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Goode v. City of Southaven

United States District Court, N.D. Mississippi, Oxford Division

March 7, 2019

KELLI 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



         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 190990, at *1 (N.D. Cal. Jan. 21, 2008) (noting the “sparse case law on whether a court should permit parties to play portions of video depositions in their opening statements” while asserting that the court “is less sanguine regarding [such] practice” than a learned treatise recommending such practice as “‘very effective' advocacy”); Doe v. City of San Diego, No. 12CV689, 2014 WL 11997809, at *6 (S.D. Cal. July 25, 2014) (collecting cases). The “general rule … followed in the majority of federal and state jurisdictions” is that an attorney is “entitled to read from or display documents and other exhibits that you expect to be admitted into evidence.” Joel Simberg, Displaying Digital Media During Opening Statements: Tactics, Techniques, and Pitfalls, 60 DePaul L. Rev. 789, 790-91 (2011). As Kelli is entitled to display the video as an exhibit—assuming it is admitted into evidence—the Court concludes that her counsel will be permitted to play it during her opening statement. Accordingly, Oliver's second ground will be denied.

         iii. Third Ground

         Oliver moves to prohibit Kelli and Troy's “friends and family, from testifying as to what occurred at BMH-D prior to Troy Goode's death.” Doc. #543 at 3. In response, Kelli offers that she “has no intention of offering any such testimony. Plaintiff may offer testimony regarding what these individuals were told by employees [of BMH-D and the City]. Such testimony is admissible as statements by party opponents ….” Doc #561 at 1. Accordingly, Oliver's third ground will be granted as unopposed, with the caveat that Kelli may offer testimony regarding a statement by a party opponent offered against that party opponent under Federal Rule of Evidence 801(d)(2).[2]

         iv. Fourth Ground

         Oliver moves to prohibit Troy's “family and friends from testifying as to their personal loss” because they are not statutory wrongful death beneficiaries under Mississippi law. Doc. #543 at 4. In response, Kelli offers that she “has no intention of eliciting testimony regarding the emotional loss of individuals other than Plaintiff and her minor child R.G. To the extent that a witness has difficulty testifying … testimony regarding that difficulty is relevant to assisting the jury in evaluating the witness' credibility.” Doc #561 at 3-4. Accordingly, Oliver's fourth ground will be granted as unopposed.

         v. Fifth Ground

         Oliver moves to prohibit Nikki Goode, Troy's mother, from testifying that “Oliver lied to her about Troy's treatment, and that Troy received a ‘shot' in 2008 that reversed the effects of LSD” pursuant to Federal Rules of Evidence 401, 403, 701, and 702. Doc. #543 at 5. In response, Kelli represents that “counsel for the defendants elicited the testimony that they now ask to be excluded [and] Plaintiff does not intend to elicit from [Nikki] the testimony cited by Defendant.” Doc. #561 at 4. Accordingly, Oliver's fifth ground will be granted as unopposed.

         vi. Sixth Ground

         Janet Tharpe testified that she witnessed Troy's admission to the BMH-D emergency room on July 18, 2015. Oliver seeks to exclude portions of Tharpe's testimony in two regards.

         First, Oliver objects to Tharpe's testimony that although she could not see Troy, she heard someone in the room where he was placed moaning and saying “breathe.” Doc. #543-2 at 44-45. Tharpe testified that she believed Troy was the source of the sounds as he “was the only person that was loud in there” but that she “cannot say for sure that it was him. I would probably think it was him after seeing him come past me.” Id. Oliver—noting that Tharpe was unsure about how many people were in the room with Troy—moves to exclude any effort by Tharpe to attribute statements, which she purports were made by Troy, to Troy pursuant to Rule 403 as “sheer speculation.” Doc. #543 at 9. Moreover, Oliver argues “this testimony should be excluded under Rule 602 as … Tharpe admitted she has no personal knowledge it was in fact Mr. Goode who spoke the word ‘breathe.'” Id.

         Second, Oliver objects to Tharpe's testimony that she observed Troy in respiratory distress as he was being transported between rooms at BMH-D. Tharpe testified that Troy was “focused” on “trying to breathe, ” Doc. #543-2 at 13, 49, that Troy was in “distress, ” id. at 14, that Troy was having difficulty breathing, id. at 51, and that Troy's “cause of death … [had] something to do with him being able to breathe, ” id. at 54-55. Oliver argues that this evidence should be excluded under Rules 701 and 702 as “Tharpe is wholly unqualified to assess Mr. Goode's physical state, whether he was having difficulty breathing, whether he was in distress and certainly whether his inability to breathe caused his death.” Doc. #543 at 11. Moreover, Oliver argues that “this testimony should be excluded under Rule 403 as it is highly prejudicial … to have an unqualified lay witness offer testimony on the medical state of a patient in the emergency room” and that such testimony would “mislead [or] confuse the jury.” Id. Oliver thus argues that Tharpe's testimony should be limited “to her lay observations of Mr. Goode - the color of his skin and his position when she saw him in the hallway only - without offering medical testimony about his respiratory status or whether he was in distress.” Id. at 11-12.

         In response, Kelli argues that Tharpe's testimony is admissible because “[e]ach of the possible declarants would qualify under an exception to the rule against hearsay.” Doc. #561 at 5. First, Kelli argues that if Troy uttered the word “breathe” that statement qualifies as an exception to the hearsay rule as a present sense impression, Fed. R. Evid 803(1), excited utterance, Fed. R. Evid 803(2), or a statement made for medical diagnosis, Fed. R. Evid 803(4)[3]. Id. Second, Kelli argues that if the declarant was a Southaven police officer or a BMH-D nurse, stating “breathe” qualifies as an admission of a party opponent, Fed.R.Evid. 801(d)(2), which can be admitted against the declarant as non-hearsay. Id. Thus, Kelli contends that the concerns raised by Oliver are directed towards the weight, not the admissibility, of Tharpe's testimony, as the defendants are “free to cross examine Ms. Tharpe about her knowledge [and the] jury can determine … whether it was Troy, a police officer, or a nurse who was moaning and exclaiming ‘Breathe!' in the minutes before Troy went into cardiopulmonary arrest.” Id. at 6.

         As a threshold matter, a hearsay statement must be offered into evidence to prove the truth of the matter asserted in the statement. Fed.R.Evid. 801(c). Here, it is less than clear what the matter asserted would be—let alone how the statement would prove that that matter is true. Yet, even if the Court assumes that this statement contains an assertion and is being offered to prove the truth of that assertion, it would still be admissible. Hence, the motion will be denied to the extent that Tharpe may testify that she heard an unidentified individual state “breathe” in the room where Troy was being treated, because the statement would be admissible—for the reasons urged by Kelli—regardless of whether it was uttered by Troy, a Southaven police office, or a BMH-D nurse. The jury can weigh this evidence according to Tharpe's testimony and credibility on the stand. However, Oliver's motion will be granted to the extent that it seeks to preclude Tharpe from diagnosing Troy with a medical condition and to restrict her testimony to lay opinions.

         vii. Seventh Ground

         Oliver moves to exclude the argument or suggestion the he refused to treat Troy unless Troy “remained restrained in the same manner in which he was presented to the emergency department.” Doc. #543 at 12. Oliver argues that “the only evidence of a discussion between the police and any hospital staff about the restraints is found in two brief references in the testimony of … Todd Baggett, who claims an unidentified nurse told him the soft restraints used by the hospital would not hold” Troy. Doc. #543 at 12 (emphasis omitted); see Doc. #543-3 at 55.[4] Thus, Oliver contends that “it would be improper and prejudicial for plaintiff's counsel to suggest by questions or argument that there was a conversation between the Southaven police or paramedics and … Oliver that included any such ‘refusal.'” Id.

         The Southaven defendants, although not opposed to the relief sought by Oliver, responded “out of an abundance of caution” to ensure that the Court's ruling does “not affect the ability of … Baggett to testify at trial concerning his personal conversations with [BMH-D] nurses on the issue of restraints and positioning” of Troy. Doc. #563 at 2.

         In response, Kelli argues “that the proponent of the statement does not necessarily need to identify the declarant” for a statement to be offered against a party opponent under Rule 801(d)(2). In support of this contention, Kelli contends that the Fifth Circuit has “affirmed the admission of an out-of-court statement by an unidentified individual, ” where there were indications that the declarant—although unidentified—was an employee of the defendant because the declarant was wearing a hard hat bearing its name. Doc. #561 at 6 (citing Davis v. Mobil Oil Expl. & Prod., S.E., Inc., 864 F.2d 1171, 1174 (5th Cir. 1989)). Thus, Kelli argues that “the nurse uniform worn by ...

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