The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Defendant Davies Estate's motion in limine to exclude 1) all evidence relating to Davies' suicide; 2) evidence of future damage; 3) any expert witnesses; and 4) a variety of documents that include inadmissible hearsay. (Doc. No. 104.) Plaintiffs responded with a brief in opposition and supplemented that by affirming during the pre-trial conference that they will not introduce the contested hearsay documents except as necessary upon cross-examination.
During the 2005-2006 school year, two girls, P.W. and B.H., allege that they were sexually assaulted by David Davies, History and Earth Science teacher at Forbes Road Junior/Senior High School. (Doc. No. 83 ¶¶ 1-2, Doc. No. 86 ¶¶ 1-2.)*fn1 B.H. was in the eighth grade at the time, and P.W. was in the ninth grade. (Doc. Nos. 84 ¶ 1 and 87 ¶ 1.) On March 30, 2006, P.W. reported to the school secretary, Mrs. Hohman, that Davies sexually assaulted her by touching her legs, chest, and buttocks while she was alone with him in his classroom. (Doc. No. 83 ¶¶ 5-9.)
B.H. alleges even more extensive incidents of sexual abuse by Davies. Beginning around September 2005, Davies began touching her shoulder or leg, kissing, and verbally soliciting her during class and while they were alone in his classroom. (Doc. No. 86 ¶¶ 6-7.) Starting around January 2006 and continuing through March 29, 2006, Davies privately touched B.H. in a sexually explicit manner and forced her to touch him. (Doc. No. 86 ¶ 8.) B.H.'s teachers did not suspect inappropriate behavior, although there allegedly were rumors circulating around the school that B.H. was Davies' "boyfriend," and prior to the incident, P.W. had reported to guidance counselor Gayle Swales that Davies made "inappropriate comments" during class. (Doc. No. 86 ¶¶ 23-29, Doc. No. 83 ¶¶ 18, 23, Doc. No. 94, at 10.) B.H. did not report any inappropriate conduct until she revealed the abuse to Hohman during a ride home from school on March 31, 2006, one day after P.W. reported her incident. (Doc. No. 86 ¶ 13.) Hohman told B.H. to make a report to the state police, and state police later spoke with B.H. on April 6, 2006 about the abuse. (Doc. No. 86 ¶¶ 14-17.)
Davies was suspended from teaching on April 3, 2006, and committed suicide on April 10, 2006, two days after he was released on bail and prior to the start of this litigation. (Doc. No. 102, at 9.) An Estate for David Davies was opened by Lisa Davies, widow of David Davies, for purposes of litigation only.
At the outset, the Court notes the parties' agreement concerning the extent of evidence that is properly offered concerning Davies' suicide. Plaintiff no longer plans to offer autopsy photographs and the suicide note. Rather, we discuss here the fact of the suicide.
A. Admissibility of the Fact of Suicide
As Defendant's brief concedes, suicide is generally regarded as circumstantial evidence of guilt, comparable to flight. See United States v. Cody, 498 F.3d 582 (6th Cir. 2007); Johnson v. Sublett, 63 F.3d 926 (9th Cir. 1995); Tug Raven v. Trexler, 419 F.2d 536 (4th Cir. 1969); United States v. Johnson, 354 F.Supp.2d 939 (N.D.Iowa 2005). Because Defendant contests Plaintiffs' allegations of abuse by Davies, and suicide is probative of guilt, evidence of the suicide is relevant under Rule 401. Fed. R. Evid. 401 ("'Relevant evidence' means 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."). Exculpatory notes accompanying the suicide do not make the suicide irrelevant, they only combat the inference to be drawn from the suicide.
Although relevant, the evidence may nonetheless still be inadmissible if the Court finds that evidence of Davies' suicide is unfairly prejudicial and should be excluded under the balancing test of Rule 403. Fed. R. Evid. 403 ("[E]vidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ."). Nonetheless, there is a preference for admitting all relevant evidence (Fed. R. Evid. 402), and the prejudice to Defendant must be not only substantially outweighed by the prejudice, but the prejudice must also be unfair.
As Defendant points out in its brief, suicide is viewed by some as a sinful, immoral, violent act, and therefore may be prejudicial. However, this possibility exists with every suicide or suicide attempt, and evidence of suicide is often allowed in courts. See e.g., Dale Gilsinger, 73 American Law Reports 5th 615 § 2[a]. Defendant has made no special distinction that evidence of Davies' suicide would raise particular concerns of prejudice such that the probative value would be substantially outweighed by unfair prejudice per se.*fn2 Absent such a showing at trial, the fact, but not the details of Davies' suicide will be admitted at trial and Defendant's motion in limine is denied.
Defendant next argues that evidence of future damages is inadmissible because no evidence has been presented that would establish "with a reasonable certainty" that Plaintiffs will sustain future emotional ...