Commercial Litigation and Arbitration

Video Evidence Should Be Reviewed by the Court In Camera before It Is Displayed to Jury — Fact That Attorney Referred Plaintiff to Physician Is Relevant, Admissible — Fact Plaintiff’s Counsel Advertises Excluded

Ernestine v. Hi-Vac LLC, 2016 U.S. Dist. LEXIS 141290 (S.D. Miss. Oct. 12, 2016):

This matter is before the Court on the Motion in Limine [143] filed by Plaintiff Lionel Ernestine ("Plaintiff"), and the Motion in Limine [147] filed by Defendant [*2]  Hi-Vac LLC ("Defendant"). After considering the submissions of the parties, the record, and the relevant law, the Court finds that Plaintiff's Motion in Limine [143] should be granted in part, denied in part, and deferred in part. The Court further finds that Defendant's Motion in Limine [147] should be granted.


3. Attorney Referral

Plaintiff contends that any testimony regarding the fact that his attorneys may have referred him to any hospital or doctor be excluded as irrelevant under F.R.E. 401 and unfairly prejudicial under F.R.E. 403. Defendant argues that there is evidence in the record to support the fact that Plaintiff's attorney did in fact refer [*6]  him to one of his physicians and that this evidence is relevant for impeachment of those physicians' diagnoses. The Court agrees that this evidence is relevant to show bias of Plaintiff's physicians and does not find that this relevance is substantially outweighed by a danger of unfair prejudice to Plaintiff. Therefore, Plaintiff's motion will be denied as to this argument.


8. Advertisement by Law Firms

Plaintiff asks that the Court exclude any evidence regarding the advertising practices of his attorneys. Defendant makes no argument as to this request, and the Court finds that such evidence would not be relevant under F.R.E. 401. Plaintiff's motion will be granted as to this request as well.


9. Photographs and Video Evidence

Plaintiff requests that any photographic or video evidence Defendant wishes to introduce as evidence be viewed by the Court outside the presence of the jury in order to determine its admissibility. Plaintiff further asks that the jury not be told this evidence exists unless it is deemed admissible. Finally, Plaintiff argues that any such evidence is inadmissible as irrelevant under F.R.E. 401 and unfairly prejudicial under F.R.E. 403.

Without viewing the photographic or video evidence, it is impossible for the Court to make a ruling as to its inadmissibility under F.R.E. 401 or 403. Therefore, it is appropriate that this ruling be deferred.

However, finding no objection by the Defendant and the request to be appropriate, the Court will grant Plaintiff's motion in that the admissibility of this type of evidence will be determined outside [*10]  the jury's presence and without the jury being informed of its existence.


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