Galloway v. Chesapeake Union Exempted Village Sch. Bd. of Educ., 2014 U.S. Dist. LEXIS 151678 (S.D. Ohio Oct. 27, 2014):

This civil action is before the court on Defendants' omnibus motion in limine to exclude evidence....

I.  ANALYSIS

Because a ruling on a motion in limine is "subject to change as the case unfolds," this Court's ruling on Defendants' motion in limine constitutes a preliminary determination in preparation for trial. See Luce v. United States, 469 U.S. 38, 41-42 (1984); United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). Courts have the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds. Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004).

A. Beth Galloway Testimony and Records

Beth Galloway ("Galloway") intends to offer testimony on incidents about which Plaintiff told her, and about which she then either wrote to or had conversations with school officials. Defendants argue that Galloway's expected testimony and e-mail messages will contain and/or constitute inadmissible hearsay and that Galloway should be prohibited offering testimony on incidents about which she has no personal knowledge. Defendants note that in her deposition, Galloway gave testimony about incidents that occurred at Plaintiff's school even though Galloway [*2]  was not present when these alleged incidents occurred and did not witness any of these alleged incidents first-hand.

Plaintiff claims that Galloway's testimony is admissible pursuant to the established hearsay exceptions for present sense impressions, excited utterances, and then-existing mental, emotional, or physical conditions. Fed. R. Evid. 803(1)-(3). Plaintiff also claims that Galloway could authenticate and testify about the e-mails she sent to school officials pursuant to the hearsay exception for records of regularly conducted activity. Fed. R. Evid. 803(6).

"A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602. But see Advisory Committee Notes to 1972 Proposed Rules ("This rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. Rules 801 and 805 would be applicable. This rule would, however, prevent him from testifying to the subject matter of the hearsay statement, as he has no personal knowledge of it.")

Hearsay is a statement that: "(1) the declarant [*3]  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. Hearsay is inadmissible unless an exception found in a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court applies. See Fed. R. Evid. 802.

As an initial matter, Galloway must have personal knowledge of the matters about which she will testify. Fed. R. Evid. 602. She may not testify about what did or did not happen during incidents for which she was not present, but she may relay statements that others made to her about those events, so long as those statements are either: (1) not hearsay or (2) admissible pursuant to one of the exceptions to the rule against hearsay.

Plaintiff has not convinced the Court that the hearsay exceptions he identifies will apply to the statements at issue. The exception for present sense impressions applies to "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." Fed. R. Evid. 803(1). "This exception permits the introduction into evidence of a statement that is describing or explaining an event made while the declarant was presently perceiving [*4]  the event or immediately thereafter, thus, providing a necessary requirement of contemporaneousness." Miller v. Stovall, 742 F.3d. 642, 650 (6th Cir. 2014). Plaintiff has not shown that the statements he made to Galloway were made as he was presently perceiving an event (or immediately thereafter) or that the statements that Galloway made to school officials were made as she was presently perceiving an event (or immediately thereafter).²

2 The Court notes that to the extent that Galloway's statements to school officials incorporate statements by Plaintiff, and both statements are hearsay, each part of the combined statement must conform to a hearsay exception to be admissible. See Fed. R. Evid. 805. The Court also notes that these exceptions relate to the declarant's perceptions (who may or may not be the witness who testifies as to the statements).

An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Fed. R. Evid. 803(2). A hearsay statement is admissible under the excited utterance exception if (1) there [is] an event startling enough to cause nervous excitement; (2) the statement [is] made before there is an opportunity to contrive or misrepresent; and (3) the statement [is] made while the person [is] under the stress of the excitement caused by the event. Courts consider these elements on a case-by-case basis. All three inquiries bear on the ultimate question: Whether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event. Maggard v. Ford Motor Co., 320 F. App'x 367, 372 (6th Cir. 2009) (internal citations and quotation marks omitted). Plaintiff has not [*5]  shown that the statements he made to Galloway were his spontaneous reaction to a startling event or that the statements Galloway made to school officials were her spontaneous reaction to a startling event.

The Federal Rules of Evidence also carve out a hearsay exception for: "[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will." Fed. R. Evid. 803(3) (emphasis added). For a hearsay statement to be admissible pursuant to Rule 803(3), "the declarant must not have had an opportunity to reflect and possibly fabricate [*6]  or misrepresent his thoughts." United States v. LeMaster, 54 F.3d 1224, 1231 (6th Cir. 1995). Plaintiff has not shown that the statements he made to Galloway were reflective of his then-existing state (and not merely statements of memory or belief) or that the statements Galloway made to school administrators were reflective of her then-existing state (and not merely statements of memory or belief).

While Plaintiff has not proven that the above-cited hearsay exceptions apply to the statements he seeks to admit, Defendants have not proven that such statements are clearly inadmissible (i.e., that no exception could apply). Because the admissibility of Galloway's testimony depends on the context in which it is presented and the nature of the statements made, the Court declines to exclude her testimony and/or e-mail messages at this time. However, for the reasons stated here, if (1) the statements described are offered for their truth (and not for some other purpose) and( 2) Plaintiff cannot convince the Court that an exception applies, then these statements will not be admissible.³

3 Plaintiff also argues that Galloway could authenticate and testify about the e-mails she sent to school officials pursuant to Rule 803(6). Records of regularly conducted activity [*7]  are properly admitted under the Rule 803(6) exception to the hearsay rule if they satisfy four requirements: (1) they must have been made in the course of regularly conducted business activities; (2) they must have been kept in the regular course of business; (3) the regular practice of that business must have been to have made the memorandum; and (4) the memorandum must have been made by a person with knowledge of the transaction or from information transmitted by a person with knowledge. Cobbins v. Tenn. Dep't. of Transp., 566 F.3d 582, 588 (6th Cir. 2009). Defendants argue that the e-mails are not kept in the course of regularly conducted school district activities or in the regular course of school district business. The Court does not anticipate that Galloway will be able to provide the required foundational evidence. See 5 WEINSTEIN'S FEDERAL EVIDENCE § 803.08 ("The fact that proffered records fulfill these requirements is ordinarily shown by the testimony of a custodian of the records "or another qualified witness" who can explain the record-keeping of the organization.")