
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Case No. 2:12-cv-131
Opinion and Order
Plaintiffs David Banford, Robert Miller, Gary Stratton and
Scott McGratty bring this suit against Defendant Entergy Nuclear
Operations, Inc. (“Entergy”) challenging their designation as
exempt employees for purposes of overtime pay under the Fair
Labor Standards Act and related state statutes.
Plaintiffs work
at Vermont Yankee, a nuclear power plant owned by Entergy, as
Security Shift Supervisors (“SSS”).
Trial is scheduled to begin
on September 15, 2014.
On August 15, 2014 Defendant filed its Submission Regarding
Evidence and Other Trial Issues in which it announced its
intention to introduce two videos at trial not previously
produced in discovery: (1) a video of a tabletop exercise
conducted by the Training Department at Vermont Yankee (“the
tabletop video”) and (2) an industry video that describes how
security at a nuclear power plant is handled (“the industry
video”).
In their Response, Plaintiffs noted that they would
“strenuously object” to the introduction of these videos at
trial.
Pl. Resp. to Def.’s Submission Regarding Evid. and Other
Trial Issues at 2.
At a pre-trial hearing on September 1, 2014 Plaintiffs
first argued that the videos contained non-admissible hearsay.
The court requested additional briefing on the admissibility of
the videos, which the parties submitted on September 9, 2014.
For the reasons stated below, Plaintiff’s request to
exclude the videos is denied.
Factual Background
The tabletop video was created by the security training
department at Vermont Yankee as a demonstration of the tabletop
training exercises the department regularly conducts with
Security Shift Supervisors.
around a multi-level map.
It features four men standing
One of the men presents a description
of a hypothetical security breach and the other three respond
with what actions they would take in response in real time.
Occasionally text appears on the screen when the speaker uses an
acronym or jargon and this text spells out or explains the
potentially unfamiliar word or phrase.
The footage of the four
men is occasionally intercut with several aerial photographs of
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Vermont Yankee with text and arrows pointing to specific areas
for reference.
It is 24 minutes and 5 seconds long.
Entergy provided affidavits from Chris Hager, Senior
Security Trainer at Vermont Yankee, Ed Wilson, former Senior
Security Trainer at Vermont Yankee, and Jeff Parker, Security
Shift Supervisor at Vermont Yankee.
Def.’s Resp. to Request for
Affidavits Regarding Admissibility of Demonstrative Tabletop
Video, Exs. A-C.
Each affiant confirms the video fairly and
accurately represents tabletop training exercises conducted
regularly at Vermont Yankee through the training department.
Mr. Wilson will be present at trial.
The industry video is an excerpt from Safe and Secure:
Protecting Our Nuclear Energy Facilities, a video created by the
Nuclear Energy Institute presenting “the security measures in
effect at nuclear power plants.”
See Video Database,
http://www.nei.org/resourcesandstats/documentlibrary/safetyandse
curity/video/nuclearpowerplantsecurityvideo.
It features a
computer generated model of a nuclear power plant that
graphically highlights different areas of the plant and their
respective security levels.
It also features video footage of
vehicles being searched, crash resistant gates, concrete
barriers, metal detectors, a card reader and hand scanner, and
security officers in a control room.
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The video is narrated by a
female voice describing what is taking place on screen.
It is 1
minute and 36 seconds long.
Discussion
I.
The Tabletop Video
The Court possesses broad discretion to determine the mode
by which evidence is presented to the jury.
See Fed. R. Evid.
611(a); SR Int’l Bus. Ins. Co. v. World Trade Center Properties,
LLC, 467 F.3d 107, 119 (2d Cir. 2006).
This discretion
generally encompasses the authority to allow the use of
demonstrative aids.
Castaldi v. Land Rover North America, Inc.,
363 Fed App’x 761, 762 (2d Cir. 2009).
Plaintiffs argue that the actors’ statements in the videos
are hearsay not subject to any exception.
803.
Fed. R. Evid. 802,
Hearsay is “a statement that . . . a party offers in
evidence to prove the truth of the matter asserted in the
statement.”
Fed. R. Evid. 801(c).
Entergy does not intend to
offer the tabletop exercise video to prove the truth of the
statements in the video but rather to demonstrate how one of the
training exercises that the Plaintiffs engage in as part of
their job is conducted.
Def.’s Resp. at 2.
Entergy does not
seek to admit hearsay because statements that are not offered
for their truth are not hearsay.
Demonstrative aids may be offered to illustrate or explain
the testimony of witnesses if they are a fair and accurate
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representation of that testimony.
See United States v. Yousef,
327 F.3d 56, 158 (2d Cir. 2003); 2 McCormick On Evid. § 214 (7th
ed.).
The affidavits from Vermont Yankee employees state that
the tabletop video is a fair and accurate representation of
tabletop exercises regularly conducted in the Training
Department.
Defendant does not claim it will introduce the
video to prove the truth of “the duties of the SSS under an
alleged hypothetical event” as Plaintiffs suggest but rather to
demonstrate to the jury what a tabletop exercise looks and
sounds like.
Pls.’ Resp. at 3.
Plaintiffs also argue that the video evidence is admissible
as demonstrative evidence only if it depicts events not
reasonably conveyed in court and that on balance are more
probative than prejudicial under Fed. R. Evid. 403(b).
Plaintiffs cite two cases to support their argument.
distinguishable.
Both are
First, in Thompson v. TRW Automotive U.S., No.
2:09-cv-1375 LLC, 2014 WL 2612271 (D. Nev. June 11, 2014) the
court declined the plaintiff’s request to pre-admit two day-inthe-life videos because the witnesses featured gave statements
concerning the events of the accident at issue and were planning
to testify at trial.
Next, in Bolstridge v. Central Maine Power
Co., 621 F. Supp. 1202 (D. Me. 1985) the court also declined to
admit a day-in-the-life video in which witnesses gave statements
that could easily be presented in court.
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The video did not
convey observations of witnesses to the jury more fully or
accurately than the witness could have conveyed through the
medium of conventional, in-court examination.
Id. at 1204.
These witnesses’ statements, unlike those in the tabletop video,
were offered for their truth so cross-examination was crucial.
Moreover, Plaintiffs do not explain how a real time
demonstration of a tabletop exercise could be conveyed easily in
court.
The video may help the jury visualize and better
comprehend witness testimony about how the plant is laid out and
what a tabletop exercise entails.
Finally, Plaintiffs argue the video is more prejudicial
than probative but do not explain the source of the prejudice.
Plaintiffs may be referring to the relatively late production of
the video.
Entergy contends that everything contained in the
video has long been disclosed to the Plaintiffs and that the
video reflects volumes of deposition testimony and documents
produced in discovery.
Plaintiffs should already be on notice
as to what a tabletop exercise is and may cross examine Mr.
Wilson about the scenario presented in the video.
The Court
finds that the video’s value in visually presenting an example
for the jury’s reference outweighs any prejudice to the
Plaintiffs resulting from its late production.
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II.
The Industry Video
Defendant’s September 5, 2014 Response does not
specifically address the purpose for which Entergy intends to
introduce the industry video nor does it proffer any foundation
for its admission.
It does not appear, however, that Defendant
intends to introduce the industry video to prove the truth of
any statements it contains.
Rather Entergy may seek to present
visual representations of specific areas within a nuclear power
plant and plant security features.
If a witness can lay a
foundation that the video fairly and accurately represents the
plant’s layout and security features and the Defendant does not
intend to introduce the video for the truth of any statements
contained in the video, it may be admissible.
Resolving this
issue will be a question for trial and it is therefore
inappropriate to exclude the video at this time.
Defendant
shall proffer introduction of the video during trial outside the
presence of the jury before its admission.
Conclusion
The Court denies Plaintiffs’ request to exclude both
videos.
Dated at Burlington, in the District of Vermont this 15th
day of September, 2014.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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