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Williams v. Hargrove

United States District Court, S.D. Mississippi, Southern Division

March 13, 2018

THEODORE WILLIAMS et al. PLAINTIFFS
v.
GARY HARGROVE et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on various motions in limine filed by the parties. After considering the submissions of the parties, the record, and the applicable law, the Court finds the following:

1. the Motion in Limine No. 1 [203] is not well taken and should be denied;
2. the Motion in Limine No. 2 [205] is not well taken and should be denied;
3. the Motion in Limine No. 3 [207] is not well taken and should be denied;
4. the Motion in Limine No. 4 [209] is not well taken and should be denied;
5. the Motion in Limine No. 5 [211] is not well taken and should be denied;
6. the Motion in Limine No. 6 [213] is well taken and should be granted;
7. the Motion in Limine No. 7 [215] is not well taken and should be denied;
8. the Motion in Limine No. 8 [217] is not well taken and should be denied;
9. the Motion in Limine No. 9 [219][220][1] should be granted in part and denied in part;
10. the Motion in Limine No. 10 [222] is not well taken and should be denied;
11. the Motion in Limine No. 11 [224] is well taken and should be granted;
12. the Motion in Limine No. 12 [226] is well taken and should be granted;
13. the Motion in Limine No. 13 [228] is not well taken and should be denied;
14. the Motion in Limine No. 14 [230] is well taken and should be granted;
15. the Motion in Limine No. 15 [232] has been rendered moot and should be denied;
16. the Motion in Limine No. 16 [234] is not well taken and should be denied; and
17. the Motion in Limine [244] is should be granted in part and denied in part.

         I. BACKGROUND

         Plaintiffs Theodore Williams, Lockett Williams Mortuary, Inc., Ricky August, Lasha August, Jonathan August, Richmond-August Funeral Home, Inc., Eddie Hartwell, Hartwell & Family Funeral Home, LLC, Anthony Marshall, Gina Marshall, Marshall Funeral Home, Pamela Dickey, Dickey Brothers Memorial Funeral Home, LLC, Helen Evans, and J.T. Hall Funeral Home, Inc. (collectively “Plaintiffs”) are a group of funeral homes and their owners, all of whom are black and located in Harrison County. On July 18, 2016, Plaintiffs brought this action against Defendants Gary Hargrove (“Hargrove”), Harrison County Board of Supervisors (the “Board”), and Harrison County, Mississippi (the “County”) (collectively “Defendants”), alleging that Defendants discriminated against them by favoring the services of white-owned funeral homes over them. They bring federal claims under Title VI and 42 U.S.C. §§ 1981 and 1983, as well as multiple state law claims.

         II. DISCUSSION

         A. Motion in Limine No. 1 [203]

         Plaintiffs argue that Defendants should be precluded from offering any race-neutral reason for Hargrove's actions at trial that were not disclosed in discovery. Because this request is broad, the Court is hesitant to grant it. Of course, Defendants will be precluded from offering evidence that should have been disclosed to Plaintiffs. However, a more specific ruling such as the one requested by Plaintiffs is premature at this stage, as no specific undisclosed race-neutral reason has been identified. The Court will therefore deny this motion. This issue may be raised again in more specificity at the appropriate time at trial.

         B. Motion in Limine No. 2 [205]

         In their Motion in Limine No. 2 [205], Plaintiffs request that the 5, 821 Coroner Files at issue in this case be admitted electronically into the record. This request poses a logistical problem for the Court, as all exhibits admitted into evidence go with the jury into the jury room during deliberations, which requires physical copies be available. While parties are welcome and encouraged to utilize the technology in the courtroom to present their exhibits electronically at trial, physical copies are needed for the jury to utilize during deliberations. Therefore, this motion will be denied.

         C. Motion in Limine No. 3 [207]

         Plaintiffs argue that the spreadsheets analyzing the Coroner's Files, prepared by their attorneys' law firm, should be admissible as summary charts under F.R.E. 1006. Plaintiffs also represent to the Court that they “have reviewed every single Fifth Circuit decision citing Rule 1006, and not a single decision mandates as a precondition to admission a chart preparer be produced to testify.” (Memo. in Support [208] at pp. 12-13). The Court, however, found five Fifth Circuit decisions, four published and one unpublished, mandating that the chart preparer be available for cross-examination. See United States v. Chivers, 488 F.App'x 782 (5th Cir. 2012); United States v. Bishop, 264 F.3d 535 (5th Cir. 2001); United States v. Goodwin, 470 F.2d 893 (5th Cir. 1972); Gordon v. United States, 438 F.2d 858 (5th Cir. 1971); McDaniel v. United States, 343 F.2d 785 (5th Cir. 1965).

Summary charts in particular are admissible when (1) they are based on competent evidence already before the jury, (2) the primary evidence used to construct the charts is available for the other side for comparison so that the correctness of the summary may be tested, (3) the chart preparer is available for cross-examination, and (4) the jury is properly instructed concerning use of the charts.

Bishop, 264 F.3d at 547 (citations omitted)(emphasis added); see also Chivers, 488 F.App'x at 785, Goodwin, 470 F.2d at 899, McDaniel, 343 F.2d at 789. The Fifth Circuit has held that “the better practice [in admitting summary charts into evidence] is to require that the primary evidence be available to the opposing party and to afford a reasonable opportunity for comparison in order that the correctness of the summary may be tested on cross-examination.” Gordon, 438 F.2d at 876-77 (citing Cooper v. United States, 91 F.2d 195, 198 (5th Cir. 1937)) (emphasis added).

         Plaintiffs do not put forward any chart preparer that would be available for cross-examination in their motion. In their response to Defendants' Motion in Limine [244], however, Plaintiffs propose putting Katie Roche, one of the Plaintiffs' attorneys of record, on the stand to testify as the one who oversaw the preparation of the chart. Mississippi Rule of Professional Conduct 3.7 prohibits lawyers from testifying at trial as a witness in a case where they are also acting as an advocate. Plaintiffs attempt to argue that Ms. Roche will not be “an advocate at trial” because she is not lead counsel and will not be “trying the case, ” but the Court does not find this to be convincing where she is still an attorney of record in this case and has been involved in the action since her pro hac vice admission in July 2017. This Court cannot allow one of Plaintiffs' attorneys to testify as the preparer of these spreadsheets, and must exclude them as inadmissible without an available chart preparer. See United States v. Solvay, Civil Action H-06-2662, 2016 WL 1258401, at *13 (S.D. Tex. Mar. 31, 2016) (“[E]ven if the underlying data were admissible, the summary charts are not admissible because they were apparently prepared by Relators' lead counsel, who cannot serve as the proponent of the charts at trial.”).

         While the Court understands that summary chart would make the evidence easier to present to the jury, the Court is bound by Fifth Circuit precedent and its own fair administration of justice to ensure that the rules of evidence are properly applied. The underlying evidence is still available to Plaintiffs to make their case, and the Court sees no compelling reason to deviate from the Fifth Circuit precedents involving F.R.E. 1006. This motion will therefore be denied.

         D. Motion in Limine No. 4 [209]

         Plaintiffs argue that statistical evidence as to the deaths and funeral home selections in other counties should be excluded as they are not relevant under F.R.E. 401. In making their arguments, Plaintiffs rely on the elements of their claim that they must prove and make no mention of Defendants' defenses, one of which is that the funeral home selection is due to the choice made by the decedents or their family and friends, made with a preference for their own race. Certainly evidence that the same racial divide occurs in most counties in Mississippi tends to make the idea that it is based on self-selection rather than discrimination by this particular ...


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