Cummings v. Bartlett CV-94-183-SD 05/18/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Mary Lou Cummings
v. Civil No. 94-183-SD
Warren A. Bartlett
O R D E R
This order addresses the issues raised by certain pending
pretrial motions.
1. Plaintiff's Motion In Limine (document 47)
In this case of recovered memory of sexual abuse, the
plaintiff alleges that the abuse which occurred in the years
1972-1978 was first brought to the fore of her mind by a certain
1992 telephone call from her mother. In this call, plaintiff's
mother told plaintiff that plaintiff's sister, Cheryl Cummings
Bucklin, had revealed that she had been sexually abused by the
defendant. This revelation between daughter and mother occurred
while they were making a hospital visit to Gail Cummings, another
sister of plaintiff.
In turn, it appears that this hospital visit was brought
about by an attempt at suicide on the part of Gail Cummings.
Without further detailing the circumstances of this suicide
attempt, plaintiff moves to exclude any testimony as to the hospitalization of Gail Cummings on the grounds of nonrelevancy.
Rule 402, Fed. R. Evid. ^ and unfair prejudice. Rule 403, Fed. R.
Evid.2
Such conclusory allegations are insufficient for the court
to rely upon in attempting to rule on the limitation of evidence
requested. Accordingly, the motion must be denied as to the
circumstances surrounding the hospitalization of Gail Cummings
without prejudice to the right of plaintiff to renew said motion
on furnishing the court with sufficient details so that the court
might properly rule on the limitation of the evidence as to such
hospitalization.
Cheryl Cummings Bucklin is apparently prepared to testify
as to the circumstances of her own sexual abuse at the hands of
the defendant. However, it appears that, in the course of her
1Federal Rule of Evidence 402 provides:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
2Federal Rule of Evidence 403 provides:
Although relevant, evidence may be excluded 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. 2 deposition, Bucklin revealed that she had been the victim of an
abduction and an attempted rape in 1989 and had been hospitalized
for depression.3
This absence of further details again forces the court to
here rule that it is not in a position to properly decide the
issue as to whether testimony as to Bucklin's abduction,
attempted rape, and depression should be barred for nonrelevance
and unfair prejudice. While Bucklin will be permitted to testify
as to her allegations of sexual abuse by the defendant, that part
of her motion which seeks exclusion of those incidents above
referred to must be denied without prejudice to plaintiff's right
to renew same upon furnishing the court with sufficient details
to allow it to logically make a ruling.
The court has reviewed the affidavit of Elizabeth Pecze
Bennett, who also claims to have been sexually abused by the
defendant. The motion will be granted insofar as Ms. Bennett
will be allowed to testify as to these incidents of sexual abuse.
In short, plaintiff's motion is denied without prejudice to
plaintiff's right to renew same upon furnishing the court with
sufficient background details to allow it to rule with respect to
3The motion does not identify Bucklin's alleged assailant or the time, places, and circumstances of the attack apart from a conclusory assertion that the assailant was "an unrelated third party." Document 47, at 3. 3 the hospitalization of Gail Cummings and the above referred to
incidents concerning Cheryl Cummings Bucklin. The motion is
granted with respect to testimony by Bucklin and Elizabeth
Bennett concerning their allegations of sexual abuse by the
defendant.
2. Plaintiff's Motion to Exclude Witnesses (document 50)
This motion seeks to exclude the testimony of twelve
witnesses listed by the defendant.
In an October 12, 1995, response to certain interrogatories
served by plaintiff, defendant indicated that he was not then
sure as to the identities of the witnesses he intended to call at
trial. To date, this answer to interrogatories has not been
supplemented as required by Rule 26(e), Fed. R. Civ. P.4
In his initial final pretrial statement filed on March 25,
1996, defendant listed ten potential witnesses. Of that group,
four witnesses, Brewster Bartlett, Rebecca Crawford, Beverly
4In general. Rule 26(e), Fed. R. Civ. P., requires that a party supplement discovery at appropriate intervals where the party learns that in some material respect the information disclosed to date is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. This duty to supplement specifically includes amendment to a prior response to an interrogatory. 4 Dufour, and Bonnie Beyer have not been deposed nor has any
supplementary information been provided as to their testimony.
In his "Supplement to Final Pretrial" filed April 30, 1998,
defendant lists eighteen potential witnesses, eight of whom are
not listed in the initial final pretrial statement. These latter
witnesses are: Elizabeth Rowe, Lynn Andrews, Janet Roberts, Nancy
Coleburn, Laurie (Morrell) Andrews, Carley Crawford, Frank Pecze,
and Joyce Dimick.
Invoking Rule 37(c) (1), Fed. R. Civ. P.,5 plaintiff moves to
bar the witnesses hereinabove listed from testifying. The court
concurs, and accordingly grants the motion. Defendant will be
barred from seeking to present testimony from the twelve
witnesses hereinabove listed.
3. Defendant's Motion In Limine Regarding Expert Testimony and
Counseling Records (document 51)
By medium of this motion, defendant seeks to exclude
testimony from plaintiff's psychological expert(s) to the effect
that plaintiff (1) has been sexually abused (2) by the defendant
and that (3) plaintiff's testimony in this regard is credible.
With respect to barring of the opinion evidence as to whether
5Rule 37(c)(1), Fed. R. Civ. P., bars from evidence at trial information that a party, without substantial justification, has failed to disclose as required by the rules of discovery. 5 abuse of plaintiff by defendant occurred, defendant relies on a
New Hampshire case involving a psychological evaluation of a
potentially abused child where, based on the record before it,
the New Hampshire Supreme Court ruled that such opinion testimony
was unreliable. State v. Cressev, 137 N.H. 402, 628 A.2d 696
(1993). As to credibility testimony, defendant relies on State
v. Huard, 138 N.H. 256,
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Cummings v. Bartlett CV-94-183-SD 05/18/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Mary Lou Cummings
v. Civil No. 94-183-SD
Warren A. Bartlett
O R D E R
This order addresses the issues raised by certain pending
pretrial motions.
1. Plaintiff's Motion In Limine (document 47)
In this case of recovered memory of sexual abuse, the
plaintiff alleges that the abuse which occurred in the years
1972-1978 was first brought to the fore of her mind by a certain
1992 telephone call from her mother. In this call, plaintiff's
mother told plaintiff that plaintiff's sister, Cheryl Cummings
Bucklin, had revealed that she had been sexually abused by the
defendant. This revelation between daughter and mother occurred
while they were making a hospital visit to Gail Cummings, another
sister of plaintiff.
In turn, it appears that this hospital visit was brought
about by an attempt at suicide on the part of Gail Cummings.
Without further detailing the circumstances of this suicide
attempt, plaintiff moves to exclude any testimony as to the hospitalization of Gail Cummings on the grounds of nonrelevancy.
Rule 402, Fed. R. Evid. ^ and unfair prejudice. Rule 403, Fed. R.
Evid.2
Such conclusory allegations are insufficient for the court
to rely upon in attempting to rule on the limitation of evidence
requested. Accordingly, the motion must be denied as to the
circumstances surrounding the hospitalization of Gail Cummings
without prejudice to the right of plaintiff to renew said motion
on furnishing the court with sufficient details so that the court
might properly rule on the limitation of the evidence as to such
hospitalization.
Cheryl Cummings Bucklin is apparently prepared to testify
as to the circumstances of her own sexual abuse at the hands of
the defendant. However, it appears that, in the course of her
1Federal Rule of Evidence 402 provides:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
2Federal Rule of Evidence 403 provides:
Although relevant, evidence may be excluded 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. 2 deposition, Bucklin revealed that she had been the victim of an
abduction and an attempted rape in 1989 and had been hospitalized
for depression.3
This absence of further details again forces the court to
here rule that it is not in a position to properly decide the
issue as to whether testimony as to Bucklin's abduction,
attempted rape, and depression should be barred for nonrelevance
and unfair prejudice. While Bucklin will be permitted to testify
as to her allegations of sexual abuse by the defendant, that part
of her motion which seeks exclusion of those incidents above
referred to must be denied without prejudice to plaintiff's right
to renew same upon furnishing the court with sufficient details
to allow it to logically make a ruling.
The court has reviewed the affidavit of Elizabeth Pecze
Bennett, who also claims to have been sexually abused by the
defendant. The motion will be granted insofar as Ms. Bennett
will be allowed to testify as to these incidents of sexual abuse.
In short, plaintiff's motion is denied without prejudice to
plaintiff's right to renew same upon furnishing the court with
sufficient background details to allow it to rule with respect to
3The motion does not identify Bucklin's alleged assailant or the time, places, and circumstances of the attack apart from a conclusory assertion that the assailant was "an unrelated third party." Document 47, at 3. 3 the hospitalization of Gail Cummings and the above referred to
incidents concerning Cheryl Cummings Bucklin. The motion is
granted with respect to testimony by Bucklin and Elizabeth
Bennett concerning their allegations of sexual abuse by the
defendant.
2. Plaintiff's Motion to Exclude Witnesses (document 50)
This motion seeks to exclude the testimony of twelve
witnesses listed by the defendant.
In an October 12, 1995, response to certain interrogatories
served by plaintiff, defendant indicated that he was not then
sure as to the identities of the witnesses he intended to call at
trial. To date, this answer to interrogatories has not been
supplemented as required by Rule 26(e), Fed. R. Civ. P.4
In his initial final pretrial statement filed on March 25,
1996, defendant listed ten potential witnesses. Of that group,
four witnesses, Brewster Bartlett, Rebecca Crawford, Beverly
4In general. Rule 26(e), Fed. R. Civ. P., requires that a party supplement discovery at appropriate intervals where the party learns that in some material respect the information disclosed to date is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. This duty to supplement specifically includes amendment to a prior response to an interrogatory. 4 Dufour, and Bonnie Beyer have not been deposed nor has any
supplementary information been provided as to their testimony.
In his "Supplement to Final Pretrial" filed April 30, 1998,
defendant lists eighteen potential witnesses, eight of whom are
not listed in the initial final pretrial statement. These latter
witnesses are: Elizabeth Rowe, Lynn Andrews, Janet Roberts, Nancy
Coleburn, Laurie (Morrell) Andrews, Carley Crawford, Frank Pecze,
and Joyce Dimick.
Invoking Rule 37(c) (1), Fed. R. Civ. P.,5 plaintiff moves to
bar the witnesses hereinabove listed from testifying. The court
concurs, and accordingly grants the motion. Defendant will be
barred from seeking to present testimony from the twelve
witnesses hereinabove listed.
3. Defendant's Motion In Limine Regarding Expert Testimony and
Counseling Records (document 51)
By medium of this motion, defendant seeks to exclude
testimony from plaintiff's psychological expert(s) to the effect
that plaintiff (1) has been sexually abused (2) by the defendant
and that (3) plaintiff's testimony in this regard is credible.
With respect to barring of the opinion evidence as to whether
5Rule 37(c)(1), Fed. R. Civ. P., bars from evidence at trial information that a party, without substantial justification, has failed to disclose as required by the rules of discovery. 5 abuse of plaintiff by defendant occurred, defendant relies on a
New Hampshire case involving a psychological evaluation of a
potentially abused child where, based on the record before it,
the New Hampshire Supreme Court ruled that such opinion testimony
was unreliable. State v. Cressev, 137 N.H. 402, 628 A.2d 696
(1993). As to credibility testimony, defendant relies on State
v. Huard, 138 N.H. 256, 638 A.2d 787 (1994).
The court finds and rules that while none of plaintiff's
experts will be permitted to testify at trial as to their opinion
of plaintiff's credibility,6 the remainder of the motion must be
denied at this juncture because it is premature.
Rule 702, Fed. R. Evid.,7 requires the court to apply a
three-part test concerning the testimony of expert witnesses.
Boaosian v. Mercedes-Benz of N.A., Inc., 104 F.3d 472, 476 (1st
testimony as to the credibility of the plaintiff would invade the province of the jury by vouching for plaintiff's credibility. In any event, such testimony would be unhelpful to the jury since, of necessity, the expert's knowledge of the alleged abuse events is hearsay from plaintiff and perhaps others. See Isely v. Capuchin Province, 877 F. Supp. 1055, 1067 (E.D. Mich. 1995) .
7Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 6 Cir. 1997). First, the court must determine whether the proposed
expert is "qualified by knowledge, skill, experience, training,
or education." Id. (citations omitted). Second, the court
inquires if the proposed subject matter of the expert opinion
properly concerns "scientific, technical, or other specialized
knowledge." Id. Finally, the court assesses whether the
testimony is helpful to the trier of fact; that is, whether it
rests on a reliable foundation and is relevant to the facts of
the case. Id.
To properly rule upon the admissibility of the opinion
testimony, the court must of necessity hear evidence directed to
the above-outlined factors. Only then will it be in a position
to rule on whether or not such opinion testimony is admissible.
Accordingly, the motion is granted only to the extent that
no witness will be allowed to testify as to the credibility of
the plaintiff. The remainder of the motion is denied without
prejudice to the defendant's right to renew same after completion
of the voir dire of the expert at trial.8
8After the court had largely prepared this order, it received and accordingly reviewed plaintiff's objection to defendant's motion in limine. Document 53. As the court finds distinguishable the admission of testimony at the hearing on the issue of the statute of limitations from the testimony to be admitted at trial, it has issued this order accordingly. 7 4. Conclusion
For the reasons outlined the court has granted in part and
denied in part (without prejudice to plaintiff's right to renew
same) plaintiff's motion in limine (document 47). The court has
granted plaintiff's motion to exclude witnesses (document 50).
The court has granted in part and denied in part (without
prejudice to defendant's right to renew same) defendant's motion
in limine to exclude the testimony of plaintiff's expert
witnesses (document 51).
It appears the case is now ready to proceed forward with
jury selection on May 19, 1998, with actual trial to commence on
May 26, 1998.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
May 18, 1998
cc: Benette Pizzimenti, Esq. Matthew J. Lahey, Esq.