Goode v. City of Southaven, 3:17-CV-60-MPM-RP

Decision Date07 March 2019
Docket NumberNO. 3:17-CV-60-MPM-RP,3:17-CV-60-MPM-RP
PartiesKELLI DENISE GOODE, Individually, and also as the Personal Representative of Troy Charlton Goode, Deceased, and as Mother, Natural Guardian, and Next Friend of R.G., a Minor, and also on behalf of all similarly situated persons PLAINTIFF v. THE CITY OF SOUTHAVEN, et al. DEFENDANTS
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
ORDER

This cause comes before the Court on Defendant Oliver's motions in limine [515] [517] [519] [521] [523] [525] [527] [529] [531].

Motion in Limine Standard

"The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence." Harkness v. Bauhaus U.S.A., Inc., 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015) (internal citations omitted). When ruling upon motions in limine, the Court notes that "[e]vidence should not be excluded in limine unless it is clearly inadmissible on all potential grounds." Id. Rulings on a motion in limine "are not binding on the trial judge, and the judge may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).

A. Oliver's motion in limine [515] to exclude certain testimony and evidence of lay witnesses

On June 7, 2018, Lemuel D. Oliver, M.D. filed the instant motion along with a supporting memorandum brief. Docs. #515, #543.1 This motion contains eight subparts seeking "to exclude certain testimony and evidence of lay witnesses." Doc. #543 at 1. Oliver's motion was joined in full by Baptist Memorial Hospital-Desoto ("BMH-D"), Doc. #551, and as to "subparts 1, 2, 3, 4, 5, 6, and 8" by the City of Southaven, Todd Bagget, Jeremy Bond, Tyler Price, Joel Rich, Jason Scallorn, Stacie J. Graham, Mike Mueller, William Painter, Jr., Bruce K. Sebring, Joseph Spence, and Richard A. Weatherford (collectively, the "Southaven Defendants"). The next day, Kelli Denise Goode responded to the motion, Doc. #561, and the Southaven Defendants "respond[ed in opposition] to subpart 7 of the Motion, concerning potential trial testimony by Officer Todd Baggett." Doc. #563 at 1; see Doc. #562.

Oliver moves to exclude at trial: (1) "any lay testimony as to standard of care, alleged deviation, causation, cause of death, and any theories unsupported by Plaintiff's experts"; (2) "audio of the video at the scene (a/k/a the McLaughlin video) and [the playing of the] video ... during opening statement"; (3) "Plaintiff and Troy Goode's friends and family['s testimony] as to what occurred at BMH-D prior to Troy Goode's death"; (4) "Troy Goode's family and friends['s testimony] as to their personal loss"; (5) "certain testimony of Nikki Goode"; (6) "certain testimony of Janet Tharpe"; (7) "questions or argument of counsel suggesting that hospital staff refused to treat Troy Goode unless he remained restrained"; and (8) "questions, testimony, or arguments of counsel suggesting the Defendants 'tortured' Troy Goode." Doc. #543 at 1-13. Each exclusion moved for by Oliver will be addressed in turn.

i. First Ground

Oliver moves to prohibit Kelli "from offering any testimony as to standard of care, alleged deviation in the standard of care, and/or causation and any theories unsupported by [her] experts. Moreover, [Kelli] and any of her lay witnesses should be prohibited from offering testimony concerning their personal criticisms of Dr. Oliver ...." Doc. #543 at 1. In response, Kelli offers that she "has no intention of offering any lay opinion as to the standard of care, alleged deviation from that standard, causation or cause of death. To the extent a defendant's questions elicit such testimony, as they have in depositions, [Kelli] is without control to prevent introduction of such evidence." Doc #561 at 1. Accordingly, Oliver's first ground will be granted as unopposed.

ii. Second Ground

Oliver's second ground addresses a video taken by David McLaughlin at the scene of Troy's arrest, which captured, among other things, Troy being loaded into an ambulance. Doc. #543 at 2. According to Oliver, "[t]o the extent that Plaintiff may seek to use this video during opening statement, such a use is improper." Id. Moreover, Oliver moves pursuant to Federal Rules of Evidence 402 and 403 to prohibit the jury from hearing audio of the video as it "contains the comments and conversations of unidentified witnesses who are commenting on their interpretation of the scene and what they were observing [and allowing] this testimony evidence from unknown witnesses would be highly prejudicial." Id at 3.

In response, Kelli contends that "the audio at issue was not made by 'unidentified witnesses.' In fact, Mr. McLaughlin has made declarations in this case discussing that videotape and his interactions with the Southaven police and Fire/EMS personnel." Doc. #561 at 2. Thus, Kelli argues that the "statements made on the video constitute an exception to hearsay—namely, they are present sense impressions ... and excited utterances" under Federal Rule of Evidence 803(1) and (2). Id. Furthermore, Kelli argues that there is no legal basis to prohibit the playing of the video during opening statements. Id.

Hearsay is a statement that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). Hearsay is not admissible unless a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court provide otherwise. Fed. R. Evid. 802.

Rule 803(1) provides that hearsay statements "describing or explaining an event or condition, made while or immediately after the declarant perceived it" are present sense impressions "not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness." Fed. R. Evid. 803(1). "[T]he burden of showing the elements of admissibility for a statement under the present sense impression exception, like the burden on evidentiary issues generally, is on the proponent of the evidence." Versata Software, Inc. v. Internet Brands, Inc., No. 2:08-cv-313, 2012 WL 2595275, at *9 (E.D. Tex. Jul. 5, 2012) (collecting cases). In this regard, the Fifth Circuit has held that a delay of fifteen minutes between the occurrence of an event and a statement is insufficient to meet the immediacy requirement of the exception "unless the declarant was still in a state of excitement resulting from the event." U.S. v. Cain, 587 F.2d 678, 681 (5th Cir. 1979).

Rule 803(2) provides that hearsay statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" are excited utterances "not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness." Fed. R. Evid. 803(2). "Unlike the present sense impression exception, the excited utterance exception is not determined solely based on the period of time that elapsed between a statement and the event it references." Maria S. for E.H.F. v. Doe, 267 F.Supp.3d 923, 938 (S.D. Tex. 2017) (citing United States v. Hefferon, 314 F.3d 211, 223 (5th Cir. 2002)). "The Rule 803(2) Advisory Committee Notes state that 'spontaneity is the key factor.'" United States v. Angleton, 269 F. Supp. 2d 878, 890 (S.D. Tex. 2003) (quoting Fed. R. Evid. 803(2) Advisory Committee's Note). Thus, an excited utterance must be spontaneous, excited, or impulsive, and not the product of reflection and deliberation. United States v. Lawrence, 699 F.2d 697, 704 (5th Cir. 1983); see also 2 Robert P. Mosteller, McCormick on Evidence § 272 (7th ed. 2016) ("A useful rule of thumb is that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.")

Here, the Court finds that McLaughlin's statements about Troy being restrained as he was loaded into an ambulance constitute an exception to the hearsay rule, qualifying as both present sense impressions and excited utterances. First, the statements on the tape were contemporaneous, "made while or immediately after the declarant perceived it." Second, the statements relate to a "startling ... condition made while the declarant was under the stress of excitement caused by the event or condition." As such, the jury will be permitted to hear audio of the video.

To the extent that Oliver relies on United States v. Thompson, 482 F.3d 781 (5th Cir. 2007), as authority to exclude audio of the video from the jury, that case is inapposite. Thompson does not stand for the proposition that a jury should be limited in hearing the audio of a video recording; rather, it held that the district court "committed plain error by allowing the video tapes to be entered into evidence and played with only a transcript and not the audio portion as well." 482 F.3d at 788 (emphasis added). Thus, Thompson is not authority that supports excluding the audio of the video from the jury—rather, the holding of the case stands for the opposite of the proposition it is cited for: that if the video is played, so too must its audio.

No party has cited pertinent authority on the propriety of playing videotapes—which will be submitted into evidence—during an opening statement. Learned treatises about video technology in the courtroom find it "important to distinguish between the use of deposition videotape and other types of video images during opening statements." 58 Am. Jur. Trials 481 (originally published in 1996). While "[f]ull motion video segments of a deposition are rarely allowed during opening statements [o]ther types of full-motion live and computer-generated video are becoming increasingly common during opening statements." Id.; see Hynix Semiconductor Inc. v. Rambus Inc., No. C-05-00334, 2008 WL...

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