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United States District Court, N.D. Illinois, Eastern Division

July 21, 2004.

MICHAEL A. DEWICK, SR., et al., etc., Plaintiffs,
MAYTAG CORPORATION, et al., Defendants.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


In accordance with this Court's June 21, 2004 entry of its final pretrial order and an accompanying minute order, counsel for the litigants have identified certain of their respective objected-to exhibits as calling for in limine determination, rather than having the rulings on those objections deferred until trial. In turn counsel for plaintiffs ("Dewicks," as in all prior opinions), have submitted a letter in response to the ruling request by defendant Maytag Corporation ("Maytag"). This memorandum order addresses those plaintiffs' exhibits ("P. Ex. ___"), with a corresponding memorandum order to be issued when the parties have had their say as to the objected-to Maytag exhibits.

Maytag's objection to P. Ex. 5 is overruled. Because that exhibit is not being admitted for its truth, but rather to demonstrate notice to Maytag of the Drozd injury, it is not vulnerable to a hearsay objection. Nor does it pose the potential for unfair prejudice, so as to bring Fed.R.Evid. ("Rule") 403 into play (objecting counsel too frequently lose sight of the fact that all relevant evidence is by definition prejudicial to the party against whom it is offered, so that Rule 403 speaks only of "the danger of unfair prejudice").

  Maytag's objection to the P. Ex. 6 photograph is also overruled (it is assumed here that those photographs were sent to Maytag by Drozd's counsel, either together with P. Ex. 5 or otherwise). But to avoid any unnecessary cumulativeness that might run afoul of Rule 403, what will go to the jury will be limited to the group photograph and one close-up photograph.

  As for P. Exs. 71 through 73, in limine treatment of those documents appears inappropriate in light of the possible uses that have been identified in Dewicks' July 15, 2004 letter. Accordingly ruling is deferred until trial, with the present indication being that the exhibits will likely be admissible for one or more of those indicated purposes.

  Maytag's objection to P. Exs. 9 and 10 is denied in limine, with the understanding that those exhibits will likely be available at trial for the purposes identified in Dewick's July 15 letter. In this instance, however, it would seem most sensible to limit the jury's access to a single document along the lines of P. Ex. 10: a summary qualifying under Rule 1006. Counsel for the parties should seek to reach agreement on the content of that exhibit, so as to provide the necessary information for the jury without running any undue Rule 403 risk.

  Maytag's objection to P. Ex. 27 is overruled, for the exhibit is clearly relevant. If Maytag is concerned as to any potential for unfair prejudice, its counsel would seem well advised to provide its agreement to the uncontested fact proposal to which Dewicks' July 15 letter refers, thus avoiding introduction of the exhibits themselves.

  Finally, Maytag's objection to the large group of photographs comprising P. Exs. 31 through 51 is granted in part and denied in part. There appears to be no good reason why such a plethora of pictures is needed to demonstrate the nature and extent of Michael Jr.'s injuries and his recuperation. Any such proposed overexposure would appear to pose Rule 403 concerns. Accordingly Dewicks' counsel must be more selective, substituting a smaller number of photographs that would be adequately demonstrative of the facts sought to be proved.


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