Opinion
Civil Action No. 99-1687, Section "C" (2).
May 11, 2001.
MINUTE ENTRY
The Court has received motions in limine and objections regarding exhibits and testimony to be used at trial. As a preliminary matter, the Court observes that Federal Rule of Civil Procedure 16(e) provides that "After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice." The Comments offer additional guidance:
Once formulated, pretrial orders should not be changed lightly; but total inflexibility is undesirable. See, e.g., Clark v. Pennsylvania R.R. Co., 328 F.2d 591 (2d Cir. 1964). The exact words used to describe the standard for amending the pretrial order probably are less important than the meaning given them in practice. By not imposing any limitation on the ability to modify a pretrial order, the rule reflects the reality that in any process of continuous management, what is done at one conference may have to be altered at the next. In the case of the final pretrial order, however, a more stringent standard is called for and the words "to prevent manifest injustice," which appeared in the original rule, have been retained. They have the virtue of familiarity and adequately describe the restraint the trial judge should exercise.
Therefore, in reaching its decisions below, the Court has chosen to evaluate the merits of each evidentiary objection, rather than focus solely on whether mistakes or oversights have resulted in certain objections being "waived." The decision to permit amendments to the pre-trial order is committed to the discretion of the trial judge. See Wallin v. Fuller, 476 F.2d 1204, 1208-09 (5th Cir. 1973) ("Under the Rule 16 `manifest injustice' standard, the question whether to permit amendment of the pretrial order in the course of the trial is generally a matter within the discretion of the trial judge, and an appellate court will intervene only if the trial judge has acted arbitrarily.").
Therefore, IT IS ORDERED:
— Defendant's Motion in Limine to exclude the deposition transcript of Mr. Bartlett is hereby GRANTED. The testimony of Mr. Bartlett is hearsay, and Plaintiff has not demonstrated that Mr. Bartlett will not be available to testify at trial. To the contrary, Plaintiff has indicated his desire to call Mr. Bartlett as a witness in his case in chief. Defendant's Motion to Prevent Plaintiff from calling Mr. Bartlett and Mr. Vanderbrook as a witnesses is hereby DENIED. Defendant has received a copy of the expert reports prepared by these individuals, as they were retained by Defendant, and therefore it was unnecessary for Plaintiff to send Defendant a copy of these reports so as to comply technically with the requirements of the Federal Rules.
— Defendant's Motion to Exclude Evidence Regarding "Additional Theories" of Liability is hereby DENIED. Plaintiffs complaint adequately indicates that he is seeking to hold Defendant liable under any of the four theories of liability justified under the Louisiana Products Liability Act. Likewise, Plaintiff shall not be prevented from addressing questions of whether there was pre-existing damage to the cable. The Court also finds that Plaintiff has not made any "admissions" pertaining to the question of whether Plaintiff improperly leaned his body weight against the cable. Defendant's objections on these points go to the weight of the evidence, and should be addressed to the jury.
— Plaintiff's Motion in Limine to exclude and/or limit the portions of the video surveillance tape shown to the jury is DENIED. The Court has already ruled that the video tapes are relevant to this case on March 28, 2001, and finds no reason to alter its ruling on this question. At that time, the Court instructed the Defendant to edit the tapes to highlight the most significant portions, so as to avoid wasting time before the jury. Defendant has complied with the Court's directive, editing the first video down from approximately one hour to six minutes and the second video to approximately twenty-five minutes. The Court shall permit Defendant to show the excerpts it has selected from the video to the jury.
— Plaintiff's motion to exclude the testimony of the investigators who conducted the video surveillance is hereby DENIED. Although the authenticity of the videos are not disputed, Defendant may choose to call the investigators to testify as to other activities they witnessed the Plaintiff performing, which were not included on the segments of the video shown to the jury. Just as the tapes were relevant, this testimony is also relevant to the case at hand. Defendant's Motion to Amend the Pre-Trial Order to include Joe Schembre, the investigator who filmed the second video surveillance tape, as a witness is also hereby GRANTED.
— Plaintiff's motion to exclude his Social Security records and income tax records is PARTIALLY GRANTED. (See Exhs. 32 33) The Court agrees with the Defendant that the jury is entitled to an accurate picture of Plaintiffs recent work history and earnings so as to determine the proper amount of lost wages. However, Plaintiff does not lose all traces of privacy simply because he has brought a personal injury case in federal court. Therefore, IT IS ORDERED that Plaintiff's Social Security records prior to January 1993 shall not be admitted into evidence. However, Plaintiffs Social Security records from 1993 to 1995, and his income tax statements from 1993 to 1997 shall be admissible.
— Defendant's objection to the inclusion of the X-Ray of Plaintiff's broken leg (Exh. 39) is hereby OVERRULED. Evidence of Plaintiff's injuries is clearly relevant to the issues in this litigation.
— Defendant's objection with regard to the 1992 report of Mr. Holbrook is hereby DEFERRED. First, the Court notes that the location of report (i.e., its exhibit number) has not been identified by the parties and Plaintiff has not responded to Defendant's objection. Having reviewed the voluminous amount of paper filed to date, the Court has not been able to locate the "Holbrook" report. This causes the Court to wonder if the exhibit was withdrawn. However, the Court notes that should this report materialize — it shall not admitted into evidence, unless it can be properly authenticated, and a relevant exception to the hearsay rule established.
— With regard to the report of Mr. Vanderbrook (Exh. 31), the Court has already ruled that Mr. Vanderbrook is not qualified to render an opinion on issues of metallurgy. An amended report has not been offered to the Court to comply with the Court's ruling. Therefore, IT IS ORDERED that ¶ 4, the last sentence of ¶ 5, and the conclusion from Mr. Vanderbrook's report shall be REDACTED.