MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

I. INTRODUCTION

This case is set for trial on October 31, 2016. (Doc. 147 at 10 ¶ 13.a). Pending before the court are 18 motions in limine (Docs. 154-156, 158-173) filed by Defendant Fredia Taylor ("Ms. Taylor") on October 3, 2016. No motions in limine have been filed by Plaintiff Gerald Neil Lindley ("Mr. Lindley"). Consistent with the rulings made at the hearing held on October 24, 2016, and as additionally addressed below, Ms. Taylor's motions are GRANTED IN PART and DENIED IN PART.1

II. STANDARDS

A. Applicable Evidentiary Rules

Federal Rule of Evidence ("F.R.E.") 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Regarding the admissibility of evidence generally, F.R.E. 402 provides:

FED. R. EVID. 402.

The exclusionary standard pursuant to F.R.E. 403 states:

FED. R. EVID. 403.

F.R.E. 901(a) generally provides that "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." FED. R. EVID. 901(a). F.R.E. 901(b) lists various examples of acceptable methods for satisfying F.R.E. 901(a) including testimony of a witness with knowledge that "an item is what it is claimed to be." FED. R. EVID. 901(b)(1).

B. Standard of Review

The Supreme Court has steadfastly held that "abuse of discretion is the proper standard of review of a district court's evidentiary rulings." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 517, 139 L. Ed. 2d 508 (1997) (citing United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 470, 83 L. Ed. 2d 450 (1984); Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L. Ed. 487 (1879)). "An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment." United States v. Estelan, 156 F. App'x 185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005)).

Moreover, as the Eleventh Circuit has explained, not every incorrect evidentiary ruling constitutes reversible error:

Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore, even the existence of many evidentiary errors does not guarantee the appealing party a new trial. Instead, such erroneous rulings by a district court must "affect the substantial rights of the parties" in order for reversible error to occur.

III. RULINGS2

Uncontested Motions in Limine

Within the case caption of each one, Ms. Taylor has indicated that the motion is "OPPOSED." The deadline for Mr. Lindley to state his opposition to these motions ran on October 14, 2016, and he contested only Motions in Limine Numbers 1-4, 7-9, 12-15, and 18. (Docs. 178-188). Therefore, Motions in Limine Numbers 5-6, 10-11, and 16-17 (Docs. 172, 158, 162, 163, 168, 169) are GRANTED as unopposed and the parties are HEREBY PROHIBITED from referring at any point during any stage of this trial, i.e., starting with jury selection and ending with closing arguments, to the following precluded documents, witnesses, or other matters:

Contested Motions in Limine

As stated above, Mr. Lindley has specifically challenged Motions in Limine Numbers 1-4, 7-9, 12-15, and 18. (Docs. 178-188). These contested motions are GRANTED IN PART and DENIED IN PART as discussed below:

Ms. Taylor's Motion in Limine Number 1

Ms. Taylor objects to Mr. Lindley's introduction of numerous medical bills and records as lacking proper authentication pursuant to FED. R. EVID. 901(a) and on hearsay grounds. (Doc. 154 at 2-3). Mr. Lindley responds that his medical records and bills can be authenticated by the applicable custodian of records. (Doc. 178 at 1 ¶ 3) Mr. Lindley further respond that these records are admissible under one or more exceptions to the hearsay rule, including specifically the business records exception pursuant to F.R.E 803(6) (Doc. 178 at 1 ¶ 4) as established through a custodian or other qualified witness. FED. R. EVID. 803(6)(D). Mr. Lindley also relies upon the medical treatment and present sense impression exceptions to the hearsay rule for these records. See FED. R. EVID. 803(4) (describing hearsay exception applicable to statements about a medical diagnosis or treatment); FED. R. EVID. 803(1) ("A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.").

The list of records includes:

Ruling(s): Ms. Taylor's Motion in Limine Number 1 is DENIED if these medical records are stipulated to as authentic by Ms. Taylor in advance of trial or are properly authenticated by Mr. Lindley at trial.

Ms. Taylor's Motion in Limine Number 2

Ms. Taylor objects to Mr. Lindley's introduction of "medical bills, prescription costs, doctor/psychology visits, surgery, transportation costs, and pain and suffering unrelated to the injury allegedly caused by the Defendant." (Doc. 155 at 1 (emphasis added)). Ms. Taylor also objects to Mr. Lindley's introduction of past and future lost wages as inadmissible because he "was not gainfully employed at the time of the incident" and as an evidentiary issue requiring expert testimony. Id. Mr. Lindley responds that he "is competent to testify regarding his lost wages claimed as a result of his injuries." (Doc. 178 at 1 ¶ 2).

Ruling(s): Ms. Taylor's Motion in Limine Number 2 is GRANTED to the extent that Mr. Lindley seeks to introduce any evidence unrelated to his injuries that he claims Ms. Taylor caused him. The remaining portion of Ms. Taylor's Motion in Limine Number 2 is WITHDRAWN as stated by defense counsel during the hearing.

Ms. Taylor's Motion in Limine Number 3

Ms. Taylor objects to Mr. Lindley's introduction of damages for permanent injury/disfigurement and for further medical treatment attributable to his injuries on the basis that such evidence is inadmissible in the absence of supporting expert testimony. (Doc. 156 at 1). Ms. Taylor relies upon Jones v. Fortner, 507 So.2d 908 (Ala. 1987), Owens-Corning Fiberglass Corp. v. James, 646 So.2d 669 (Ala. 1994), Collins v. Windham, 167 So.2d 690 (Ala. 1964), and also some non-binding cases as support. See Fortner, 507 So. 2d at 910 ("It has been held that where there is nothing from which a layman can form any well-grounded opinion as to the permanency of the injury or where the injury is purely subjective, expert evidence must be introduced." (citing 25 C.J.S. Damages § 62, at 813 (1966))); cf. James, 646 So.2d 671-72 (finding no error in trial court's admission of expert physician testimony regarding claim for future medical expenses); Windham, 167 So. 2d at 693-94 ("In view of the authorities cited above, we are of the opinion that, where the injury complained of is purely subjective, as in the present case, and where there is no expert medical testimony tending to show the permanency of the alleged injury, mortality tables are not admissible in evidence.").

Mr. Lindley responds that he intends to "offer medical testimony through live witnesses addressing the issue of permanency of injury and future medical needs." (Doc. 179 at 1 ¶ 2).

Alternatively, Mr. Lindley counters that "an exception to the rule of necessity of medical testimony [exists] in cases where lack of care is so apparent that it can be understood by a layman, and requires only common knowledge and experience to understand it." (Id. ¶ 3). Mr. Lindley cites to Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156 (Ala. 1984), as legal support. In Wyatt, the Supreme Court of Alabama explained:

Wyatt, 460 So. 2d at 161 (emphasis added).

Ruling(s): That portion of Ms. Taylor's Motion in Limine Number 3 relating to disfigurement is DENIED. That portion of Ms. Taylor's Motion in Limine Number 3 relating to future medical needs is GRANTED absent Mr. Lindley's offering medical testimony to establish his future medical needs. Finally, the court will allow Mr. Lindley the right to ask the court to reconsider whether medical testimony is required for him to prove the issue of future medical needs to the extent Mr. Lindley is, indeed, able to show that his future medical needs are objectively obvious to a layman and non-speculative in nature.

Ms. Taylor's Motion in Limine Number 4

Ms. Taylor objects to Mr. Lindley's introduction of his notice of claim filed with the City of Birmingham on the bases of relevancy, F.R.E. 403, and hearsay. (Doc. 173 at 1).

Mr. Lindley counters that his sworn statement is admissible (as non-hearsay) under F.R.E. 801(d)(1)(B). (Doc. 180 at 1 ¶ 2). F.R.E. 801(d)(1)(B) provides:

FED. R. EVID. 801(d)(1)(B)(i)-(ii).

Ruling(s): Ms. Taylor's Motion in Limine Number 4 is DENIED with respect to her relevancy and F.R.E. 403 objections. Specifically, Ms. Taylor offers no case authority to support her relevancy and F.R.E. 403 objections to Mr. Lindley's introduction of his notice of claim and the court finds her objections to be undeveloped and unpersuasive. Ms. Taylor's Motion in Limine Number 4 is further DENIED on hearsay grounds to the extent that Mr. Lindley introduces his notice of claim within the confines of FED. R. EVID. 801(d)(1)(B)(i)-(ii).

Ms. Taylor's Motion in Limine Number 7

Ms. Taylor objects to Mr. Lindley's introduction of certain Shelby County records on relevancy, F.R.E. 403, and hearsay grounds. (Doc. 159 at 2). Ms. Taylor further objects to them as lacking proper authentication pursuant to FED. R. EVID. 901(a). Id. Mr. Lindley responds that these records are relevant, that they are more probative than prejudicial, that they can be authenticated by the applicable custodian of record, and that they are admissible under one or more exceptions to the hearsay rule, including specifically the public records exception. (Doc. 181 at 1 ¶¶ -3); see FED. R. EVID. 803(8)(A)(ii) (permitting "a record or statement of a public office" to be admitted if "it sets out . . . a matter observed while under a legal duty to report...."; cf. also White v. City of Birmingham, 96 F.Supp.3d 1260, 1273 (N.D. Ala. 2015), as amended (May 27, 2015) ("[T]he IO reports themselves are hearsay but are admissible under the public records exception to the hearsay rule [under F.R.E. 803(8)(A)(iii)] because they are the official reporting document for BPD for the November 30, 2012 investigation.").

The list of public records includes:

Ruling(s): The court finds these records to be relevant and not subject to exclusion under F.R.E. 403. The court further finds that the public records exception applies to these documents. Accordingly, Ms. Taylor's Motion in Limine Number 7 is DENIED if these records are stipulated to as authentic by Ms. Taylor in advance of trial or are properly authenticated by Mr. Lindley at trial.

Ms. Taylor's Motion in Limine Number 8

Ms. Taylor objects to Mr. Lindley's introduction of photographs of his injuries on F.R.E. 403 grounds. (Doc. 160 at 1). Ms. Taylor argues that "because [Mr. Lindley] cannot demonstrate that the injuries depicted in the photographs he seeks to introduce were caused by [her], the photos have little to no probative value." Id. Ms. Taylor further contends these photographs "would serve only to mislead and highly prejudice the jury against [her]." (Id. at 2). Ms. Taylor cites to no supporting case authority.

Mr. Lindley responds that he "can authenticate all of the photographs as accurately depicting his person and his injuries." (Doc. 182 at 1 ¶ 2). Mr. Lindley further cites to Logan v. Chestnut, 522 F. App'x 668, 671 (11th Cir. 2013) ("Logan was free to challenge the defense witness's testimony, but the district court did not err in admitting the photographs."), as persuasive support and points out that Ms. Taylor's objection really goes to the weight of the evidence rather than its admissibility. (Doc. 182 at 2 ¶ 3).

Ruling(s): Consistent with the court's ruling on Ms. Taylor's Motion in Limine Number 7 above, and in the absence of any case authority showing that it would be appropriate to exclude photographs taken of Mr. Lindley's injuries on F.R.E. 403 grounds, Ms. Taylor's Motion in Limine Number 8 is DENIED.

Ms. Taylor's Motion in Limine Number 9

Ms. Taylor objects to Mr. Lindley's introduction of "[a]ll newspaper, magazine, internet publication, internet blog, twitter account, facebook page, or any other hard document or electronic publication which contains an account of the events made the basis of the Amended Complaint." (Doc. 161 at 1). Ms. Taylor primarily asserts a hearsay objection to these documents with citations to several case authorities and secondarily raises F.R.E. 403. (Doc. 161 at 1-2); see, e.g., United States v. Baker, 432 F.3d 1189, 1211 (11th Cir. 2005) ("The Miami Herald articles are also inadmissible hearsay, as they are relevant primarily to establish the truth of their contents—the identity of the gunmen."), abrogated on other grounds by Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L. Ed. 2d 224 (2006); Baker, 432 F.3d at 1211 n.23 ("In fact, the articles are likely a reporter's account of what eyewitnesses reported; in other words, double hearsay forbidden by Rule 805.").

Mr. Lindley only superficially contests this motion and offers no cases which bring into question Ms. Taylor's hearsay and F.R.E. 403 positions. (Doc. 183 at 1).

Ruling(s): Ms. Taylor's Motion in Limine Number 10 is GRANTED on hearsay and/or F.R.E. 403 grounds as to any materials covered by this motion which are not listed on Mr. Lindley's exhibit list.

Ms. Taylor's Motion in Limine Number 12

Ms. Taylor objects to Mr. Lindley's introduction of evidence relating to punitive damages as subject to exclusion under F.R.E. 403 because "a discussion of punitive damages would serve only to confuse, mislead and prejudice the jury." (Doc. 164 at 1). Ms. Taylor offers no supporting case authority for her position.

Mr. Lindley counters that his deliberate indifference claim asserted against Ms. Taylor in her individual capacity pursuant to § 1983 permits a recovery for punitive damages if he can show she acted recklessly or with a callous indifference to his federally protected rights. (Doc. 184 at 1 ¶ 2).

Ruling(s): Ms. Taylor's Motion in Limine Number 11 is WITHDRAWN as stated by defense counsel during the hearing.

Ms. Taylor's Motion in Limine Number 13

Ms. Taylor objects to Mr. Lindley's introduction of "[a]ny statement, reference to, or mention of any objection [that counsel for Ms. Taylor] has asserted to any discovery in this case in front of the jury." (Doc. 165 at 1). Ms. Taylor neither states what grounds she relies upon to preclude this evidence nor offers any supporting case authority.

Mr. Lindley counters that "[t]he documents in question are relevant, material to the issues and defenses in this case, are more probative than prejudicial, and are otherwise admissible in the trial of the case." (Doc. 185 at 1 ¶ 2). Mr. Lindley also cites to Colonial Pac. Leasing Corp. v. N & N Partners, LLC, 981 F.Supp.2d 1345 (N.D. Ga. 2013) as persuasive support. While Colonial Pac. initially analyzes the admissibility of pleadings and discovery responses under Georgia law, the district court in turn observes that "whether the deficiencies alleged in the state-court complaint are admissible is a question of federal (not Georgia) law. The answer, however, is the same: they are." Id. at 1356 (citing Mitchell v. Fruehauf Corp., 568 F.2d 1139, 1147 (5th Cir. 1978) ("Prior pleadings are admissible if such pleadings indicate that the party against whom they are admitted has adopted a position inconsistent with that in the earlier litigation.")).3

Ruling(s): Ms. Taylor's Motion in Limine Number 13 is GRANTED as clarified on the record to apply only to objections to discovery asserted by defense counsel.

Ms. Taylor's Motion in Limine Number 14

Ms. Taylor objects to "[a]ny reference, suggestion or implication in front of the jury that tends to lead the jury to believe that there are things about the case that either party's counsel cannot tell the jury." (Doc. 166 at 1). Citing to Wilson v. Pepsi Bottling Grp., Inc., 609 F.Supp.2d 1350 (N.D. Ga. 2009), Mr. Lindley counters with that "[b]ecause the Motion fails to state what if any evidence it concerns, there is no possible way that [he] can respond with any substance to the Motion." (Doc. 186 at 1 ¶ 2); see also Wilson, 609 F. Supp. 2d at 1359 (N.D. Ga. 2009) ("The moving party has the burden of proving that the evidence sought to be excluded is inadmissible." (citing Plair v. E.J. Brach & Sons, Inc., 864 F.Supp. 67, 69 (N.D. Ill. 1994))).

Ruling(s): Ms. Taylor's Motion in Limine Number 14 is GRANTED as explained on the record.

Ms. Taylor's Motion in Limine Number 15

Ms. Taylor objects to "[a]ny evidence or testimony the probative value of which is significantly outweighed by a danger that it will subject the Defendant to unfair prejudice." (Doc. 167 at 1). Relying upon Wilson again, Mr. Lindley responds that the motion is too indefinite for him to form a substantive response. (Doc. 187 at 1 ¶ 2).

Ruling(s): Ms. Taylor's Motion in Limine Number 15 is DENIED as too vaguely worded.

Ms. Taylor's Motion in Limine Number 18

Ms. Taylor objects to Mr. Lindley's introduction of City of Birmingham jail logs on the grounds of relevancy, F.R.E. 403, and hearsay. (Doc. 170 at 2). This list of jail records includes:

Ms. Taylor argues that because she did not draft any of these records, they should not be admissible against her. (Doc. 170 at 1-2). Ms. Taylor cites to no case authority to support her objections.

Mr. Lindley responds that these records are relevant because they confirm that Mr. Lindley's condition "was well known within the jail" (Doc. 188 at 2 ¶ 5), that they are more probative than prejudicial, and relying, again, upon White as persuasive authority, that they are admissible under one or more exceptions to the hearsay rule, including specifically the public records exception. (Doc. 188 at 1 ¶¶ 2-3). Mr. Lindley further argues that these records are admissible because the "contain `factual findings' that are `based upon the knowledge or observations of the preparer of the report,' as opposed to a mere collection of statements from a witness." United Techs. Corp. v. Mazer, 556 F.3d 1260, 1278 (11th Cir. 2009) (quoting Miller v. Field, 35 F.3d 1088, 1091 (6th Cir. 1994)); cf. also Mazer, 556 F.3d at 1278 ("It is well established that entries in a police report which result from the officer's own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not." (internal quotation marks omitted) (quoting United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983))).

Ruling(s): Ms. Taylor's Motion in Limine Number 18 is DENIED with respect to her relevancy and F.R.E. 403 objections. Ms. Taylor's Motion in Limine Number 18 is further DENIED on hearsay and authentication grounds.

Concerning the issue of authentication more specifically, counsel for Ms. Taylor stipulated to the court that Mr. Lindley would not be required to put on evidence showing a document's authenticity at trial if that record was produced by any Defendant sued in this case as part of the discovery process.

Also, as confirmed at the end of the hearing, no party is planning to offer a witness's testimony through a deposition transcript.

If any party has any concern about the foregoing summary of the court's rulings and stipulations made by counsel during the hearing, then that party must file a notice of objection and/or clarification with the court no later than 5:00 p.m. on Wednesday, October 26, 2016. Otherwise, any such objection to or clarification of the contents of this order will be waived.

DONE and ORDERED.