Opinion
CIVIL ACTION NO. 02-2994, SECTION "K"(2).
July 31, 2003.
MOTION IN LIMINE
Before this Court is a Motion in Limine brought by plaintiffs Carolyn and Thomas Smith, requesting that the Court exclude all impeachment exhibits, specifically Exhibits 1-14 in the Amended Pre-Trial Order, and the testimony of impeachment witnesses Tony Valore and Norman Miranda. The Court makes the following rulings:
A. Exhibits 1 and 2: The Surveillance Tapes and Testimony of Tony Valore and Norman Miranda
IT IS ORDERED that plaintiffs' Motion In Limine to exclude the surveillance tapes is DENIED. Plaintiffs' request to exclude testimony of Tony Valore and Norman Miranda is GRANTED, in part and DENIED, in part.
Plaintiffs request that the Court exclude the surveillance tapes of plaintiffs doing various activities on May 5, 10, 13, and 29, 2003 at the hardware store, outside their home, and in their neighborhood. The most significant portion of the videotape occurs on May 29 when Mr. and Mrs. Smith are shown constructing a fence in their yard. Plaintiffs argue that the tape should be excluded because it is impeachment evidence and should only be shown if plaintiffs deny performing these activities when examined before the jury at trial. Defendants counterargue that the tape is substantive evidence offered to establish the severity of plaintiffs pain, suffering, and physical limitations.
The Court finds that the tapes constitute both substantive and impeachment evidence and are therefore admissible and can be used to impeach or introduced as evidence. Substantive evidence is "that which is offered to establish the truth of a matter to be determined by the trier of fact." Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993); Menges v. Cliff's Drilling Co., No. 99-2159, 2000 WL 765083, *1 (E.D. La. 6/12/00). In Chiasson, the court noted that "the severity of [a plaintiff's] pain and the extent to which [a plaintiff] has lost enjoyment of normal activity are among the key issues a jury must decide in calculating [a plaintiffs] damages. Evidence which would tend to prove of disprove such losses must be considered `substantive.'" Chiasson, 988 F.2d at 517; see also Innovative Therapy Products Inc. v. Roe, 1998 WL 293995, at *2 (E.D. La. June 4, 1998) (finding taped statements appeared to be substantive); Alfortish v. Shoney's Inc., 1994 WL 449415, at *2 (E.D.La. Aug. 16, 1994) (finding videotapes to be substantive).
In the case at bar, the videotapes are relevant because they tend to establish what activities plaintiffs are capable of performing in spite of their alleged injuries. The tapes are substantive evidence and are admissible to establish the extent of plaintiffs' losses, as held in Chiasson. Further, defendants may call either Norman Miranda or Tony Valore (but not both) to authenticate the videotapes. Defendants, however, may only question the witnesses in order to lay a foundation for the tape. The testimony of Miranda or Valore regarding the events portrayed in the tape would be cumulative of that which is best presented by the videotape. Fed.R.Civ.P. 403. Also, the Court orders that no more than 10 minutes of the relevant portions of the videotape shall be shown to the jury.
The Chiasson court addressed the issue of impeachment evidence. The court held that "[i]mpeachment evidence . . . is that which is offered to `discredit a witness . . . to reduce the effectiveness of his testimony by bringing forth evidence which explains why the jury should not put faith in him or his testimony.'" Chiasson, 988 F.2d at 517. See also Richardson v. Rodrigue, 1996 WL 476603, at *5 (E.D.La. Aug. 22, 1996). Defendants may also impeach plaintiffs with the videotape if plaintiffs testify at trial that they did not perform the acts in question.
Finally, the Court finds that the probative value of the tapes outweighs any potential prejudice to plaintiffs. See Fed.R.Evid. 403.
B. Exhibits 3-14, Prior Pleadings
IT IS ORDERED that plaintiffs' request to exclude evidence of prior lawsuits and pleadings from admission into evidence is DENIED.
Plaintiffs request that the evidence of prior claims they made against lawyers in connection with an automobile accident be excluded pursuant to Rule 613 and 801(d)(2). Plaintiffs claim that defendants will attempt to impeach Mrs. Smith with the pleadings in her prior lawsuit and with statements she made in her deposition denying that she filed any prior claim. Plaintiffs contend that because Mrs. Smith will be able to provide an explanation to dispute any discrepancy, the documents should not be introduced into evidence.
The Court finds that pleadings filed by plaintiffs in other actions are admissible, substantive evidence as judicial admissions, or as nonhearsay admissions of a party opponent under Rule 801(d)(2). Sanford v. John-Mansville Sales Corp., 923 F.2d 1142, 1148 (5th Cir. 1991); Busse, et Al. v. Bayerische Motoren Werke, 1997 WL 106716, * 7 (E.D. La 3/11/97). Defendant does not need to give Mrs. Smith an opportunity to explain or deny the statements because they are being offered as admissions by a party opponent pursuant to 801(d)(2) which explicitly exempts admissions by a party opponent from the requirement. See Fed.R.Evid. 613(b).
Accordingly,
IT IS ORDERED that plaintiffs' motion in limine to exclude the surveillance videotape, Exhibits 1-2, is DENIED. A limited portion of the videotape is admissible, and defendants may call either Tony Valore or Norman Miranda to authenticate the tape.
IT IS FURTHER ORDERED that plaintiffs' request to exclude evidence of plaintiffs' prior pleadings, Exhibits 3-14 is also DENIED.