This is Janie McFarland’s Brief in Opposition of defendant’s motion in limine re: excluding proposed evidence and testimony, re: medical treatment, conditions and diagnosis regarding the bed bug lawsuit filed against Chaxu, Inc, doing business as Charlottesville Super 8 Motel. Doc#61
COMES NOW Plaintiff, Janie McFarland, Pro Se and respectfully submits this brief in opposition to Defendant’s Motion in Limine specifically regarding “exclusion of proposed evidence and testimony” as well as “medical treatment, conditions, and diagnosis” and moves that the Court deny Defendant’s motion in limine for reasons and particulars respectfully stated as follows:
1. Expert testimony is not a required element to establish that Defendant”s negligence and breach of duty are proximate cause of Plaintiffs injuries.
2. The medical records to be presented by Plaintiff are admissible because they are evidence as to the existence of Plaintiff seeking medical attention and receiving treatment. Furthermore the medical records fall within the exemptions to the rule again hearsay as provided in Rule 803 of the Federal Rules of Evidence. As such, exhibits presented in this fashion need not be supported by expert testimony.
3. The testimony and evidence to be presented by Plaintiff attest directly to the fact that an event took place that resulted in injury to Plaintiff, that medical treatment was sought to address these injuries, and that medical treatment was provided. Pursuant to Rule 701 of the Federal Rules of Evidence, Plaintiff may testify as a lay witness as to her condition, experience, and other events surrounding the claim, and such testimony and evidence can be based on her personal knowledge, perception, and experience.
STATEMENT OF FACTS
The following is a statement of the material undisputed facts regarding Defendant’s Motion in Limine:
On the night of September 13, 2014 Plaintiff, Janie McFarland free of any bites, marks, or other symptoms went to sleep in room 107 of the Charlottesville Super 8 Motel. On September 14, 2014 she rose to find more than 45 bedbug bites on various parts of her body, as well as bedbugs on the bed itself. Plaintiff documented these events by taking pictures and video of the bites and the bed, in addition to providing the manager of duty Desiree Scott a dead bedbug wrapped in tissue. Following the incident Plaintiff went to see her physician, Dr. Berberian, on the 15th and 16th of September 2014. In addition to the bedbug bites, Plaintiff experienced sever swelling in her left leg for which she sought treatment on multiple occasions at the VA Medical Center. The photographs and video of the incident, as well as records from the visits (which include notations regarding the reason for the visits) to Dr. Berberian, and the VA Medical Center have been submitted to Defendant and to the Court evidencing the fact that an injury was sustained and medical attention sought.
I. There is no need on the Part of Plaintiff to designate an expert witness because Plaintiff’s testimony and evidence attest to the fact that the events in question did take place, and as such do not require specialized, scientific, or medical knowledge.
Pursuant to Federal Rules of Evidence 701 “if a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical; or other specialized knowledge within the scope of Rule 702.”. The facts in issue are
i) whether or not Plaintiff was bitten by bedbugs while sleeping in Defendant’s hotel; and
ii) is Defendant’s negligence and breach of duty the proximate cause of Plaintiff’s injuries.
The testimony and evidence to be presented by Plaintiff regarding these facts do not require specialized knowledge and fall within scope of what can be presented by Plaintiff as a witness who is a layperson.
II. The medical records listed in Plaintiff’s Exhibit List meet the test for relevance pursuant to Federal Rules of Evidence 401. Furthermore, the evidence to be submitted by Plaintiff’s satisfy authenticity requirements pursuant to Federal Rules of Evidence 901 and 902.
As a result of being bitten by bedbugs Plaintiff experienced swelling in various part of her body including her left foot. For issues specifically related to swelling in her foot Plaintiff sought medical attention from the VA Medical center. According to Federal Rules of Evidence 401 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” The record of these visits are relevant because they document the fact that Plaintiff did indeed go to the VA Medial Center and include a notation that the visits were prompted by swelling resulting from the bedbug bites.
Pursuant to Federal Rules of Evidence 90I(b)(4) evidence having distinctive characteristics such as “The appearance, contents, internal patterns, or other distinctive characteristics of the item, taken together with the circumstances” is able to satisfy the requirement of authenticity. The evidence to be presented by Plaintiff include time stamps, electronic signatures, location of where it was printed and other distinct characteristics which fall into the qualifications provided in Fed. R. Evid 901. In addition, according Federal Rules of Evidence 902(8) evidence is self-authenticating if is “accompanied by a certificate of acknowledgment that is lawfully executed by a notary or another public officer who is authorized to take acknowledgments.
When submitting her medical records in response to Defendant’s First Request for Production of Documents, the submission included and acknowledgment by Plaintiff lawfully executed by a notary.
The Defendant assets that the testimony and evidence to be presented by Plaintiff is irrelevant, hearsay, not authenticated, and requires designation of an expert witness, however according to Federal Rules of Evidence, specifically rules 401, 701, 803, 901 and 902 the proposed evidence and testimony to be presented by Plaintiff meets all requirements and exceptions as provided by Federal Rules of Evidence and the Court.
In light of this, Plaintiff respectfully requests that the Court deny Defendant’s motion in limine.
Dated: May 24, 2016
Janie McFarland, pro se
36 Genova Court
Farmingdale NY 11735