Sutton et al v. Washington Metropolitan Area Transit Authority

MOTION in Limine to Preclude Plaintiff from Playing or Introducing the 911 Emergency Communication Tape

D.D.C.April 21, 2008

The conversation between Ms. Ramseur and the 911 operator is1 approximately 7 minutes, 23 seconds long. The remaining conversations consist of calls to 911 from different persons reporting the accident and conversations between the 911 dispatcher and emergency medical personnel. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ GLADYS CLAUDETTE SUTTON : : Plaintiff, : : v. : Case No. 07-1197 (JDB) : WASHINGTON METROPOLITAN : AREA TRANSIT AUTHORITY : : Defendant. : ____________________________________: DEFENDANT WMATA’S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM PLAYING OR INTRODUCING THE 911 EMERGENCY COMMUNICATION TAPE Pursuant to LCvR 7, Fed. R. Civ. P. 6(b), Defendant WMATA moves the Court to preclude Plaintiff from playing or introducing a transcript of the February 17, 2007, 911 emergency communication, recording the hysterical and highly emotional conversation between the 911 emergency operator and decedent’s friend and witness to the tragic accident, Quintenette Ramseur. A complete copy of the tape CD, which is approximately 10 minutes long, is being provided with this motion to chambers for in camera review. See Def.’s exhibit 1.1 Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 1 of 10 2 MEMORANDUM OF POINTS AND AUTHORITIESD FACTS On February 17, 2007, at approximately 11:09 p.m., decedent, 23- year old Angel C. Walters, was struck and killed by a WMATA bus. Immediately after the accident, Ms. Ramseur used her cell phone to call the 911 emergency operator and request emergency medical assistance. Ms. Ramsuer was hysterical and in a highly emotional state. The 911 communication tape vividly displays Ms. Ramsuer’s highly emotional reactions to a recent catastrophic accident. It also records the conversations between her and the 911operator regarding Ms. Ramseur’s lay observations of decedent’s injuries, indicia of possible life in response to the operator’s questions, and the operator’s instructions to her regarding the performance of Cardio Pulmonary Resuscitation (CPR) until the arrival of ambulance personnel. Under the District of Columbia Survival Act, D.C. Code §12-101 (1981), Plaintiff may recover damages for decedent’s “conscious pain and suffering.” WMATA’s expert, forensic pathologist, John E. Adams, M.D., has considered the tape’s contents in reaching his opinions on the issue of decedent’s conscious pain and suffering. Plaintiff has designated Carolyn H. Revercomb, M.D., from the District of Columbia Office of the Chief Medical Examiner as her expert on the issue of conscious pain and suffering. Plaintiff’s expert opines decedent’s conscious pain and suffering lasted approximately 3 minutes. Defendant’s expert opines decedent suffered no more than 2-3 seconds of conscious pain and suffering. Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 2 of 10 Fed. R. Evid. 701 permits opinion evidence by lay witnesses in limited2 circumstances. For example, a lay witness may testify regarding such matters as appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, and distance. See Fed. R. Evid. 701, 2000 Amendment Committee Notes. It does not allow a lay witness like Ms. Ramseur to express an opinion on whether or not decedent suffered any conscious pain and suffering or other opinions which require specialized, technical, or scientific knowledge. Those type opinions are governed by the expert witness standards of Fed. R. Evidence 702. Id. and Lightfoot v. Rosskopf, 377 F.Supp.2d 31, 33 (D.D.C. 2005). 3 ARGUMENT Plaintiff contends that the 911 communications tape is admissible as a “present sense impression” and/or “excited utterance” under Fed. R. Evid. 803(1) and (2). She also asserts the tape is admissible under Fed. R. Evid. 702, “Testimony by Experts” because WMATA’s expert, John E. Adams, M.D. considered the tape in reaching his expert opinions. She further contends the tape is admissible as a prior consistent statement under Fed. R. Evid. 801(d)(1)(B).2 Assuming arguendo that the conversations between Ms. Ramseur and the 911 operator constitute a “present sense impression” and/or “excited utterance” exception to the hearsay rule, and conceding that Defendant’s expert has reviewed the tape in considering his opinions, the tape should be excluded as unfairly prejudicial and unduly inflammatory with a likelihood to provoke the jury to consider imposition of punitive damages. Fed. Rule of Evid. 403, “Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time,” states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 3 of 10 4 the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. As the Advisory Committee Notes state: The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission. Exclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time, all find ample support in the authorities. ‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. In United States v. Johnson, 2006 U.S. Dist. LEXIS 19111, 6-7 (D. La. 2006), the district court denied admission of that portion of a 911 tape recording the conversation between a witness and medical personnel. The district court observed: The second portion of J.O.'s statement begins when she is connected to the emergency medical personnel. In contrast to the first part of her statement, this particular conversation lacks any intelligible descriptive elements. Rather, the entirety of this portion of J.O.'s statement consists of the medical personnel trying to calm J.O., who is crying and hyperventilating. J.O. continues to be audibly terrified but says nothing that adds support to any element of the government's case. On the other side of the equation, this part of the tape is prejudicial. J.O. is expressing raw emotion that has an undeniable emotional impact. Its only potential influence on the jury is in an emotional capacity. Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 4 of 10 Two other witnesses, Garnisha Valentine and Latitia Kirkland, were close3 friends of the decedent and witnessed part of the accident. Like Ms. Ramseur, they will be called by Plaintiff to testify about the accident and their lay observations regarding decedent’s post-collision physical condition. See Nov.16, 2007, Deposition of Garnisha Valentine, at 147-151, Defendant’s exhibit 2, and November 14, 2007 Deposition of Latitia Kirkland, at 83-88, Defendant’s exhibit 3. 5 The danger of unfair prejudice of this portion of the tape substantially outweighs its negligible probative value and it is therefore excluded. Id. Plaintiff will call Ms. Ramseur at trial. She likely will testify under oath to her personal observations regarding the accident, decedent’s post-accident physical condition and injuries, what she believes were indicia of life, and the emergency measures she took such as CPR under the direction of the 911 operator. Without3 playing or introducing the tape, Plaintiff will be able to present the same evidence she would otherwise by admitting and playing it for the jury, without causing “needless presentation of cumulative evidence,” the “danger of unfair prejudice,”“confusion of the issues,” or “misleading the jury” which will inescapably result from the jury listening and reacting to the highly emotional unnecessarily inflammatory hysterical responses of Ms. Ramseur. For that reason it should be excluded under Fed. R. Evid. 403. To the extent Plaintiff is attempting to utilize the tape to admit the opinions of the lay witnesses that the decedent was exhibiting signs of conscious pain and suffering, such testimony is inadmissible under Fed. R. of Evid. 701 because such opinions are based upon scientific, Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 5 of 10 6 technical, or other specialized knowledge and governed by Fed. R. Evid. 702 “Testimony of Experts.” The advisory committee notes to Rule 403 state that in reaching a decision whether to exclude on grounds of unfair prejudice “the availability of other means of proof may also be an appropriate factor.“ See: Old Chief v. United States, 519 U.S. 172, 184 (1997); (“‘The probative worth of any particular bit of evidence is obviously affected by the scarcity or abundance of other evidence on the same point.’” Id. at 185; Carter v. District of Columbia, 795 116, 126 (D.C. Cir. 1986 (“there were certainly other ways the evidence could have been admitted so that the relevant aspects were retained and the prejudicial aspects minimized”); Federal Rules of Evidence Manual, vol. 1, Rules 101-404, Saltzburg, Martin, and Capra, Lexis/Nexis (2006), §403.02 [5], p.403-11-12 (“A Court should be more willing to exclude evidence when there are less prejudicial alternative means to prove the fact in issue.” Additionally, Plaintiff should be precluded from playing the 911 tape under Fed. R. Evid. 801(d)(1)(B), which states: Statements which are not hearsay. A statement is not hearsay if - (1) Prior statement by witness. The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence, or motive. [emphasis added]. Ms. Ramsuer will testify under oath at trial consistent with her Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 6 of 10 7 prior sworn deposition testimony, and it will be unnecessary for Defendant to impeach her by a prior inconsistent statement. However, even if that unlikely scenario occurred, there would be no need to play the inflammatory tape as the content could be offered without the inflammatory emotion. Plaintiff could not simply attempt to use her prior consistent 911 tape statements to rehabilitate or bolster her in-court testimony. Fed. R. Evid 801(d)(1)(B) is limited in its application and specifically requires the party seeking the admission of a prior consistent statement to demonstrate it is being offered “to rebut an express or implied charge against the declarant of recent fabrication or improper influence, or motive.” The statement is only accorded this “non-hearsay” status, if the Plaintiff meets this burden. See Tome v.United States, 513 U.S.150, (1995). Plaintiff probably would be unable to do so. WMATA submits that the contents of the tape is unreasonably prejudicial and inflammatory, and should be excluded. However, if the Court considers admitting any part of the tape it should order that the tape be transcribed by a certified court reporter and allow only an edited version without playing the tape itself. This would eliminate or limit some of the emotion and inflammatory elements of the recording which will inevitably result from the jury audibly hearing the emotionally charged contents of the tape. Respectfully submitted, ___________/s/__________________ Fredric H. Schuster, #385326 Associate General Counsel Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 7 of 10 8 _______/s/__________________ David J. Shaffer, #413484 Assistant General Counsel 202-962-2820 600 Fifth St., N.W. Washington, D.C. 20001 Attorneys for Defendant WMATA CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served electronically upon counsel for Plaintiff this 21st day of April, 2008. /s/ Fredric H. Schuster Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 8 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ GLADYS CLAUDETTE SUTTON : : Plaintiff, : : v. : Case No. 07-01197 (JDB) : WASHINGTON METROPOLITAN : AREA TRANSIT AUTHORITY : : Defendant. : ____________________________________: ORDER Upon Defendant’s WMATA’s Motion in Limine to Exclude the 911 communications tape, Plaintiff’s opposition, and Defendant’s reply memoranda, and for good cause shown, it is this _____ day of ___________, 2008, ordered that the motion is Granted and Plaintiff shall be precluded from playing and introducing the 911 communications tape at trial. _________________________________ John D. Bates, United States District Court, D.C. cc: Counsel of record Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 9 of 10 2 Case 1:07-cv-01197-JDB Document 18 Filed 04/21/2008 Page 10 of 10 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 1 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 2 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 3 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 4 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 5 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 6 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 7 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 8 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 9 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 10 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 11 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 12 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 13 of 14 Case 1:07-cv-01197-JDB Document 18-2 Filed 04/21/2008 Page 14 of 14