United States District Court, Eastern District of New York
March 31, 2003
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, PLAINTIFF
AMERICAN ARMS, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Jay Waldman, United States District Judge
DEFENDANTS' MOTION IN LIMINE TO PRECLUDE THE NEW CHART OF
PLAINTIFF'S EXPERT WITNESS
Defendants respectfully submit this Memorandum of Law in Support of their Motion in Limine to preclude the plaintiff from introducing a new chart allegedly prepared by plaintiff's expert witness, Bryan Dunigan, ("Dunigan chart") on the basis that it was not included on plaintiff's final exhibit list, constitutes inadmissible hearsay, is irrelevant, lacks foundation, has not been authenticated and is unduly prejudicial.
STATEMENT OF FACTS
At approximately 12:30 p.m. on Sunday, March 30, plaintiff notified defendants that it may call its expert witness, Bryan Dunigan, to testify on Monday, March 31. Later in the afternoon of March 30, plaintiff faxed the Dunigan chart, a copy of which is enclosed, to the defendants without a cover letter or any explanation of what it was. At approximately 5:00 p.m. on Sunday, March 30 plaintiff notified defendants that the Dunigan chart is a list that Mr. Dunigan "was able to locate which documetns [sic] what guns were sold and to whom by an illegal gun dealer he arrested."
I. THE SUBJECT CHART IS HEARSAY AND SHOULD BE EXCLUDED FROM TRIAL
Federal Rule of Evidence 801 (definitions), 802 (hearsay rule) and 805 (hearsay in hearsay) address the hearsay concerns presented by the Dunigan chart. Rule 802 provides that hearsay is not admissible. In Rule 801(c) hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
The Dunigan chart constitutes an out of court statement offered to prove the truth of the matter asserted. This chart contains multiple levels of hearsay. Defendants submit that the Dunigan chart should be excluded from the trial of this matter on the basis that it constitutes inadmissible hearsay.
II. EVEN IF THIS CHART DID NOT CONSTITUTE INADMISSIBLE HEARSAY, ITS
INTRODUCTION WOULD BE HIGHLY PREJUDICIAL TO THE DEFENDANTS
Even if this Court were to hold that the Dunigan chart was not inadmissible hearsay, its probative value is outweighed by its prejudice to the defendants. Federal Rule of Evidence 403 states that:
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 the jury, or by considerations of undue
delay, waste of time, or needless presentation of
In applying Rule 403, the test is whether the prejudicial effect outweighs the probative value of the evidence. In its March 26 Order, this Court ordered that
[a]ll exhibits, including demonstrative exhibits and
any material that a party intends to . . . offer
during the examination of any witness . . . shall be
exchanged 48 hours (including weekend days) in advance
of its use. New designations thereafter shall be kept
to a minimum and made only for good cause shown.
March 26, 2003 Order at 6.
Plaintiff failed to provide the defendants with the required forty-eight hours notice and did not offer an explanation of good cause for failing to do so. This has caused prejudice to the defendants because they have not been provided with adequate time to prepare to address the Dunigan chart, which was not exchanged during discovery or listed on the plaintiff's final trial exhibit list. Furthermore, to prevent such a situation from occurring, Mr. Dunigan was specifically questioned during his January 30 deposition as to whether he intended to rely on any documents that were not included in his file. Mr. Dunigan was asked the following questions and gave the following answers that are relevant to the prejudice that the defendants will suffer if this untimely disclosed chart were to be admitted:
Q: Now, in terms of the documents that you rely on,
they're all on the table here and we've gone
through them, right?
Q: No others?
Q: Because I'd never know if you were lying and this
is my one chance to depose you.
Dunigan Dep. at 189. Finally, although Mr. Dunigan was deposed on January 30 and trial of this case began on March 24, plaintiff did not disclose the existence of this new chart to defendants until the afternoon of Sunday, March 30, the day before plaintiff states that it intends to call Mr. Dunigan to testify.
Based on the foregoing, defendants respectfully request that this Court grant this motion for an Order in Limine prohibiting the plaintiff, plaintiff's counsel, witnesses or any of plaintiff's experts from introducing, commenting upon, referring to, questioning about or attempting to convey to the jury in any manner, directly or indirectly, any of the matters set forth at length above. Absent such a ruling, unauthenticated, irrelevant, hearsay evidence that lacks a foundation could be introduced and there is a grave threat of unfair prejudice to defendants.
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