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Williams v. Hargrove

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

April 2, 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 the Motion in Limine [316][318][1],[2] filed by Plaintiffs. After reviewing the submissions of the parties, the record, and the applicable law, the Court finds that this motion 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.

         On March 13, 2018, the Court entered an Order [305] excluding spreadsheets purporting to contain information on the coroner’s files from 2012 to 2016 (the “Spreadsheets”). On March 15, 2018, during the pretrial conference, Plaintiffs represented to this Court that they were working on three new summary charts to make the information from the coroner’s files easier for the jury to digest. They represented that two of these charts had been furnished to Defendants and that an additional one was being compiled. They further stated that the number of coroner’s files included in these charts would be somewhere between 700 to 1000 files.

         Plaintiffs filed the current Motion in Limine [316][318] on March 20, 2018, and corrected it on March 21, 2018. In this motion, they put forward nine charts that they wish to have admitted into evidence and not three as previously discussed. Defendants responded to the motion on March 28, 2018. Trial in this case is set for April 16, 2018.

         II. DISCUSSION

         Federal Rule of Evidence 1006 provides for the admission of summaries when “(1) the evidence previously admitted is voluminous, and (2) review by the jury would be inconvenient.” United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001) (citations omitted). 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 to the other side for comparison so that the correctness of the summary may be tested, (3) the chart preparer is available for cross-examination,[3] and (4) the jury is properly instructed concerning use of the charts.

Id. Though a summary may include only evidence favorable to one party, if it does, the proponent must represent to the jury that it is summarizing all the evidence in the case. Id. Because of the “powerful impression which charts can make upon a jury, vesting the charts with an air of credibility independent of the evidence purported to be summarized,” the Fifth Circuit has “repeatedly cautioned that trial judges must carefully handle their preparation and use.” United States v. Hart, 295 F.3d 451, 455 (5th Cir. 2002) (internal quotations and citations omitted).

         “Summary evidence must have an adequate foundation in evidence that is already admitted, and should be accompanied by a cautionary jury instruction.” Bishop, at 547. “A necessary precondition to the admission of summary charts is that they accurately reflect the underlying records or testimony, particularly when they are based, in part, on the [proponent’s] factual assumptions.” United States v. Taylor, 210 F.3d 311, 315-16 (5th Cir. 2000). The Fifth Circuit has “made it quite clear that the proper use of FRE 1006 requires that there be supporting evidence that has been presented previously to the jury to establish any assumption reflected in the summary.” Hart, 295 F.3d at 458 (internal quotations, citations, and emphasis omitted). A summary chart may not be used to assume those facts that are required to be proven by their proponent. Id. at 459.

         A. Indigent Cases Chart & Table [318-1][318-2]

         This chart and table purport to list all of the indigent cases from the coroner files. However, Defendants have demonstrated that it is missing data. Overall, Defendants contend that there were 59 indigent cases from 2012 to 2016, all of which were disclosed to Plaintiffs. Thirteen of these cases were not “coroner files,” so the fact that they were not included is not fatal to the admission of this chart and table. The four coroner files that should have been included is more worrisome. While not necessarily significant because of its small number, any missing data is troubling to the Court because Plaintiffs have been given a second opportunity to compile summaries that are accurate and unbiased. However, the Court will allow for the admission of this chart and table, provided that Plaintiffs add the missing coroner files to them and provided they clarify upon presenting them to the jury that they represent only the indigent cases which are coroner files and not all of the indigent cases. If Defendants wish to the present a summary chart of the non-coroner cases or one with both the coroner and non-coroner cases, they will be allowed to do so.

         Defendants also contend that this chart and table omits family preference, which would show that Hargrove did not make the decision. While Defendants are free to present evidence that Hargrove did not make the decision in these cases, this argument does ...


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