Vaughn v. Carnival Corp.

571 F.Supp.3d 1318

Tammy VAUGHN, Plaintiff,

v.CARNIVAL CORPORATION and XYZ Nurse, Defendants.

Case No. 20-cv-23153-BLOOM/Louis

United States District Court, S.D. Florida.

Signed November 29, 2021

Jacqueline Garcell, Jason Robert Margulies, Luis Alexander Perez, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiff.

Cameron Wayne Eubanks, Christopher Bond Smith, George M. Koonce, III, Katina M. Hardee, Victor Jose Pelaez, Fowler White Burnett, P.A., Miami, FL, for Defendant Carnival Corporation.

ORDER ON DEFENDANT'S MOTION IN LIMINE

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Carnival Corporation's ("Defendant") Motion in Limine , ECF No. [32] ("Motion"), filed on November 1, 2021. Plaintiff Tammy Vaughn ("Plaintiff") filed her Response in Opposition, ECF No. [33] ("Response"), to which Defendant filed a Reply, ECF No. [34] ("Reply"). The Court has carefully reviewed the Motion, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted in part and denied in part consistent with this Order.

I. BACKGROUND

Plaintiff allegedly sustained an eye injury in August 2019 while aboard Defendant's cruise. See ECF No. [1]. Plaintiff asserts claims against Defendant based upon general negligence ("Count I"); negligent failure to warn ("Count II"); negligence for the acts of the shipboard nurse, Mr. Ferdinand Rapanan ("Mr. Rapanan"), on a theory of respondeat superior ("Count III"); negligence for the acts of medical personnel based on a theory of apparent agency ("Count IV"); negligence for the acts of Mr. Rapanan based on a theory of joint venture ("Count V"); and negligent hiring and/or retention ("Count VI"). See generally id.

On November 1, 2021, Defendant filed the instant Motion in Limine challenging: (1) a "handout" that the shipboard medical staff allegedly provided to Plaintiff; (2) statements allegedly made by the shipboard medical staff; (3) opinions from Plaintiff's treating physicians about causation; (4) evidence of prior incidents or claims; and (5) evidence or argument that Plaintiff uses a guide dog for the visually impaired or is reliant on such a dog. See generally ECF No. [32]. Plaintiff argues that the challenged evidence is admissible or that the Court should reserve ruling on the admissibility of the challenged evidence until the trial. See generally ECF No. [33].

II. LEGAL STANDARD

"In fairness to the parties and their ability to put on their case, a court should exclude evidence in limine only when it is clearly inadmissible on all potential grounds." United States v. Gonzalez , 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010). "The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground." Id. "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context." In re Seroquel Prods. Liab. Litig. , Nos. 6:06-md-1769-Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 WL 260989, at *1 (M.D. Fla. Feb. 4, 2009). Likewise, "[i]n light of the preliminary or preemptive nature of motions in limine, ‘any party may seek reconsideration at trial in light of the evidence actually presented and shall make contemporaneous objections when evidence is elicited.’ "

Holder v. Anderson , No. 3:16-CV-1307-J-39JBT, 2018 WL 4956757, at *1 (M.D. Fla. May 30, 2018) (quoting Miller ex rel. Miller v. Ford Motor Co. , No. 2:01CV545FTM-29DNF, 2004 WL 4054843, at *1 (M.D. Fla. July 22, 2004) ); In re Seroquel Prod. Liab. Litig. , 2009 WL 260989, at *1 ("The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine. " (citing United States v. Connelly , 874 F.2d 412, 416 (7th Cir. 1989) )).

Evidence is admissible if relevant, and evidence is relevant if it has any tendency to prove or disprove a fact of consequence. Fed. R. Evid. 401, 402 ; Advisory Comm. Notes, Fed. R. Evid. 401 ("The standard of probability under the rule is ‘more probable than it would be without the evidence.’ "); United States v. Patrick , 513 F. App'x 882, 886 (11th Cir. 2013). A district court may exclude relevant evidence under Rule 403 if "its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting of time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. " Rule 403 is an extraordinary remedy which the district court should invoke sparingly, and the balance should be struck in favor of admissibility." Patrick , 513 F. App'x at 886 (citing United States v. Lopez , 649 F.3d 1222, 1247 (11th Cir. 2011) ). Rule 403 ’s "major function ... is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect." United States v. Grant , 256 F.3d 1146, 1155 (11th Cir. 2001) (quoting United States v. Cross , 928 F.2d 1030, 1048 (11th Cir. 1991) ).

i. Handout Allegedly Provided by the Shipboard Medical Staff

Defendant seeks to exclude the handout that the shipboard medical staff allegedly gave to Plaintiff. ECF No. [32] at 1. Defendant argues that the handout is not authentic, and it is hearsay that does not fit within any hearsay exception. See id. at 2. Plaintiff responds that the handout has been authenticated through depositions and it is not hearsay. ECF No. [33] at 2-8. Plaintiff contends that, even if the handout is hearsay, several hearsay exceptions apply. See id. at 6-8.

First, in order to authenticate 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. As Defendant correctly notes, the Eleventh Circuit has determined that Rule 901 only "requires a proponent to present sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be." ECF No. [34] at 1; United States v. Maritime Life Caribbean Ltd. , 913 F.3d 1027, 1033 (11th Cir. 2019) (quoting United States v. Lebowitz , 676 F.3d 1000, 1009 (11th Cir. 2012) ). Rule 901(b)(1) further states that "testimony of a witness with knowledge" that "an item is what it is claimed to be" can establish authenticity. Fed. R. Evid. 901(b)(1).

Plaintiff points out that she testified in her deposition that Defendant's nurse gave her the handout in question. ECF Nos. [33] at 2; [32-1] at 18. Plaintiff's husband also confirmed that Defendant's nurse gave Plaintiff the handout. ECF Nos. [33] at 3; [32-5] at 14. Lastly, Defendant's corporate representative also testified at his deposition that the handout contains recommendations that are consistent with Defendant's medical advice. ECF No. [33] at 3-4; see also ECF No. [32-3] at 13. Defendant argues that self-serving testimony from Plaintiff does not meet the threshold for showing that the handout is what it purports to be. ECF No. [34] at 1-2. Defendant also argues that Defendant's corporate representatives’ statement that the handout is generally consistent with Defendant's recommendation is not sufficient to establish authenticity. ECF No. [34] at 2. Defendant further argues that there is no other evidence, such as Carnival's logo, indicating who made the handout or when. ECF No. [32] at 2.

The Court agrees with Defendant only to the extent that Defendant's corporate representative's statement – that the handout contains recommendations that are generally consistent with Defendant's own medical advice – does not establish authenticity. However, considering Rule 901(b)(1), sworn deposition testimony from Plaintiff and Plaintiff's husband meet the threshold requirement to establish a prima facie case for authenticity. See Fed. R. Evid. 901(b)(1). The Court notes that any dispute as to the authenticity of the handout beyond this threshold goes to the weight of the evidence to be determined by the jury, not admissibility. See Maritime Life Caribbean Ltd. , 913 F.3d at 1033.

Next, the Court must address whether the handout is hearsay and whether a hearsay exception applies. Plaintiff relies on Ash v. Sambodromo, LLC , 676 F. Supp. 2d 1360 (S.D. Fla. 2009), to argue that the handout is not hearsay because it is an opposing party's statement, and that even if the handout is hearsay, it falls within several hearsay exceptions. ECF No. [33] at 5-6. Defendant argues that the handout is hearsay, and that no hearsay exception applies. ECF Nos. [32] at 2; [34] at 2.

Rule 801(d)(2) states the following:

(2) An Opposing Party's Statement . The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

Fed. R. Evid. 801(d)(2). Plaintiff must meet any one of the above factors for the handout to be admissible as an opposing party's statement.

As Plaintiff correctly argues, Mr. Rapanan gave the handout to Plaintiff in his representative capacity as the shipboard nurse for Defendant. ECF No. [33] at 5. Therefore, the first factor is met. See Fed. R. Evid. 801(d)(2)(A). Even if Mr. Rapanan did not give the handout to Plaintiff in his representative capacity, according to Plaintiff's deposition, Mr. Rapanan admitted that the information in the handout was Defendant's medical advice. ECF Nos. [33] at 5; [32-1] at 18. Therefore, the handout is admissible under the second factor. See Fed. R. Evid. 801(d)(2)(B). Furthermore, according to the deposition of Defendant's...