Disbursing Agent of the Hardesty Estate v. Severson (In re Hardesty)

242 B.R. 712, 1999 U.S. Dist. LEXIS 19876
CourtDistrict Court, D. Kansas
DecidedNovember 3, 1999
DocketNo. 99-4072-SAC; Bankruptcy No. 93-41911-11; Adversary No. 95-7072
StatusPublished

This text of 242 B.R. 712 (Disbursing Agent of the Hardesty Estate v. Severson (In re Hardesty)) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Disbursing Agent of the Hardesty Estate v. Severson (In re Hardesty), 242 B.R. 712, 1999 U.S. Dist. LEXIS 19876 (D. Kan. 1999).

Opinion

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This matter comes before the court on the defendant Eric Severson’s motion in limine to exclude evidence and argument that suggests the plaintiff disbursing agent “is acting on behalf of, or is otherwise acting in the interests of the victims of Murray F. Hardesty’s criminal actions,” or “is in any way acting on behalf of anyone other than Mr. Hardesty in this proceeding;” and testimony from Hardesty’s victims that is not relevant to the determination whether the defendant committed legal malpractice against Hardesty; (Dk. 18) and to preclude any one other than the plaintiff and his counsel from sitting at the counsel table. (Dk. 16). The plaintiff opposes the motion. (Dk. 15).

STANDARDS

The purpose of motions in limine is “ ‘to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.’ ” Palmieri v. Defaria, 88 F.3d 136, 141 (2nd Cir.1996) (quoting Banque Hypothecaire Du Canton De Geneve v. Union Mines, Inc., 652 F.Supp. 1400, 1401 (D.Md.1987)). The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground. Plair v. E.J. Brach & Sons, Inc., 864 F.Supp. 67, 69 (N.D.Ill.1994). The court may deny a motion in limine when it “lacks the necessary specificity with respect to the evidence to be excluded.” National Union v. L.E. Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y.1996). In denying a motion in limine, the court is holding that all evidence contemplated by the motion may be admitted at trial. Koch v. Koch Industries, Inc., 2 F.Supp.2d 1385, 1388 (D.Kan.1998). A ruling in limine does not “relieve a party from the responsibility of making objections, raising motions to strike or making formal offers of proof during the course of trial.” Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir.1987) (internal quotation omitted). At trial, the court may alter its limine ruling based on developments at trial or on its sound judicial discretion. Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).

“Relevant evidence” is that evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. “Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.” Fed.R.Evid. 401 adv. comm. note. “All relevant evidence is admissible except” when exclusion is called for by the [715]*715rules, by the statutes, or by constitutional considerations. Fed.R.Evid. 402. For example, the court may exclude relevant evidence when “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.” Fed.R.Evid. 403.

Because one side or the other will almost always consider a piece of evidence to be prejudicial, courts generally believe the jury is best able to determine the truth when given access to all the relevant admissible evidence. S.E.C. v. Peters, 978 F.2d 1162, 1171 (10th Cir.1992). Consequently, Rule 403 sets a standard for exclusion that is “somewhat exacting.” C.A. Associates v. Dow Chemical Co., 918 F.2d 1485, 1489 (10th Cir.1990). Rule 403 considerations impacted by the evidence must “substantially outweigh” its probative value. The Tenth Circuit “on numerous occasions” has said that “exclusion of relevant evidence under Rule 403 is an extraordinary remedy to be used sparingly.” Wheeler v. John Deere Co., 862 F.2d 1404, 1410 (10th Cir.1988) (citations omitted); seeJoseph v. Terminix Intern. Co., 17 F.3d 1282, 1284 (10th Cir.1994). Balancing the probative value of and need for evidence against the competing considerations of Rule 403 is a task for which the trial judge by his position and familiarity with the case is particularly well suited. McAlester v. United, Air Lines, Inc., 851 F.2d 1249, 1257 (10th Cir.1988). In weighing the factors under Rule 403, the court should generally “ ‘give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.’ 1 J. Weinstein & M. Burger, Weinstein’s Evidence ¶ 403[03], at 403-25 to 403-26 (1982).” K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1155 n. 9 (10th Cir.1985). Finally, a 403 inquiry focuses on whether the evidence results in “unfair prejudice,” that is, does the evidence have “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed. R.Evid. 403 adv. comm. note. See Espeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1, 7 (1st Cir.1994) (Undoubtedly, “all evidence is meant to be prejudicial; else-wise, the proponent would be unlikely to offer it.”).

ARGUMENTS

The defendant bases his motion on Rules 401, 402 and 403 of the Federal Rules of Evidence. The defendant correctly observes that the plaintiffs standing for bringing this suit is “as Mr. Hardesty’s successor in interest” (Dk. 14, p. 7) and that the plaintiff seeks to recover those damages allegedly sustained by Hardesty as a result of the defendant’s legal malpractice. In this case, those damages are measured by the difference between the amount that Hardesty was ordered to pay in criminal restitution or in other civil proceedings and/or suffered in economic harm and the alleged lesser amount that Har-desty could have settled those claims had his attorney, the defendant Severson investigated and negotiated settlements.

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Related

Luce v. United States
469 U.S. 38 (Supreme Court, 1984)
Securities and Exchange Commission v. Don S. Peters
978 F.2d 1162 (Tenth Circuit, 1992)
Plair v. E.J. Brach & Sons, Inc.
864 F. Supp. 67 (N.D. Illinois, 1994)
National Union Fire Insurance v. L.E. Myers Co. Group
937 F. Supp. 276 (S.D. New York, 1996)
Koch v. Koch Industries, Inc.
2 F. Supp. 2d 1385 (D. Kansas, 1998)
Palmieri v. Defaria
88 F.3d 136 (Second Circuit, 1996)

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Bluebook (online)
242 B.R. 712, 1999 U.S. Dist. LEXIS 19876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disbursing-agent-of-the-hardesty-estate-v-severson-in-re-hardesty-ksd-1999.