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Hemingway v. Russo

United States District Court, D. Utah

December 4, 2018

TRUDY HEMINGWAY, et al., Plaintiffs,
E. ROBERT RUSSO, et al., Defendants.


          Jill N. Parrish United States District Court Judge.

         Before the court are four motions in limine, (ECF Nos. 87, 88, 89, and 90), filed by defendants Christopher McHugh and Daniel Bartlett on November 8, 2018. Plaintiffs responded to three of those motions on November 15, 2018. (ECF Nos. 101, 102, and 104). The court heard oral argument on the motions at the final pretrial conference on November 30, 2018.

         I. ANALYSIS

         The purpose of a motion in limine is to resolve disputes about the admissibility of evidence before trial. But this purpose cannot be fulfilled when a motion in limine is insufficient to frame the specific evidence that its movant seeks to exclude. Abstract discussions regarding evidentiary principles, without any apparent connection to potential evidence in the case, are singularly unhelpful. Additionally, a motion in limine is not a procedure by which parties can secure judicial reinforcement of the ever-applicable Federal Rules of Evidence. It is also not an opportunity for counsel to conceive of every possible evidentiary contingency at trial-no matter how outlandish-and obtain prophylactic rulings to prevent them.

         To avoid motions in limine that display these problems, the court's trial order requires that, “[b]efore filing . . . any motion in limine, the parties must meet and confer to attempt to resolve the dispute.” (ECF No. 75). The defendants' motions in limine each represent that defendants “met and conferred regarding this Motion with Plaintiffs' counsel via email[, ]” but, as discussed below, these motions contain defects that seem to indicate that there was no real attempt to resolve these evidentiary disputes before submitting them for judicial resolution.

         1. Defendants' Motion to Exclude the Court's Memorandum Decisions and Orders

          The court is simply mystified about why this particular issue requires judicial intervention. At the very broadest level, it is baffling that either party might consider the court's resolution of the parties' dispositive motions in this case to amount to evidence. If so, how do they expect that it might be introduced? Can the court anticipate appearing on the parties' witness list for the purpose of establishing a foundation for its rulings? Or did the parties expect that they might simply reproduce excerpts from those orders in their opening statements, hoping to sway the jury with a judicial imprimatur on their version of events?

         There would appear to be two possible scenarios that led to this highly unnecessary motion: (1) concerned with unfavorable language resulting from the procedural posture of their motion for summary judgment, the defendants concluded that it would be wise to obtain a prophylactic ruling that the order is inadmissible; (2) the plaintiffs gave some indication that they did, in fact, intend to use this court's summary judgment decision as evidence, and the defendants' motion merely responds. The former, as explained above, would represent an improper use of the motion in limine procedure. If it were the latter, the defendants' motion utterly fails to explain why they have reason to believe that the plaintiffs intend to use the court's prior orders as evidence.

         As a result, the court has no concrete dispute to resolve. And in any event, plaintiffs did not respond to this motion in limine, whether because they had no intent to use the court's orders as evidence in the first instance, or because they have since wisely abandoned that effort. The court declines to issue a ruling on a question of law with an answer that seems so obvious as to preclude its necessity. Defendants' first motion in limine is therefore denied.

         2. Defendants' Motion to Exclude Plaintiff Daniel McGuire's Medical Records

         Defendants' next motion in limine seeks the exclusion of plaintiffs' exhibit 21, which consists of pictures of two documents given to Daniel McGuire when he sought medical treatment for hearing loss the same day of the search.[1] Mr. McGuire alleges that the SWAT team's use of an explosive charge to breach the basement resulted in hearing loss.

         Defendants' seek the exclusion of “[a]ny reference to, testimony on, or argument about Plaintiffs' Proposed Trial Exhibit 21 . . . because Plaintiffs have not designated an expert witness to interpret these medical records.”[2]

         Under Rule 701, a lay witness may not offer opinion testimony “based on scientific, technical, or other specialized knowledge.” Fed.R.Evid. 701. Plaintiffs appear to concede that an expert would be required to discuss the contents of the medical records, but represent that they intend to use exhibit 21 only to prove that Mr. McGuire sought medical treatment for hearing loss the day of the search.

         The court finds that this is a permissible purpose. Mr. McGuire may introduce exhibit 21 for the limited purpose of proving that he sought medical treatment for hearing loss immediately after the search. Defendants may request a limiting instruction to this effect. Mr. McGuire may not, however, testify as to his diagnosis (if any) or attempt to explain the highly complex data reproduced in those documents. Additionally, as discussed at the final pretrial conference, plaintiffs' exhibit 21 must be redacted so as ...

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