United States District Court, E.D. Pennsylvania
February 2, 2004.
LISA HARRIS FISHER and CHARLES FISHER, Plaintiffs,
ACCOR HOTELS, INC., Defendant
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court is a styled Motion in Limine to Preclude
Defendant from Calling Witnesses or Offering Evidence as to Plaintiff's
Representations on an Application for DPW Benefits filed by Plaintiffs
Lisa Harris Fisher and Charles Fisher (collectively, "Plaintiffs") and
the Response thereto filed by Defendant Accor North America, Inc.
("Defendant"). Plaintiffs move in limine to exclude evidence of Plaintiff
Lisa Harris Fisher's statements in an application for benefits from the
Commonwealth of Pennsylvania Department of Public Welfare ("DPW") as
improper impeachment evidence under Federal Rule of Evidence 609, which
governs impeachment by evidence of criminal conviction, while Defendant
argues that such evidence is permissible under Federal Rule of Evidence
608(b), which sets forth the parameters for inquiry into specific
instances of conduct when demonstrating a witness' credibility for
truthfulness. For the following reasons, Plaintiffs' Motion in Limine is
GRANTED IN PART and DENIED IN PART.
Plaintiffs allege in their Complaint that, on or about July 25, 2001,
Lisa Harris Fisher sustained personal injuries when she slipped and fell
in a bathtub in a Red Roof Inn motel owned and operated by Defendant.
Charles Fisher, Lisa Harris Fisher's husband, alleges loss of consortium.
During a deposition on April 8, 2003, Lisa Harris Fisher testified that
she had been residing with her husband at the time of the alleged
accident, and that she continued to reside with him. She also testified
that she was covered by her husband's health insurance plan. Lisa Harris
Fisher further testified that she had completed an application for DPW
benefits, and provided part of that application to defense counsel during
Defendant has supplied the Court with a copy of Lisa Harris Fisher's
October 22, 2002 DPW application for cash assistance, medical benefits,
food stamps and emergency cash assistance, as well as the August 6, 2003
deposition transcripts of two DPW employees, Jeanne Gudnitz and Gail
Elliot, who had contact with Ms. Fisher as her intake worker and career
development counselor respectively.
Lisa Harris Fisher represented on her DPW application that she was
separated from her husband, Charles Fisher, that his address was unknown
to her, and that he was providing no support
to her. (Def.'s Ex. 1 at 510, 513.) At the end of the application,
Lisa Harris Fisher's signature appears beneath the following statement:
"I certify that, subject to penalties provided by law, the information I
gave is true, correct, and complete to the best of my knowledge."
(Def.'s Ex. 1 at 521.)
Plaintiffs object to the admission of any evidence relating to Lisa
Harris Fisher's DPW application, including any testimony from the DPW
employees, because, Plaintiffs allege, Lisa Harris Fisher has never been
convicted a crime and Defendant seeks to impeach her credibility by
offering evidence that is inconsistent with Rule 609.*fn1 In response,
Defendant concedes that it intends to use the DPW application to impeach
Lisa Harris Fisher's credibility, and clarifies the basis for propounding
evidence by enumerating the evidentiary rules relevant to this dispute,
specifically, Rules 608(b) and 403. We agree that Rule 608(b), not Rule
609, provides the proper analytical framework for Plaintiffs' motion in
limine, and review Plaintiffs' motion accordingly.
Federal Rule of Evidence 608(b) provides:
Specific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness'
character for truthfulness, other than conviction of
crime as provided in rule 609, may not be proved by
extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness
or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the
witness' character for truthfulness or
untruthfulness. . . .
Fed.R.Evid. 608(b). Once the Court finds that the proffered evidence
falls within the purview of Rule 608(b), such evidence must then be
evaluated under Rule 403 to determine whether its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury. United States v. Bocra, 623 F.2d 281
288 (3d Cir. 1980).
In a case analogous to this one, the United States Court of Appeals for
the Third Circuit held that use of a letter for impeachment on
cross-examination does not violate Rule 608(b) where the witness does not
deny having written the letter. Carter v. Hewitt, 617 F.2d 961 (3d Cir.
1980). In that case, Carter, a state prison inmate, had written a letter
describing how to file a complaint charging prison guard brutality. Id.
at 964. During Carter's testimony at his civil rights trial
alleging brutality by guards, the defendant confronted Carter with the
letter on cross-examination. Id. On appeal, Carter claimed that use of
the letter violated the limitations on impeachment set forth in Rule
608(b). Id. at 969.
The Third Circuit explained that "[t]he principal concern of the rule
[608(b)] is to prohibit impeachment of a witness through extrinsic
evidence of his bad acts when this evidence is to be introduced by
calling other witnesses to testify." Id. The court determined that no
violation of the rule occurred in that case, since Carter did not deny
having written the letter, rather conceded authorship, but claimed that
the letter was not an effort to encourage the filing of false
complaints. Id. at 970. The court held that, particularly where
credibility is the critical issue, "the extrinsic evidence ban should be
relaxed when the witness sought to be impeached admits the impeaching
act." Id. at 971 n.11.
Here, Lisa Harris Fisher's credibility is a critical issue in her
personal injury claim since she is the only witness to her alleged
accident at the Red Roof Inn. As a witness, one's character for
truthfulness or untruthfulness is always at issue, particularly, where,
as here, credibility is a critical issue. If, indeed, there were
misrepresentations made by Lisa Harris Fisher on her DPW application they
would certainly be matters probative of her character for truthfulness.
There is no dispute here that Lisa Harris Fisher completed the DPW
signed it under penalty of law, thus, effectively, adopting the
statements contained therein. That being the case, Rule 608(b)'s
prohibition against introducing extrinsic evidence for the purpose of
attacking or supporting a witness' character for veracity is inapplicable
here. See Carter v. Hewitt, 617 F.2d at 964.
Upon balancing, it is apparent that Rule 403 does not help Plaintiffs.
Rule 403 provides:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
Fed.R.Evid. 403. The rule does not offer protection against evidence that
is merely prejudicial, in the sense of being detrimental to a party's
case; rather, the rule only protects against evidence that is unfairly
prejudicial. Carter, 617 F.2d at 972. Evidence is unfairly prejudicial
when it has "an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one." Advisory Committee's
Note, Fed.R.Evid. 403.
There is no doubt that introduction of the DPW application will have a
prejudicial effect on Plaintiffs' case. The jury may make an adverse
inference about Lisa Harris Fisher's character for truthfulness, but that
is precisely the reason for admissibility of such evidence. See Adelman
v. GMAC Mortgage
Corp., No. Civ. A. 97-691, 1998 U.S. Dist. LEXIS 1211 at *4 n.2 (E.D.
Pa. Feb. 5, 1998). Plaintiffs make no showing that introduction of the
DPW application would present a danger of unfair prejudice, especially
since Lisa Harris Fisher conceded to having completed the DPW application
for benefits. Moreover, Plaintiffs' counsel will have an opportunity on
redirect to rehabilitate Lisa Harris Fisher, if necessary, as to why such
alleged misrepresentations were made on her DPW application. Since the
parties do not dispute that Lisa Harris Fisher completed the application
at issue in this motion, there will be no need to elicit any testimony
from the two DPW employees, Jeanne Gudnitz and Gail Elliot concerning her
Accordingly, upon proper foundation, evidence relating to Plaintiff
Lisa Harris Fisher's representations on her DPW application shall be
permitted under Rule 608(b) as the parties do not dispute that she
completed the application, and the probative value of admitting such
evidence is not substantially outweighed by any danger of unfair
prejudice. Therefore, testimony from the DPW employees relating to Lisa
Harris Fisher's application will be unnecessary and shall not be
introduced in evidence. For these foregoing reasons, Plaintiff's Motion
in Limine is GRANTED IN PART and DENIED IN PART.