The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Presently before the court are two motions in limine (Docs. 188, 191) filed by plaintiff David Lee Womack ("Womack") to exclude various evidence and testimony at the trial in this matter set to commence on April 30, 2012. For the reasons that follow, the court will grant the motions in part and deny the motions in part.
Plaintiff Womack, an inmate currently incarcerated at USP Florence in Florence, Colorado, brings this Bivens action*fn1 against prison officials Joseph V. Smith, Kenneth Gabrielson, D. Scott Dodrill and John Oliver. Womack asserts that defendants violated his Eighth Amendment rights against cruel and unusual punishment when they maintained him in ambulatory restraints for 26 consecutive days from December 9, 2004 until January 3, 2005, while housed at USP Lewisburg in Lewisburg, Pennsylvania.
On March 12, 2012, Womack filed his first motion in limine (Doc. 188), in which he seeks to preclude defendants from offering at trial any testimony or evidence relating to: (1) Womack's criminal record, (2) Womack's prison disciplinary record prior to his August 7, 2003, transfer to USP Lewisburg, (3) events and conduct after January 3, 2005 that do not specifically relate to the restraint of Womack from December 9, 2004 until January 3, 2005, and (4) eight videos of Womack from instances prior to or after the restraint period at issue in this case. Womack moves to preclude the evidence and testimony pursuant to Federal Rules of Evidence 402, 403, 404, and 609. Womack asserts that the evidence is irrelevant, inadmissible character evidence, and to the extent relevant, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues and waste of time. Defendants oppose the motion asserting that Womack is attempting unduly compartmentalize his 26 days in restraints without providing the appropriate and necessary background as to how the situation arose and the basis for defendants' decision to maintain Womack in restraints. (Doc. 194).
In Womack's second motion, filed on March 16, 2012, Womack asks the court to preclude the testimony of certain defense witnesses who Womack claims were never previously disclosed. On March 12, 2012, counsel for defendants provided counsel for Womack with a list of 61 individuals who came into contact with Womack during the restraint period at issue. (Doc. 192, Ex. C). Counsel for Womack avers that 41 of the 61 individuals had not been previously disclosed by either party. (Doc. 192, at 2). Womack moves pursuant to Federal Rule of Civil Procedure 37(c)(1) to exclude the testimony of the newly identified witnesses for violation of defendants' discovery obligations under Rule 26(a). Defendants counter that they complied with their discovery obligation disclosure requirements and, therefore, Womack's motion should be denied. (Doc. 195). The motions have been fully briefed and are ripe for disposition.
A. First Motion in Limine
The Federal Rules of Evidence govern the admissibility of evidence at trial. All relevant evidence is admissible unless otherwise stated by the Constitution, statue or other Federal Rules. FED. R. EVID. 402; see also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993) (noting that the "[b]asic standard of relevance under Federal Rules of Evidence is liberal one."). Under Rule 401, evidence is relevant if it has "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." FED. R. EVID. 401. Evidence that is not relevant is not admissible. FED. R. EVID. 402.
Pursuant to Rule 403 of the Federal Rules of Evidence, the court may exclude relevant evidence "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 cumulative evidence." FED. R. CIV. P. 403; see also Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 382 (2008); Coleman v. Home Depot Inc., 306 F.3d 1333, 1343-44 (3d Cir. 2002). The Third Circuit has cautioned that the exclusion of potentially relevant evidence pursuant to Rule 403 is an "extreme measure" at the pre-trial stage. Hines v. Consol. Rail Corp., 926 F.2d 262, 274 (3d Cir. 1991). Evidence should rarely be excluded in limine pursuant to Rule 403 because "[a] court cannot fairly ascertain the potential relevance of evidence for Rule 403 purposes until it has a full record relevant to the putatively objectionable evidence." In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1999).
Pursuant to Rule 404 of the Federal Rules of Evidence, character evidence is generally not admissible to prove conduct. In particular, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." FED. R. EVID. 404(b). Other crimes, wrongs or acts are admissible, however, to prove motive, opportunity, intent, preparation, and plan. Id.
In a closely related vein, but contrary to the general rule on character evidence, evidence of habit or routine practice is admissible to prove that the conduct of a person on a particular occasion is in conformity with the habit or routine practice. FED. R. EVID. 406; see also FED. R. EVID. 406 advisory committee notes (1972) ("Character and habit are close akin."). Habit is described as one's regular response to a repeated, specific situation. See Becker v. ARCO Chemical Co., 207 F.3d 176, 204 (3d Cir. 2000) (quoting FED. R. EVID. 406 advisory committee notes (1972)); see also id. ('The doing of the habitual acts may become semi-automatic.').
Finally, Rule 609 of the Federal Rules of Evidence governs the admissibility of a witness's prior convictions for impeachment purposes. Pursuant to Rule 609(a), for purposes of attacking the character for truthfulness of a witness, evidence that the witness has been convicted of a felony "shall be admitted, subject to Rule 403 . . . if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." FED. R. EVID. 609(a)(1). In analyzing conviction evidence, the court must engage in a "genuine balancing" of probative value and prejudicial effect. Tabron v. Grace, 898 F. Supp. 293, 297 (M.D. Pa. 1995). Important considerations include "the nature of the convictions, the time that has elapsed since conviction, the importance of credibility to the underlying claim, and the potential for prejudice from admitting the convictions." Id. at 295.
A conviction more than ten years old (measured from the date of conviction or release from confinement for the conviction, whichever is later), is generally not admissible "unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantial outweighs its prejudicial effect." FED. R. EVID. 609(b). Thus, convictions over ten years old are only to be admitted in exceptional circumstances and the Rule 403 balancing is reversed. Whereas under Rule 403 unfair prejudice must substantially outweigh the evidence's probative value, for convictions over ten years old, the probative value of the conviction must substantially outweigh the prejudicial effect.
1. Womack's Criminal Record
Womack seeks to preclude any evidence of his criminal record, which includes convictions for burglary, armed robber, sexual assault, and kidnapping from the 1980s and 1990s. Womack contends that the convictions are irrelevant to the issue in this case-his period in restraint. To the extent the convictions are relevant, Womack claims that they should be excluded pursuant to Rule 403. Finally, Womack argues that defendants should be prohibited to using his convictions for impeachment purposes pursuant to Rule 609.
Defendants counter that Womack's convictions are relevant to their decisions regarding the use of restraints. They claim that Womack's criminal history was one factor they took into consideration when managing Womack's violent behavior and determining the appropriate level of restraints. (See Doc. 194, at 11 (averring that "it is important to know an inmate's criminal history, especially if that inmate has a history of assault, as their experience shows that they had to show special precaution with these inmates")). With respect to the use of Womack's convictions for impeachment purposes, defendants contend that the credibility of Womack is a material fact and the use of prior criminal convictions to impeach a witness's credibility is widely permitted. (Doc. 194, at 16).
As an initial matter, the court finds that Womack's convictions and the length of his sentence are relevant to whether defendants had a culpable state of mind. Defendants' knowledge of an inmate's criminal convictions and the length of an inmate's sentence informs their management decisions and is an important consideration in assessing the inmate's risk factors. (See Doc. 194-1, at 3-6, 11, 26, 36). As Womack must established deliberate indifference on behalf of defendants in order to prevail in his Eighth Amendment claim, knowledge of Womack's convictions and sentence length have probative value on the issue of defendants' state of mind in securing Womack within the four corners of the institution.
Despite the relevance of Womack's criminal record, the court must still engage in a Rule 403 balancing of probative value and potential for prejudice. Womack's convictions include armed robbery, burglary, sexual assault, kidnapping, and possession of weapons for unlawful purposes. The nature of the convictions are important factors within the knowledge of defendants when handling Womack. However, the nature of Womack's convictions are violent and likely to be highly inflammatory if disclosed to the jury. The court therefore concludes that a restricted use of Womack's convictions is appropriate. Defendants may testify to their knowledge that Womack was convicted of crimes of violence and was serving a life sentence. The length of Womack's sentence is relevant to defendants' state of mind when managing Womack's custody. Womack's sentence is also quite relevant to Womack's familiarity with institutional settings, as well as his motivation and state of mind during the time period in question. However, the precise nature of Womack's crimes are of limited import to the matter at bar and any probative value is outweighed by the prejudicial effect of such evidence, subject to the caveat noted below with respect to impeachment. With these limitations in place, the court finds that any residual prejudice to Womack can be mitigated though the use of a limiting instruction to the jury, to wit: that evidence of Womack's convictions is admitted only as factual context for the purpose of assessing the parties' intentions or states of mind, and not for any other purpose.
With respect to the use of Womack's criminal record for impeachment purposes, the court notes that the 1988 and 1989 convictions for armed robbery and burglary are more than ten years old. The court does not find exceptional circumstances warranting their admission. Therefore, the defendants shall not reference those convictions for any purpose. See FED. R. EVID. 609(b).
As to the 1990s convictions for which Womack is currently incarcerated, the case of Tabron v. Grace, 898 F. Supp. 293 (M.D. Pa. 1995), is instructive. In Tabron, a § 1983 action against prison officials for failing to protect the incarcerated plaintiff from a fellow inmate, the Honorable Sylvia Rambo granted plaintiff's motion to preclude evidence of his second-degree murder and robbery convictions. Id. at 294. Defendants opposed the motion arguing that the convictions had important probative value on the issue of credibility. Judge Rambo concluded that the credibility of the plaintiff was not as pivotal as the defendants suggested, noting that many of the relevant facts were uncontested, such as whether the plaintiff suffered injuries and the seriousness of the injuries, and the lack of measures taken to separate the plaintiff from the attacking inmate. Id. at 295-96. Also of great significance in Judge Rambo's decision was the fact that the conviction was for murder. "A murder conviction . . . has the potential to do more than create a credibility handicap. It has the potential to so prejudice the jury that its weighing of all the factual issues in the entire case may be impaired." Id. at 296.
In the instant matter, unlike Tabron, Womack's credibility is very much at issue. There are numerous disputed material facts concerning the restraint period, particularly whether Womack suffered injury during his time in restraints from December 9, 2004, to January 3, 2005. (See Doc. 163, at 4-6). Womack must prove as part of his Eighth Amendment claim a serious or significant physical or emotional injury. (See Doc. 163, at 24); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995). Nonetheless, the court must engage in a genuine balancing of the prejudicial effect of the convictions. As noted, the details of Womack's numerous convictions for crimes of violence may potentially distract the jury from the core issues and lead to confusion and error. Hence, the court will not permit defendants to impeach Womack with any additional information regarding his ...