Bazazi v. Michaud CV-93-70-SD 01/09/95 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Kambiz Bazazi
v. Civil No. 93-70-SD
Leo Michaud, et al
O R D E R
This order addresses the issues raised by certain pending
pretrial motions.
1. Defendant's Motion In Limine to Exclude Evidence of Prior
Injuries, document 34
Plaintiff was injured while sparring with another student in
a martial arts class at which defendant Michaud was the
instructor.1 Apparently, on two prior occasions when Michaud
himself engaged in contact with a student, such student sustained
injuries. Accordingly, defendant moves to exclude evidence of
such injuries, and plaintiff objects. Document 42.
These dissimilar prior incidents do not, as plaintiff
1The other participant, James Shortridge, was originally added as a party defendant to this litigation. Subseguently, however, the plaintiff voluntarily dismissed the action against Shortridge pursuant to Rule 41(a)(1), Fed. R. Civ. P. suggests, serve to support the plaintiff's claims against
defendant Michaud in the defendant's capacity as an instructor.
Finding that admissibility of such irrelevant evidence. Rule 401,
Fed. R. Evid., combined with the fact that its probative value is
substantially outweighed by the danger of unfair prejudice and
confusion of the issue. Rule 403, Fed. R. Evid., the court grants
the defendant's motion. There is to be no reference to these
prior incidents of injury in the trial of this litigation.
2. Defendant's Motion In Limine to Exclude Testimony of Dr.
Weiss, document 35
Dr. Martin Weiss is a medical witness for plaintiff.
Although he has apparently been deposed, defendant Michaud,
citing to his expert disclosure letter, moves to bar testimony
concerning the effect of future trauma on the plaintiff's
existing injuries. Plaintiff objects. Document 41.
New Hampshire law makes it clear that, while a defendant may
rebut a plaintiff's medical evidence by introducing evidence of
"possibilities", plaintiff's medical evidence must be couched in
terms of "probabilities". Appeal of Stetson, 138 N.H. 293, 297,
639 A.2d 245, 248 (1994); Tzimas v. Coiffures by Michael, 135
N.H. 498, 501, 606 A.2d 1082, 1084 (1992); Wilder v. Eberhart,
977 F.2d 673, 676 (1992), cert, denied, ___ U.S. , 113 S. C t .
2 2396 (1993). Accordingly, if the videotaped testimony of Dr.
Weiss is not framed in terms of probabilities, it will not serve
to carry the plaintiff's burden of proving the causative effect
of future trauma on plaintiff's existing injuries. Otherwise
put, if in fact the videotape deposition testimony couches such
causation in terms of "could", the testimony will not be
admitted.
Plaintiff suggests, however, that even if the testimony is
not admissible to prove the effect of future trauma on existing
injuries, it would be admissible to show the reasonableness of
plaintiff's fear of increased risk of blindness and other
injuries of the eye. Plaintiff posits this theory on a federal
case which applied the law of Tennessee. Sterling v. Velsicol
Chem. Corp., 855 F.2d 1188 (6th Cir. 1988).
In New Hampshire, however, one may not recover damages for
emotional distress absent proof that a physical injury resulted
therefrom. Thorpe v. State, 133 N.H. 299, 304, 575 A.2d 351,
353-54 (1990). This in turn reguires proof grounded on
probabilities. Id.
As the court has not yet been furnished the transcript of
the videotape deposition of Dr. Weiss, it must at this juncture
defer authoritative ruling on the defendant's motion. If,
however, the testimony of Dr. Weiss is framed in terms of
3 "could", the court will direct its excision from the tape shown
to the jury, and such evidence will not be presented. If, on the
other hand, the tape is couched in terms of probabilities, then
it will be admissible, and the jury will be allowed to receive
such testimony.
3. Defendant's Motion In Limine to Exclude Testimony of Steven
D. Warren, document 36
Steven D. Warren is plaintiff's martial arts expert. He has
apparently been trained in a different specialty of martial arts
than that practiced by the defendant Michaud. Defendant
accordingly challenges his credentials to express an opinion with
respect to the negligence of defendant Michaud. Plaintiff
objects. Document 43.
The "gatekeeper" duties assigned to federal trial judges in
Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. , ,
113 S. C t . 2786, 2795 (1993), reguire the judge to ensure "that
an expert's testimony both rests on a reliable foundation and is
relevant to the task at hand." Id., 113 S. C t . at 2799.
Otherwise put, the judge determines "whether it is reasonably
likely that the expert possesses specialized knowledge which will
assist the trier better to understand a fact in issue." United
States v. Sepulveda, 15 F.2d 1161, 1183 (1st Cir. 1993), cert.
4 denied, ___ U.S. ___ , 114 S. C t . 2714 (1994).
The initial focus of the dispute as delineated in deposition
excerpts attached to the presentations of each party is to the
effect that Mr. Warren is trained in "Shotokan Karate", while
defendant Michaud is trained in "Kempo". Moreover, on two
occasions, Warren admitted that he was not an expert in Kempo.
Deposition of Steven D. Warren at 20, 24.
Arrayed against such admissions are more than 18 years'
experience in martial arts instruction and considerable
experience in serving as a referee of martial arts contests. It
further appears that the defendant Michaud agrees that Kempo is
not a single martial arts form, but a composite of many others.
Defendant's Exhibit B at 40, 46, and as Warren has had at least
eight hours of observing Kempo matches, Warren Deposition at 80,
81, the court finds and rules he is gualified to testify as to
the safety with which the sparring match here at issue was
conducted. International Adhesive Coating Co. v. Bolton Emerson
Int'1, Inc., 851 F.2d 540, 544-45 (1st Cir. 1988).
Analysis of Warren's testimony as to the so-called "fight or
flight" response leads the court to rule, however, that he is not
gualified to testify as to the brain reaction necessarily
involved therein. Warren's college studies, Warren Deposition at
43, 44, even combined with his martial arts training, id. at 45,
5 do not, the court finds, empower him to express an opinion with
respect to what is essentially a medical question.
Accordingly, the defendant's motion is granted as to
exclusion of any testimony with respect to the "fight or flight"
response, but in all other respects the motion is herewith
denied.
4.
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Bazazi v. Michaud CV-93-70-SD 01/09/95 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Kambiz Bazazi
v. Civil No. 93-70-SD
Leo Michaud, et al
O R D E R
This order addresses the issues raised by certain pending
pretrial motions.
1. Defendant's Motion In Limine to Exclude Evidence of Prior
Injuries, document 34
Plaintiff was injured while sparring with another student in
a martial arts class at which defendant Michaud was the
instructor.1 Apparently, on two prior occasions when Michaud
himself engaged in contact with a student, such student sustained
injuries. Accordingly, defendant moves to exclude evidence of
such injuries, and plaintiff objects. Document 42.
These dissimilar prior incidents do not, as plaintiff
1The other participant, James Shortridge, was originally added as a party defendant to this litigation. Subseguently, however, the plaintiff voluntarily dismissed the action against Shortridge pursuant to Rule 41(a)(1), Fed. R. Civ. P. suggests, serve to support the plaintiff's claims against
defendant Michaud in the defendant's capacity as an instructor.
Finding that admissibility of such irrelevant evidence. Rule 401,
Fed. R. Evid., combined with the fact that its probative value is
substantially outweighed by the danger of unfair prejudice and
confusion of the issue. Rule 403, Fed. R. Evid., the court grants
the defendant's motion. There is to be no reference to these
prior incidents of injury in the trial of this litigation.
2. Defendant's Motion In Limine to Exclude Testimony of Dr.
Weiss, document 35
Dr. Martin Weiss is a medical witness for plaintiff.
Although he has apparently been deposed, defendant Michaud,
citing to his expert disclosure letter, moves to bar testimony
concerning the effect of future trauma on the plaintiff's
existing injuries. Plaintiff objects. Document 41.
New Hampshire law makes it clear that, while a defendant may
rebut a plaintiff's medical evidence by introducing evidence of
"possibilities", plaintiff's medical evidence must be couched in
terms of "probabilities". Appeal of Stetson, 138 N.H. 293, 297,
639 A.2d 245, 248 (1994); Tzimas v. Coiffures by Michael, 135
N.H. 498, 501, 606 A.2d 1082, 1084 (1992); Wilder v. Eberhart,
977 F.2d 673, 676 (1992), cert, denied, ___ U.S. , 113 S. C t .
2 2396 (1993). Accordingly, if the videotaped testimony of Dr.
Weiss is not framed in terms of probabilities, it will not serve
to carry the plaintiff's burden of proving the causative effect
of future trauma on plaintiff's existing injuries. Otherwise
put, if in fact the videotape deposition testimony couches such
causation in terms of "could", the testimony will not be
admitted.
Plaintiff suggests, however, that even if the testimony is
not admissible to prove the effect of future trauma on existing
injuries, it would be admissible to show the reasonableness of
plaintiff's fear of increased risk of blindness and other
injuries of the eye. Plaintiff posits this theory on a federal
case which applied the law of Tennessee. Sterling v. Velsicol
Chem. Corp., 855 F.2d 1188 (6th Cir. 1988).
In New Hampshire, however, one may not recover damages for
emotional distress absent proof that a physical injury resulted
therefrom. Thorpe v. State, 133 N.H. 299, 304, 575 A.2d 351,
353-54 (1990). This in turn reguires proof grounded on
probabilities. Id.
As the court has not yet been furnished the transcript of
the videotape deposition of Dr. Weiss, it must at this juncture
defer authoritative ruling on the defendant's motion. If,
however, the testimony of Dr. Weiss is framed in terms of
3 "could", the court will direct its excision from the tape shown
to the jury, and such evidence will not be presented. If, on the
other hand, the tape is couched in terms of probabilities, then
it will be admissible, and the jury will be allowed to receive
such testimony.
3. Defendant's Motion In Limine to Exclude Testimony of Steven
D. Warren, document 36
Steven D. Warren is plaintiff's martial arts expert. He has
apparently been trained in a different specialty of martial arts
than that practiced by the defendant Michaud. Defendant
accordingly challenges his credentials to express an opinion with
respect to the negligence of defendant Michaud. Plaintiff
objects. Document 43.
The "gatekeeper" duties assigned to federal trial judges in
Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. , ,
113 S. C t . 2786, 2795 (1993), reguire the judge to ensure "that
an expert's testimony both rests on a reliable foundation and is
relevant to the task at hand." Id., 113 S. C t . at 2799.
Otherwise put, the judge determines "whether it is reasonably
likely that the expert possesses specialized knowledge which will
assist the trier better to understand a fact in issue." United
States v. Sepulveda, 15 F.2d 1161, 1183 (1st Cir. 1993), cert.
4 denied, ___ U.S. ___ , 114 S. C t . 2714 (1994).
The initial focus of the dispute as delineated in deposition
excerpts attached to the presentations of each party is to the
effect that Mr. Warren is trained in "Shotokan Karate", while
defendant Michaud is trained in "Kempo". Moreover, on two
occasions, Warren admitted that he was not an expert in Kempo.
Deposition of Steven D. Warren at 20, 24.
Arrayed against such admissions are more than 18 years'
experience in martial arts instruction and considerable
experience in serving as a referee of martial arts contests. It
further appears that the defendant Michaud agrees that Kempo is
not a single martial arts form, but a composite of many others.
Defendant's Exhibit B at 40, 46, and as Warren has had at least
eight hours of observing Kempo matches, Warren Deposition at 80,
81, the court finds and rules he is gualified to testify as to
the safety with which the sparring match here at issue was
conducted. International Adhesive Coating Co. v. Bolton Emerson
Int'1, Inc., 851 F.2d 540, 544-45 (1st Cir. 1988).
Analysis of Warren's testimony as to the so-called "fight or
flight" response leads the court to rule, however, that he is not
gualified to testify as to the brain reaction necessarily
involved therein. Warren's college studies, Warren Deposition at
43, 44, even combined with his martial arts training, id. at 45,
5 do not, the court finds, empower him to express an opinion with
respect to what is essentially a medical question.
Accordingly, the defendant's motion is granted as to
exclusion of any testimony with respect to the "fight or flight"
response, but in all other respects the motion is herewith
denied.
4. Plaintiff's Motion for Partial Judgment on the Pleadings,
document 3 9
Plaintiff claims a right to a judgment on the affirmative
defense of comparative negligence. Document 39. Defendant
objects. Document 44.2
Plaintiff apparently equates comparative negligence in this
litigation with the doctrine of "assumption of the risk." The
court has already ruled out any defense grounded on such
"assumption of the risk." Order of April 19, 1994, document 27,
at 3 .
However, this does not rule out the defense of comparative
negligence. It has long been the rule in New Hampshire that
those who engage in sporting events can themselves be found
legally at fault if, in encountering the known danger involved in
2For reasons unclear, plaintiff has also filed a "response" to the defendant's objection. Document 45.
6 such sports, they fail to do so carefully. Bolduc v. Crain, 104
N.H. 163, 181 A.2d 641 (1962); Paine v. YMCA, 91 N.H. 78, 13 A.2d
820 (1940).3 Accordingly, the motion must be denied.
5. Plaintiff's Motion In Limine to Bar Evidence of Plaintiff's
Pre-Existing Injuries, document 40
In the course of his deposition, defendant Michaud testified
that he had heard, from either plaintiff or another party, that
plaintiff had suffered a prior eye injury. Defendant's Exhibit A
at 83, 84. He was unable to specify the source of such
information.
Defendant's inability to so identify the source of
information requires that the plaintiff's motion be granted, and
the testimony is herewith excluded.
6. Conclusion
For the reasons hereinabove stated, the court has granted
the defendant's motion in limine to exclude evidence of prior
injuries, document 34; deferred ruling on defendant's motion in
limine to exclude testimony of Dr. Weiss, document 35; granted in
3In Bolduc v. Crain, supra, the plaintiff's injuries were incurred while he was participating in a "horse pulling" contest at a county fair. In Paine v. YMCA, supra, the plaintiff, while playing basketball, sustained injuries when he fell into the bleachers while chasing a loose ball.
7 part and denied in part defendant's motion to exclude testimony
of Steven D. Warren, document 36; denied plaintiff's motion for
partial judgment on the pleadings, document 39; and granted
plaintiff's motion to bar evidence of plaintiff's prior injuries,
document 4 0.
The court will reserve rulings on the respective parties'
objections to exhibits (documents 37 and 38) until the time of
proffer of such exhibits at trial.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
January 9, 1995
cc: Edward M. Van Dorn, Jr., Esg. Wilfred J. Desmarais, Jr., Esg.