Stehn v. Cody

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ISABEL VIKTORIA STEHN,
Plaintiff
v. Civil Action No. 11-1036 (CKK)
GREGORY CODY,
Defendant

MEMORANDUM OPINION
(November 20, 2014)

Upon reviewing the parties’ [31] Pretrial Statement, the Court requested additional

briefing from the parties as to several issues raised in the Pretrial Statement. See Mem. Opinion,

ECF No. [22]. Although the parties’ supplemental briefing was not styled as motions in limine,

the Court addresses those arguments as it would with respect to motions in limine given that the

briefing pertains to objections raised by the parties in the Pretrial Statement and to associated

evidentiary concerns. 1 The primary evidentiary issues addressed in this Memorandum Opinion

relate to (A) portions of Defendant’s deposition regarding his fine payment, (B) the police report

of the underlying incident, (C) Defendant’s answers and amended answers to interrogatories,

(D) the medical and hospital records of Plaintiff, and (E) video recordings portraying the

1
The Court’s analysis focuses on the following submissions: the parties’ Pretrial Statement, ECF
No. [31]; Def.’s Mem. in Supp. of Def’s Objection to Pl.’s Use of Video, ECF No. [33] (“Def.’s
Video Mem.”); Def.’s Mem. in Supp. of Objection to Pl.’s Identification of Exhibits Labeled
Answers to Interrogatories & Supp. Answers to Interrogatories of Def. as Evid., ECF No. [34]
(“Def’s Interrogatory Mem.”); Pl.’s Supp. Br. on Pretrial Statement, ECF No. [35] (“Pl.’s Supp.
Br.”); Def.’s Response in Opp’n to Pl.’s Supp. Br. on Pretrial Statement, ECF No. [38] (“Def.’s
Response”); Pl.’s Response to Def.’s Supp. Br. on Pretrial Statement, ECF No. [39] (“Pl.’s
Response”); and Pl.’s Reply to Def. Cody’s Response to Pl.’s Supp. Br. on Pretrial Statement,
ECF No. [40] (“Pl.’s Reply”). The Court also references Pl.’s Statement of Material Facts Not in
Genuine Dispute, ECF No. [21-3] (“Pl.’s Statement”), and Def.’s Statement of Material Facts in
Dispute, ECF No. [22] at 3-5 (“Def.’s Statement”)

1
intersection where the collision occurred. The Court provides this analysis in order to inform the

scheduled December 1, 2014, status hearing. At a later date, the Court will address the proposed

jury instructions, including the parties’ related arguments with respect to the doctrines of

negligence per se, contributory negligence, and last clear chance.

I. BACKGROUND
The factual allegations and legal claims at issue in this case are set forth fully in the

August 26, 2013, Memorandum Opinion denying Plaintiff’s motion for summary judgment. In

short, on June 11, 2008, at approximately 5:45 p.m., Plaintiff Isabel Stehn was crossing

Pennsylvania Avenue at the intersection of Pennsylvania Avenue and 19th Street in Northwest

Washington, D.C. Pl.’s Statement ¶ 1; Def.’s Statement ¶¶ 1-4. Plaintiff testified that she left the

northeast corner of the intersection when the pedestrian signal facing her began to display the

visual “Walk” signal. Pl.’s Statement ¶ 2. As Plaintiff proceeded southbound through the

crosswalk, she was struck by a car driven by Defendant, who was making a left turn onto

Pennsylvania Avenue during a green light. Pl.’s Statement ¶¶ 5, 13; see Pl.’s Statement Ex. B,

Ex. C. The parties dispute the precise timing of the crossing. See Def.’s Statement ¶ 16. After

Plaintiff was taken away in an ambulance, Defendant was ticketed at the scene of the accident by

a police officer for “Failure to Yield Right of Way to a Pedestrian.” Pl.’s Statement ¶¶ 8, 23-24.

Defendant ultimately paid the fine required by this ticket. Id. at ¶ 25-26.

On August 26, 2013, the Court denied Plaintiff’s [21] Motion for Summary Judgment on

the Issue of Liability. In a Memorandum Opinion issued that date, ECF No. [22], the Court

concluded that facts essential to a finding that Plaintiff was not contributorily negligent remained

in dispute. The Court denied plaintiff’s motion because Plaintiff’s contributory negligence is a

dispositive issue under the governing law of the District of Columbia. See Jarrett v. Woodward

2
Bros., Inc., 751 A.2d 972, 985 (D.C. 2000) (“The District of Columbia is one of the few

jurisdictions in which the claimant’s contributory negligence can act as a complete defense to the

defendant’s liability for negligence.”). The parties filed their Pretrial Statement on May 9, 2014, and

submitted additional briefing at the request of the Court on various evidentiary issues raised in the

Pretrial Statement. A pretrial conference is scheduled for December 1, 2014.

II. LEGAL STANDARD
The briefing with respect to the several evidentiary issues before the Court share the

purpose of motions in limine: to narrow the evidentiary issues at trial. The Federal Rules of

Evidence generally permit the admission of “relevant evidence”—i.e., evidence having “any

tendency” to make the existence of any fact of consequence more probable or less probable—

provided it is not otherwise excluded by the Rules, the Constitution, or an Act of Congress, and

its probative value is not “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 the

needless presentation of cumulative evidence. Fed. R. Evid. 401-403. In deference to their

familiarity with the details of the case and greater experience in evidentiary matters, district

courts are afforded broad discretion in rendering evidentiary rulings, a discretion which extends

to assessing the probative value of the proffered evidence and weighing any factors against

admissibility. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).

In light of the limited purpose of motions in limine, they “should not be used to resolve

factual disputes,” which remains the “function of a motion for summary judgment, with its

accompanying and crucial procedural safeguards.” C & E Servs., Inc. v. Ashland Inc., 539

F. Supp. 2d 316, 323 (D.D.C.2008). Rather, parties are charged with demonstrating why certain

categories of evidence should (or should not) be introduced at trial and directing the district court

3
to specific evidence in the record that would favor or disfavor the introduction of those particular

categories of evidence. See U.S. ex rel. El–Amin v. George Washington Univ., 533 F. Supp. 2d

12, 19 (D.D.C.2008). With these principles in mind, the Court turns to the evidentiary disputes

presented by the parties.

III. DISCUSSION
Although the Court takes this important opportunity to resolve the parties’ pretrial

evidentiary disputes, and certainly does not foresee a need to revisit the issues addressed herein,

the Court nonetheless recognizes that it cannot predict with absolute certainty how events will

unfold at trial. Accordingly, this Memorandum Opinion sets forth the Court’s analysis based

upon the record as it now stands and the arguments articulated by the parties in their respective

motions. As evidence is presented at trial, however, the parties may find it desirable to raise

again discrete evidentiary issues addressed here. To be clear, they are not absolutely foreclosed

from doing so. Where appropriate, a party wanting to revisit an evidentiary ruling should,

conspicuously, bring the matter to the Court’s attention and be prepared to summarize the

Court’s original ruling and explain why that ruling should be modified in light of new evidence

or a change in circumstances. However, the parties are cautioned that this is not an invitation to

recycle old arguments. With these caveats, the Court proceeds to the merits of the various

disputes.

A. Deposition Testimony with Respect to Ticket Payment
Plaintiff seeks to offer a portion of Defendant’s testimony in his deposition that pertains

to his statements regarding his payment of a fine resulting from the traffic ticket that he received

for failing to yield in the incident that is the subject of this lawsuit. In particular, Plaintiff seeks

to admit Defendant’s response to a line of questioning about whether any “points” were

4
associated with the ticket. In response, Defendant stated, “Well, once I paid the fine, that was the

end of the – that was admitting that, you know, I was at – the failure to yield.” Pretrial Statement

at 10. Defendant objects to the admission of this statement, arguing that it is unduly prejudicial

and that it is a backdoor attempt to offer evidence of the payment of the fine levied by the ticket

– even if that evidence would not be otherwise allowed. The Court notes that Plaintiff does not

seek to offer other evidence of the payment of the ticket.

In order to determine whether this deposition testimony is admissible, the Court must

answer two questions. First, is this statement barred by the prohibition on hearsay? See Fed. R.

Evid. 801. Second, even if the testimony is not barred by the hearsay prohibition, does the

testimony with respect to the payment of the fine run afoul of Federal Rule of Evidence 403? See

Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”) In particular, with respect to the second question, the Court must

consider whether the probative value of the testimony is substantially outweighed by the danger

of unfair prejudice, confusing the issues, or misleading the jury. Cf. Anthony v. Washington

Metro. Area Transit Auth., No. 04-cv-622, 2005 WL 5329518, at *3 (D.D.C. Dec. 19, 2005)

(“In balancing the probative value of that evidence against the potential unfair prejudice and

confusion or misleading nature of the evidence, as envisioned by the drafters of F.R.E. Rule 403,

the Court found that the probative value of Officer Griffin’s testimony regarding issuance and

payment of the citation was substantially outweighed by the danger of its unfair prejudice to the

Defendant and the risk of misleading the jury.”)

5
 The Court’s analysis of this question is informed by the D.C. Court of Appeals’

discussion of the effect of the payment of a traffic fine with respect to the admissibility of that

evidence. See Johnson v. Leuthongchak, 772 A.2d 249, 251 (D.C.2001). In Johnson v.

Leuthongchak, the D.C. Court of Appeals considered the admissibility of “evidence of [the

defendant’s] payment by mail of the civil fine for a traffic ticket, given for allegedly failing to

yield the right of way,” in a subsequent related negligence action. Id. at 250 (footnote omitted).

The D.C. Court of Appeals “follow[ed] the virtually unanimous holding of courts in this country

rejecting such evidence” as barred by the prohibition on hearsay. 2 Id.

In its opinion, the D.C. Court of Appeals started from the premise that “[g]uilty pleas are

generally admitted on the theory that they fall within the rule dealing with admissions by party-

opponents.” Id. at 250. See Fed. R. Evid. 801(a) (statements include conduct “intended as an

assertion”). The D.C. Court of Appeals recognized that, in the District of Columbia, the payment

of a traffic fine necessarily involves an admission of liability:

It is true that in the District of Columbia, a person receiving a traffic ticket
(formally termed a Notice of Infraction) must, by statute, respond in one of two
ways. The person may “admit, by payment of the civil fine, the commission of the
infraction” or “deny the commission of the infraction,” and payment of the fine
“shall be deemed a finding of liability.”

Leuthongchak, 772 A.2d at 251. However, the D.C. Court of Appeals also recognized, based on

real world experience, that the payment of a traffic fine does not actually imply a belief that one

is guilty of the ticketed offense:

2
The Court notes that, while the question before this Court today is governed by the Federal
Rules of Evidence rather than the substantive law of the District of Columbia, the District of
Columbia has “adopted the substance of Federal Rule of Evidence 801(d)(2) on ‘admission by
party-opponent.’ ” Leuthongchak, 772 A.2d. at 750. Accordingly, in addition to being a final
statement of local law with respect to the substantive liability question, the holding of the D.C.
Court of Appeals is persuasive on this particular evidentiary front as well.

6
 “[T]he mere remittance of payment in an effort to dispose of a traffic citation in
the least intrusive manner possible is not necessarily indicative of a defendant's
recognition of his or her own guilt . . . It is likely that even people who believe
themselves innocent often pay preset fines for the sake of convenience or
expediency rather than go to court and stand trial.”

Id. at 251 (quoting Briggeman v. Albert, 586 A.2d 15, 17 (Md. 1991)). The D.C. Court of

Appeals concluded that, even though the payment of the fine was, formally, a guilty plea, the

evidence of the payment was rightly excluded. See id. at 251-52. Moreover, even though the

appellate court only conducted an analysis with respect to Rule 801(d)(2), the appellate court

noted the possibility of prejudice resulting from the admission of this evidence. See id. In other

words, even if the law states that the payment of a fine necessarily involves the payor admitting

guilt, it does not mean that such a payor actually believes himself or herself guilty. Accordingly,

the admission of evidence of Defendant’s payment of the fine in this case—without more—

would certainly not be admissible. Although District of Columbia law specifies that Defendant’s

payment of the fine entailed an admission of guilt with respect to Defendant’s failure to yield, it

does not imply that the Defendant intended to communicate that he believed that he was, in fact,

guilty.

Here, Plaintiff seeks to admit something arguably different—deposition testimony about

the payment of a fine. However, the Court concludes ultimately that any arguable distinction is a

distinction without a difference, and this testimony is similarly inadmissible. Plaintiff seeks to

offer an excerpt from the deposition of Defendant in which Defendant testified with respect to

his payment of the fine for failing to yield. In particular, Plaintiff seeks to admit the response that

Defendant gave in the following exchange:

Q: But did you confirm that there no points for this particular citation?

A: Well, once I paid the fine, that was the end of the – that was admitting
that, you know, I was at – the failure to yield.

7
Plaintiff argues that this testimony differs from the evidence considered in Leuthongchak—as

well as analogous cases from other jurisdictions—because the Defendant here, Plaintiff argues,

admitted having violated the law through his words rather than simply by virtue of his actions in

paying a fine. 3

Plaintiff is correct that the fact that her attempt to offer deposition testimony requires a

variant on the legal analysis conducted by the D.C. Court of Appeals in Leuthongchak. Here, the

question of whether Defendant’s statement is barred by the prohibition against the admission of

hearsay all but disappears. The statement that Plaintiff seeks to offer is one “offered against an

opposing party” and “made by the party in an individual or representative capacity.” Fed. R.

Evid. 801(d)(2). Accordingly, this statement is not hearsay, see id., and it is admissible at trial

unless prohibited by another Rule of Evidence, see Fed. R. Civ. P. 32(a) (enumerating criteria for

use of deposition testimony at trial).

However, it remains for the Court to determine whether Defendant’s statement survives

the analysis required by Rule 403, balancing the probative value of testimony against the risk

that the testimony will generate unfair prejudice, confuse the issues, or mislead the jury. See Fed.

R. Evid. 403. In this context, Plaintiff argues that the statement is materially different than the

mere payment of a fine. This argument fails. In the District of Columbia, as recognized in

Leuthongchak, paying a fine entails that the person paying the fine “ ‘admit, by payment of the

civil fine, the commission of the infraction.’ ” Leuthongchak, 772 A.2d at 251 (quoting D.C.

Code § 40-615(a)). All that Defendant stated in the relevant portion of his deposition was the

3
As an initial matter, Plaintiff’s citation to Turner v. Silver, 587 P.2d 966 (N.M. Ct. App. 1978),
is entirely unavailing. The Court need not delve any further into New Mexico law dating to more
than thirty ago except to say that this opinion had no precedential weight in the first place. See
Southern Union Exploration Co. v. Wynn Exploration Co., 624 P.2d 536, 540 (N.M. 1981).

8
following: “once I paid the fine, that was the end of the – that was admitting that, you know, I

was at – the failure to yield.” Pretrial Statement at 13. In other words, Defendant stated that

paying the fine was equivalent to admitting he failed to yield, which was the subject of the ticket.

The problem with Plaintiff’s argument is that Defendant is correct: in the District of Columbia,

paying the fine was admitting that he failed to yield. But as the D.C. Court of Appeals

recognized, admitting that he failed to yield does not mean that he actually believed he failed to

yield. “ ‘It is likely that even people who believe themselves innocent often pay preset fines for

the sake of convenience or expediency rather than go to court and stand trial.’ ” Leuthongchak,

772 A.2d at 251 (quoting Briggeman v. Albert, 586 A.2d at 17).

Defendant’s deposition statement is substantively no different than the statement implied

in the payment of a fine. Accordingly, this statement does not survive Rule 403’s balancing

analysis. As explained above, the probative value is negligible—all the statement conveys is that

the payment of the ticket was tantamount to a legal admission of guilt, but does not suggest

anything about Defendant’s actual beliefs about his behavior or his actual guilt. The Defendant’s

own words do not suggest that he himself believed he was guilty of the underlying offense.

Insofar as there is any probative value in the oral statement that exceeds the statement implicit in

paying the ticket, it is outweighed by the risks of jury confusion and unfair prejudice. In

particular, the risk of confusion to the jury is high. Even if the legal context described here were

put before the jury and even with the caveats that the law would require, the admission of the

testimony would likely suggest to a jury that Defendant’s statement means that Defendant

actually believed that he had violated the law by failing to yield. Moreover, allowing Plaintiff to

offer Defendant’s statement creates a strong possibility of unfair prejudice to Defendant. Despite

the legal difference between liability with respect to the traffic violation and liability in this tort

9
action, jurors may misunderstand Defendant’s legal admission of guilt—even with caveats

attached to it—as tantamount to the admission of liability in this lawsuit. Cf. id. (noting concern

about “the excessive prejudicial effect of what [the Maryland Court] termed the ‘backdoor’

admission of police officer’s opinion of guilt” through evidence of payment of fine).

Accordingly, the Court concludes that the deposition testimony of the Defendant with

respect to Defendant’s statement regarding his payment of a traffic fine is not admissible.

B. Interrogatories
The parties’ dispute here centers on discrepancies between Defendant’s initial answers to

interrogatories and his subsequent amended answers to the interrogatories, particularly with

regard to Defendant’s visual disability and any associated restrictions on his driving. It appears

from the briefing that the parties dispute two matters: (1) whether the original answers are

inadmissible because they were subsequently amended and (2) whether Plaintiff should be

required to offer any supplemental answer together with the associated original answer pursuant

to the “Rule of Completeness,” as codified in Federal Rule of Evidence 106.

With respect to the first question, Defendant provides no justification for keeping the

original answers from the jury. Defendant only offers excuses why he could not provide

justifications at the time of the filing. See Def’s [34] Interrogatory Mem. at 1-2. The Court is

unconvinced. A limited number of answers were amended, and this dispute clearly centers on

those amendments that pertain to Defendant’s visual disability and associated driving

restrictions. There is no reason that Defendant could not have responded adequately as required

by this Court’s previous order. Moreover, the Court is not aware of any authority that would

prevent Plaintiff from offering the original answer, even if it were subsequently amended. The

10
Court concludes that both the original and the supplemental answers to the interrogatories are

admissible.

With respect to the second question, the Court agrees with Defendant that, if plaintiff

seeks to offer the original answers, the Rule of Completeness requires Plaintiff to offer the

supplemental answers as well. See Mangual v. Prudential Lines, Inc., 53 F.R.D. 301, 303

(E.D.Pa. 1971) (“[I]f the original answer is offered into evidence by the plaintiff, the amended

answer must be offered into evidence at the same time if defendant so requires.”); Alexander v.

Del Monte Corp., No. 09-12303, 2011 WL 91968, at *2 (E.D. Mich. Jan. 11, 2011); see also

Fed. R. Evid. 106 (“If a party introduces all or part of a writing or recorded statement, an adverse

party may require the introduction, at that time, of any other part—or any other writing or

recorded statement—that in fairness ought to be considered at the same time.”). Moreover, this

result comports with the provision of the Federal Rules of Civil Procedure allowing answers to

be amended in the first place. See Fed. R. Civ. P. 26(e)(1) (“A party who has made a disclosure

. . . must supplement or correct its disclosure or response . . . in a timely manner if the party

learns that in some material respect the disclosure or response is incomplete or incorrect.”); cf.

Mangual, 53 F.R.D. at 303 (“[I]t would seem that the amended answer must also be admissible

in this situation if the purposes of amendments are not to be frustrated.”).

C. Police Report
In order to determine the admissibility of the police report, the Court must determine

whether the document itself is admissible and, then, whether the information on that report is

admissible for the purposes sought by Plaintiff, who seeks to offer the report. 4 Importantly,

4
The Court notes that, while Plaintiff cites various cases from the District of Columbia Court of
Appeals with regard to the hearsay implications of offering a police report into evidence, the

11
Defendant acknowledges that at least portions of the police report are admissible. See, e.g.,

Def.’s Response at 1 (factual observations admissible).

As an initial matter, the authenticity of the police report is not in question. Pursuant to

Local Civil Rule 16.5(b)(6), “Exhibits will be presumed to be authentic unless objection to their

authenticity is made at or before the final Pretrial Conference and the objection is sustained.”

Plaintiff included the report in the Pretrial Statement as one of her exhibits. Pretrial Statement at

8. Defendant objected to it, but only “to the admissibility of the police report as the officer was

not a witness, it contains hearsay, and is not subject to admissible hearsay exceptions.” Id. at 9.

Notably, Defendant did not object to the authenticity of the report itself. Moreover, after Plaintiff

responded to Defendant’s objection in subsequent briefing requested by the Court, see Pl.’s

Supp. Br. at 3-5, Defendant further narrowed his objections in his subsequent response, see

Def.’s Response at 1-2. In particular, Defendant now concedes that certain portions of the report

are, in fact, admissible, including factual observations of the police officer. See id. at 1. Because

Defendant has forfeited any objections to authenticity, the Court concludes that no further

authentication is required at trial.

Given that the report is presumed to be authentic, Plaintiff is correct that the document

itself is admissible pursuant to the “business records exception” to the hearsay rule. Pursuant to

Federal Rule of Evidence 803(6), “Records of a Regularly Conducted Activity” are admissible if

they meet certain conditions specified in the Rule. Importantly, Defendant does not argue that

there is any concern with the trustworthiness of the report itself, nor is any such concern apparent

on the face of the evidence that Plaintiff seeks to present. See Fed. R. Evid. 803(6)(E) (records

Federal Rules of Evidence determine the evidence that can be admitted at trial—even though
District of Columbia substantive law governs this dispute.

12
admissible only if “neither the source of information nor the method or circumstances of

preparation indicate a lack of trustworthiness”). Indeed, as mentioned above, Defendant agrees

that at least portions of the report are admissible. See, e.g., Def.’s Response at 1.

However, the parties still disagree about which portions of the report are admissible. The

Court first enumerates those portions of the report that both agree are admissible and those

portions that both agree are inadmissible (or Plaintiff does not seek to admit); the Court

subsequently analyzes the disputed elements. The parties agree that the following items are

admissible:

• Certain factual findings based on observations of police officer, including time of arrival,
identification of the parties, weather conditions, and the date of the report.
• Identification of witnesses that testify at trial.

Alternatively, the parties also agree that the report could be used to refresh the testifying officer’s

recollection as to information within the report that reflects the knowledge of the officer at the

time of the report. See Fed. R. Evid. 803(5). The parties also agree that the following information

is inadmissible:

• The section noting “Police Action,” and indicating that Defendant was charged with “Fail
to Yield Right of Way to Pedestrian.”
• Certain information from the narrative, discussed further below.
• The diagram of the incident: because “the present version of the crash diagram is not
clear enough to read,” Plaintiff agrees that it should be redacted.

Were the Plaintiff to obtain a copy of the report that includes a legible version of the diagram,

the Plaintiff must expeditiously inform both the Court and Defendant and must demonstrate that

the diagram itself would not be barred as hearsay given that no police officer observed the

collision occur.

With respect to the Detailed Narrative, Plaintiff argues that a portion of it should be

admitted while Defendant argues that none of the narrative is admissible. The Court concludes

13
that, based on the proposed exhibit before the Court, none of the narrative is admissible. The

following is the entire text insofar as it is legible on the copy of the report available:

D1 was traveling through the intersection at 19th St. and Pennsylvania Ave NW,
from 19th Street, Southbound. P1 was [omitted] the crosswalk in the 1800 block
of Pennsylvania Ave near the intersection at 19th St. NW. D1 turned left (E/B)
onto the [omitted] Pennsylvania Ave NW, into the crosswalk and struck P1. P1
complained of injury to her right hip, right ankle, and [illegible] [omitted]
transported by DCFD to Amb#[illegible] to the GW University Hospital. D1 did
not have the right of D1 did not have the right of way to turn left while pedestr[]
[omitted] crosswalk. P1 had the right of way per the marked crosswalk and the
“Walk, Don’t Walk” signal device. D1 was issue a [omitted] right of way to
pedestrian.

See Notice on Police Report Exhibit, ECF No. [41], Ex. at 2 (“Police Report”). The Court notes

that the text on the right margin of the report appears to be cut off and that certain words are

illegible.

Plaintiff agrees that first two sentences, describing the incident, are inadmissible, unless

the officer testifies to personal knowledge of the incident. See Pl.’s Supp. Br. at 4 (bullet no. 5).

Because the parties agree that the reporting officer did not personally observe the incident, the

Court agrees that these sentences must be redacted.

Plaintiff argues that the next portion of the narrative is admissible, beginning with the

statement that “P1 [Plaintiff] complained of injury to her right hip, right ankle and [illegible.]”

See id.; Police Report at 2. The end of the sentence describing Plaintiff’s injuries is both illegible

and cut off. While Plaintiff argues that this “does not appear to be hearsay,” she does not provide

any justification for this conclusion. This statement can only be admissible in the first place if the

officer testifies to having heard Plaintiff’s complaint of her injury, and the report does not

explicitly say that Plaintiff complained to the officer directly about these medical symptoms.

Furthermore, in order for this statement to be admissible, Plaintiff must point to one of the

hearsay exceptions that would allow her underlying statement to be admitted, which she has not

14
done. Moreover, because a portion of the narrative appears to be cut off, the jury would be left

examining a mere sentence fragment in the midst of the narrative. Without a more complete

copy, the Court concludes that this fragment fails the balancing test of Rule 403. The police

report would have negligible probative value because the officer’s testimony, together with the

testimony of the treating medical professionals, could replicate anything that the jury could glean

from this fragment. See Fed. R. Evid. 403. At minimum, admitting this portion of the narrative

would be confusing to the jury. Moreover, even in Plaintiff’s view, the jury would be faced with

a significantly redacted narrative. Asking the jury to fill in missing words in this statement could

easily engender needless and possibly prejudicial speculation by the jury about the redacted

portions. In other words, the Court concludes that that the negligible probative value of this

testimony is “substantially outweighed” by a danger of confusing the jury, possible prejudice,

and needlessly presenting cumulative evidence, and therefore it is excluded. Id.

Similarly, Plaintiff seeks to admit the subsequent statement: “transported by DCFD to

Amb#[illegible] to the GW University Hospital.” Police Report at 2. Defendant objects to the

inclusion of any of the narrative, as hearsay. See Def.’s Response at 1-2. Like the statement

referencing Plaintiff’s injuries, this statement is also a sentence fragment that is not intelligible

without inferring what might have been written in the gaps in the exhibit before the Court. If the

police officer testified to personally observing this transport, this statement would not be barred

by the hearsay rule; however, it would still fail Rule 403’s balancing test for similar reasons as

the preceding statement in the narrative, which pertains to Plaintiff’s injuries. See Fed. R. Evid.

403. Putting this narrative before the jury would require them to fill in the gaps and would

needlessly increase the danger of the jury speculating about what was contained in the redacted

text. As with the statement describing Plaintiff’s injuries, the officer could testify directly as to

15
the transport, rather than relying on the police report. It also does not appear that Plaintiff being

transported by an ambulance is factually disputed. Thus, the negligible probative value of this

partial statement is substantially outweighed by the risk of confusing the jury and unfair

prejudice. This statement, too, is excluded.

Finally, Plaintiff implicitly agrees that the final two sentences should be redacted. See

Pl.’s Supp. Br. at 4. Since Plaintiff agrees that the “Police Action” section of the report must be

redacted, it is similarly necessary to redact the portion of the narrative that appears to present the

officer’s legal conclusion that Defendant violated the traffic laws and reports the officer’s

issuance of a ticket to Defendant. Insofar as some of this information may not be barred by the

hearsay rule, it is far more prejudicial than probative and is inadmissible pursuant to the

balancing test of Rule 403. See Fed. R. Evid. 403. This conclusion is consistent with the Court’s

conclusion, discussed above, that the deposition testimony regarding Defendant’s payment of the

ticket is inadmissible.

To summarize, the following sections of the police report must be redacted before the

report can be admitted:

• Police Action
• Crash Diagram
• Detailed Narrative

Accordingly, the parties shall jointly redact the police report in accordance with these

conclusions and shall bring the accordingly redacted report to the December 1, 2014, status

hearing. The Court notes that, for the sections that must be redacted in full, the names of those

sections must be redacted as well.

16
 D. Plaintiff’s Medical and Hospital Records
The additional briefing requested by the Court has substantially clarified the parties’

intended uses of Plaintiff’s medical and hospital records. First, the Court’s understanding is that

Plaintiff does not intend to offer the medical or hospital records for substantive evidence. See

Pl.’s Supp. Br. at 5. Instead, Plaintiff only intends to offer the records on re-direct insofar as

Defendant attempts to use them for impeachment purposes on cross-examination. See id. Second,

it is the Court’s understanding that Defendant only intends to use the medical and hospital

records during cross-examination for impeachment purposes – not as substantive evidence. See

Def.’s Response at 2. There is no dispute that Defendant may use these records for impeachment

purposes, assuming that they are within the scope of proper cross-examination. Moreover, it

appears that there is no dispute that Plaintiff may use those and additional records, on re-direct,

to rebut Defendant’s attempts at impeachment. Plaintiff may use additional records to put the

records offered by Defendant into context, as Plaintiff seeks, as long as Plaintiff confines her

usage of these materials to the proper scope of re-direct examination with regards to

impeachment.

At the December 1, 2014, status hearing the parties should be prepared to confirm that

this analysis accurately reflects their positions or to clarify their positions as necessary. The

parties should bring the medical records in question to the hearing in order to be fully prepared

for that discussion.

E. Video Recordings
Plaintiff proposes to display video footage of the traffic signals and the intersection

where the collision occurred. Although the Court addresses the videos here, the Court first notes

that it expects this question will require additional discussion at the December 1, 2014, status

17
hearing. The Court is in possession of two videos delivered during the summary judgment

briefing. The first, filename VIDEO0019.3GP, is a 49 second video that shows a view across

Pennsylvania Avenue towards a pedestrian signal at the intersection in question. The second,

filename IMG_0973 Stehn.mov, is a 24 second video that shows a pedestrian signal and traffic

light, but only a minimal view of the intersection. Both videos show all three phases of the

pedestrian signal: a flashing person (in white), accompanied by a countdown timer; a flashing

orange hand, accompanied by the continuation of the countdown timer; and a steady orange hand

(without a timer). It appears that both videos were taken around February, 2012, see Pl.’s

Response at 5 n.4, approximately three-and-a-half years after the underlying incident.

The parties note – and do not dispute – one key discrepancy between the signal at the

time of the incident and both videos. At the time of the incident, the signal featured a flashing

orange person, while at the time of the video the signal featured a flashing orange hand. The

parties agree that meanings of these two visual representations are the same. See Pl.’s Supp. Br at

6-7. Videotape evidence is categorized as photographic evidence under Federal Rule of Evidence

1001(2). “Photographs are admissible ‘even when they contain points of difference between the

time of taking and the time of the accident or injury, provided such differences are disclosed by

the testimony and made clear to the jury.’ ” Rogers v. Ingersoll-Rand Co., 971 F. Supp. 4, 14-15

(D.D.C. 1997) aff’d, 144 F.3d 841 (D.C. Cir. 1998) (citations omitted). Accordingly, if this

difference is explained to the jury, the hand-person discrepancy need not bar the admission of

this evidence on its own.

The Court now addresses the two videos in turn. The first video, which shows a broader

view of the intersection together with the pedestrian signal, presents two serious difficulties.

First, it appears to the Court that this video looks across the intersection from the southeast

18
corner to the northeast corner even though Plaintiff was walking in the opposite direction

(southbound). In other words, the video shows a view of a pedestrian signal that is not the same

as the one that governed Plaintiff’s movement or that Defendant would have seen. Even if the

video was offered to show that the relevant signal in this dispute operated in the same fashion as

the signal captured in the video, it is highly misleading to show a signal that does not represent

what either party saw. Second, the video shows the movement of traffic through the intersection,

but Plaintiff does not and cannot represent that the traffic flows were the same during the

incident as in the video. Indeed, there is specific testimony from the Defendant that there were

two cars in front of him also turning, which are not represented as such in the video. Cf. United

States v. Lawson, 494 F.3d 1046, 1052 (D.C. Cir. 2007) (“According to the testimony of

Wallace—the only witness at trial with knowledge of the scene—the photographs did not

accurately reflect what he saw.”). Perhaps unintentionally, the positioning of the camera and the

resulting scope of the video is likely to focus the attention of the viewer on the flow of traffic,

which occupies a significant portion of the field of view shown in the video, creating the risk that

the jury would draw potentially misleading conclusions regarding the traffic at the time of the

collision. Accordingly, because the Court concludes that this video does not fairly and accurately

represent the intersection as the parties faced it in 2008 and that it runs the risk of misleading and

confusing the jury, this video is inadmissible. Moreover, a diagram of the intersection to show

the lanes and the positioning of the parties can be used with the “Elmo,” and the witness can

mark such an exhibit while testifying.

The second video, which focuses on a pedestrian signal and a traffic light, does not

present either of the two serious problems of the previous video. First, this video appears to

portray only the set of signals facing both Plaintiff and Defendant: the pedestrian signal that

19
governed Plaintiff’s movement across the street and the traffic light that governed Defendant’s

left turn through the intersection. In addition, because this video “zooms in” on the lights

themselves, it does not focus the viewer’s attention on the movement of traffic—even though the

flows at the time of the video would have been different from those at the time of the incident.

Although some cars are visible in this video, they appear ancillary rather than central to the scene

that the video captures. That said, it is unclear to the Court whether this signal operated in the

same way as the signal in place at the time of the incident, and it is not clear what the probative

value of this video is in any event. With these considerations in mind, the Court will discuss this

video at the December 1, 2014, status hearing. As a final note, the video is “sideways” – rotated

90 degrees from the appropriate orientation. Although it possible to evaluate the video in its

current state, it is the Plaintiff’s obligation to provide a copy of the video in the correct

orientation such that the Court can evaluate it fully and such that it can be shown effectively at

trial. Plaintiff shall provide the Court with a copy of the video oriented vertically as expeditiously

as possible, but no later than the December 1, 2014, status hearing.

Lastly, it is unclear to the Court whether the parties intend to use any other demonstrative

evidence at trial. At the December 1, 2014, status hearing, the parties should be prepared to

discuss whether they intend to use other demonstratives and whether they object to the other

party’s use of such demonstratives, if any.

IV. CONCLUSION
In summary, for the foregoing reasons, the Court has arrived at the following conclusions

with respect to the evidence considered here:

20
 • The deposition colloquy regarding Defendant’s payment of the fine is inadmissible.
• With respect to the interrogatories, both Defendant’s initial answers and Defendant’s
amended answers to the interrogatories are admissible. The Rule of Completeness
requires offering the amended answers together with the initial answers.
• With respect to the police report, the Court concludes that, based on the report currently
before the court, the “Police Action,” “Crash Diagram,” and “Detailed Narrative”
sections must all be redacted.
• With respect to the medical and hospital records, Defendant may use them for
impeachment purposes, and Plaintiff may use them to rebut Defendant’s attempts at
impeachment – as described in more detail above.
• With the respect to the video recordings, the video of the traffic signal and the pedestrian
signal will require further discussion at the December 1 status hearing. The video
showing the pedestrian signal with a wide view of the intersection is inadmissible.

The Court expects the parties to come to the December 1, 2014, status hearing prepared to

discuss these matters and prepared with the materials that the Court requests above.

Dated: November 20, 2014 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

21