United States District Court, D. North Dakota, Eastern Division
THE FAMILIES ADVOCATE, LLC, an Arizona Limited Liability Corporation, as Conservator of D.M., a Minor; and SARINA BONNO and JULIAN MORENO, Individually PLAINTIFFS
v.
SANFORD CLINIC NORTH d/b/a SANFORD CLINIC JAMESTOWN; SARAH SCHATZ, M.D.; and LUTHERAN CHARITY ASSOCIATION d/b/a JAMESTOWN REGIONAL MEDICAL CENTER DEFENDANTS
ORDER
TIMOTHY L. BROOKS, UNITED STATE'S DISTRICT JUDGE
Now
before the Court are Defendants' Motions in Limine to
Exclude Day in the Life Video (Docs. 199, 226). Defendants
filed these motions protectively, before they were provided
with copies of the day-in-the-life video that Plaintiffs
propose to show to the jury. The Court held a telephonic
conference with the parties on June 11, 2019, in large part
to discuss Defendants' reaction to viewing the actual
video. The Court inquired of Defendants whether they still
maintained that the entire video should be excluded, as they
had argued in their motions, and they confirmed that they
did.
The
day-in-the-life video is exactly fifteen minutes long and
depicts mostly D.M. and his mother, but it also contains some
footage of D.M.'s grandmother and his two younger
brothers. The video contains no audio. It depicts D.M.
performing daily tasks with the assistance of his mother and
grandmother. These tasks include getting D.M. up, changing
his diaper, feeding him breakfast and medication, getting him
dressed, performing some physical therapy, placing him in a
walker outdoors, placing him in a car along with his
wheelchair, strapping him into his wheelchair, sitting with
him in a swing at a playground, undressing him, giving him a
shower, dressing him for bed, playing with him, having him
move around on the floor on all fours, and putting him to
bed.
Defendants
argue that this kind of video does nothing more than appeal
to the emotions, passion, and prejudice of the jury and
serves no other meaningful purpose. They also argue that the
actions depicted in the video may be explained to the jury
with witness testimony alone, such that the video would
simply be duplicative of witness testimony. They ask that the
video be excluded under Rule 403.
After
viewing the video and considering Defendants' arguments,
the Court finds there is nothing fundamentally inadmissible
about a day-in-the-life video, and there is nothing about
this particular video that would likely lead to unfair
prejudice, as described in Rule 403. The Court has reviewed
the Tenth Circuit's opinion in Bannister v. Town of
Noble, Oklahoma, 812 F.2d 1265 (10th Cir. 1987), for
helpful guidance on these issues, as the Eighth Circuit's
precedent on the admissibility of day-in-the-life videos is
sparse. The Bannister Court observed: "These
films are ... . often desired because films illustrate,
better than words, the impact the injury had had on the
plaintiffs life." Id. at 1269 (internal
quotation marks and citation omitted). The Court cautioned,
however, against allowing "egregious self-serving
conduct" to be depicted, as well as scenes showing
"[exaggerated difficulty in performing ordinary
tasks"-as such depictions could present a danger of
undue prejudice. Id. Similarly, the Court noted that
"conduct that serves little purpose other than to create
sympathy for the plaintiff is highly prejudicial."
Id. (quotation marks and citation omitted and
cleaned up).
The
day-in-the-life video at issue in Bannister was
deemed admissible by the trial court, and the Court of
Appeals found no abuse of discretion. This was because the
film simply and accurately portrayed the victim's daily
routine of "getting around school, getting into his car,
pumping gasoline for his car, and performing several
different tasks in his home." Id. at 1270.
Further, the Court found that any potential prejudice
implicated in showing the film was "significantly
reduced" by the fact that the film's subjects were
available for cross-examination at trial. Id.
In the
case at bar, the risk of prejudice in showing the
day-in-the-life video to the jury is negligible. First,
D.M.'s mother and grandmother, who are depicted in the
video, will be present at trial for cross-examination.
Second, the video depicts D.M.'s daily tasks in a rather
dispassionate way and is neither overly sympathetic nor
emotional. For example, D.M. is never shown crying,
complaining, refusing to perform a task, or demonstrating
pain in the video. Third, the video does not depict D.M. or
any of his caregivers showing exaggerated difficulty in
performing any task. Finally, the Court finds that the video
will be useful to the jury in depicting D.M.'s daily
tasks in a way that witness testimony alone could not
accurately capture. Because the film is so short, it is not
likely to overwhelm or be duplicative of any live testimony.
Accordingly, Defendants' Motions in Limine to Exclude Day
in the Life Video (Docs. 199, 226) are both DENIED.
As
stated during the hearing on June 11, Plaintiffs will be
permitted to play the day-in-the-life video one time in its
entirety during Sarina Bonno's testimony. In addition,
the Court will allow Plaintiffs to play certain designated
clips from the video, as set forth in an email sent by
Plaintiffs' counsel on June 4, 2019, to accompany the
testimony of Drs. Mukund and/or Burris. In total, however,
the Plaintiffs may not play any portion of the video more
than twice to the jury. If Plaintiffs seek to play a
video clip a third time at trial, they must first seek leave
of Court.
Finally,
as to the issue of the raw footage from both the
day-in-the-life video and a separate settlement conference
video, this raw footage was provided to the Court for viewing
in camera. Defendants requested a copy of the raw
footage, and Plaintiffs objected, arguing that it was
exempted from production under Rule 26(b)(3). The Court
agrees that the raw footage is exempt from production.
Further, the Court notes that the raw footage contains
nothing materially different from the footage that Defendants
have already been provided. Categorically, the exceptions are
as follows: (1) the raw footage shows D.M. using his fingers
to feed himself; (2) the raw footage features a therapist
performing physical therapy with D.M. in D.M.'s home; (3)
the footage depicts D.M. being given a sponge bath by his
mother on the kitchen counter/sink; and (4) the footage shows
D.M.'s ...