The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
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
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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