William D. Fletcher, Jr., Esquire Michael F. McTaggart, Esquire Noel E. Primos, Esquire Department of Justice Schmittinger & Rodriguez, P.A.
Michael W. Arrington, Esquire Parkowski Guerke & Swayze
The Court has considered the objections to exhibits submitted by the Plaintiff, State Defendants and Delaware State University (hereinafter "DSU"), as well as the motion in limine filed by Plaintiff regarding the 2011 photographs of DSU's campus and the State Defendants' proffered listing of sunset times. I shall first address Plaintiff's motion in limine, then proceed to address each of the parties' arguments pertaining to the exhibits. This letter addresses all of the parties' submissions to date. Anything not discussed shall be addressed at trial.
DSU Campus Photographs
Plaintiff's motion in limine seeks to exclude the 2011 photographs of DSU's campus taken by the State Defendants. The State Defendants took the photographs on October 18, 2011 at 6:19 p.m.: exactly three years and one minute past the recorded sunset time on the date when Plaintiff was injured. The State Defendants argue that these photographs are relevant because they tend to impeach the credibility of Plaintiff, who stated during his deposition that it was still light outside when he was walking around campus prior to entering the building where he was bitten on October 18, 2008. Plaintiff argues that the photographs are not relevant, should be excluded under D.R.E. 403 on grounds of confusing the jury, and that expert testimony on the effect of atmospheric conditions on how light it would be after sunset on October 18, 2008 is required.
By Order dated March 26, 2012, this Court denied an identical motion filed by Plaintiff, in which the parties raised nearly identical arguments to the ones raised now. This Court held that the photographs were relevant, with the caveat that extraneous details would need to be cropped out of the photos in order to address Plaintiff's concerns under Rule 403.
The Court will not consider Plaintiff's arguments because of the law of the case doctrine. The doctrine is "designed to prevent relitigation of prior claims and inconsistent judgments." The law of the case is established when "the Court applies a legal principal to an issue based on facts remaining constant over the course of litigation." In order to overcome the law of the case and have the court reconsider the earlier ruling, a party must demonstrate "newly discovered evidence, a change of law, or manifest injustice."
The Court's March 26, 2012 ruling became the law of the case when the Court denied Plaintiff's motion in limine and found the photographs to be relevant. Plaintiff now essentially seeks to renew his earlier motion in limine, but Plaintiff has failed to demonstrate any reason that would justify the Court's reconsideration of its earlier decision. Indeed, the State Defendants point out that the photographs have been cropped pursuant to the Court's 2012 decision, and Plaintiff notes that the parties are currently working together to craft a limiting instruction regarding the photographs. This Court will not backpedal on its earlier decision simply because Plaintiff continues to disagree with it. Because the law of the case doctrine bars relitigation of this Court's 2012 decision originally denying Plaintiff's motion in limine, Plaintiff's current motion in limine as to the photographs is DENIED.
Listing of Sunset Times
Plaintiffs' motion in limine also seeks to exclude evidence of the sunset times for October 18, 2008. Plaintiff essentially raises the same arguments as he does for the photographs. The State Defendants seek to introduce information from the National Oceanic and Atmospheric Administration on the sunset times for the date of the incident to controvert Plaintiff's deposition testimony that it was still light outside when he was walking around campus shortly before the incident with the K-9. The proffered evidence also includes information on the lack of precipitation for the date in question.
Such evidence has previously been found admissible by the D elaware Su pre me Court as evidence of the time of sunset and weather conditions. Further, as with the photographs, the sunset times for October 18, 2008 are relevant to impeaching Plaintiff's credibility. Plaintiff muddles the issue by insisting that atmospheric conditions could have affected the lighting outside even after sunset, and contends that because of this, expert testimony is needed. Expert testimony is required when it would be helpful to the jury in understanding something that is beyond the knowledge of an average lay juror. However, the average lay juror is well aware that it is typically dark outside after the sun sets. Thus, expert testimony is not required in this case. Plaintiff's motion in limine as to the time of sunset on October 18, 2008 is DENIED.
The Court shall now address the various evidentiary arguments raised by the parties in regards to various exhibits listed in the Pretrial Stipulation. While some of these issues will need to be resolved at trial, others can be disposed of now.
The State Defendants and DSU challenge one of Plaintiff's exhibits as a subsequent remedial measure. The exhibit in question is an e-mail dated October 2, 2009 sent by Captain Robert C. Hawkins, Jr. (hereinafter "Captain Hawkins") to various Delaware State Police (hereinafter "DSP") personnel. The e-mail describes assignments and schedules for the 2009 DSU homecoming–the same event at which Plaintiff was injured, but one year later. Plaintiff argues that the e-mail would only be used for impeachment purposes, if Captain Hawkins testifies on cross-examination that "it was not feasible to conduct a drug search in the manner described in the email."
D.R.E. 407 excludes evidence of subsequent remedial measures following an injury that, if taken, would have made the injury less likely to occur. Rule 407 provides an exception for evidence of subsequent remedial measures when the evidence is offered for another admissible purpose, including proving ...