The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me for resolution of pending discovery motions and several motions in limine. Each motion will be considered in turn.
A. Plaintiff's Motion to Limine to Preclude Defendants From Referring To, Mentioning, or Admitting Any Evidence that Alleges that Plaintiff has Ever Received a Citation for Underage Possession of Alcohol ("Plains. Mot. re. Citation")
There may be testimony 1) from two toxicologists that plaintiff consumed substantial quantities of beer on the day he was injured, 2) from several of plaintiff's friends as to his drinking at parties and 3) from one of his friends that he had a phony identification so that he could buy alcohol despite being under age. On the day he was injured, Cunningham was not yet 21 years old. Second Amended Complaint and Jury Demand ("Second Comp.") ¶ 4.
Three years before he was injured, Cunningham received a citation for underage possession of alcohol. Plains. Mot. re. Citation at 2. Cunningham's counsel indicates and opposing counsel do not disagree that under Maryland law a violation of the provision pertaining to underage possession is "not a criminal conviction for any purpose." Id. at 3 (quoting Md. Code. Ann. Crim. Law § 10).*fn1 Because it was not a conviction, it may not be used to impeach Cunningham if he takes the stand. Fed. R. Evid. 609(a)(1). It is also not admissible to "prove the character of a person in order to show action in conformity therewith." Fed. R. Evid. 404(b); Welzel v. Bernstein, No. 03-CV-1887, 2005 WL 1983798, at *2 (D.D.C. Aug. 16, 2005). Obviously, it could not be admitted to prove that because Cunningham had engaged in underage drinking before, it is more likely that he engaged in it on the day of the concert.
Defendant, Contemporary Services Corporation ("CSC"), anticipates that plaintiff may argue that he is entitled to judgment because he was served alcohol at the concert. CSC therefore argues that "if plaintiff had such a convincing fake identification that he had used regularly to get into clubs, such information is certainly germane and relevant to any argument the plaintiff may make to try to pass some of the responsibility for his being drunk onto the defendants." Response and Opposition of Defendant, Contemporary Services Corporation, to Plaintiff's Motion in Limine ("CSC Opp.") at 4. But, I see nothing in the complaint indicating that Cunningham is attempting to premise this defendant's liability on plaintiff's being served alcohol under so called "dram shop" liability; his only claim, sounding in negligence, is predicated on breaches of duty in the management of the concert and none of those breaches involve the serving of alcohol. Second Comp. ¶ 25. It is inconceivable to me that Judge Roberts would permit Cunningham to proceed on a theory of liability that is not even advanced in the complaint. If he does not, then Cunningham's underage possession citation from three years ago has nothing to do with any theory of liability that plaintiff has advanced.
On the other hand, I appreciate that plaintiff, while not premising liability on his being served alcohol, is arguing that the defendants cannot avail themselves of the assumption of risk defense because "defendants illegally served him [Cunningham] alcohol in the arena." Plaintiff's Motion In Limine to Preclude Evidence of the Language on the Back of the HFStival Ticket, Exhibit 2 at 19. But, the toxicology reports make it impossible for Cunningham to deny that he was drinking and that he was underage at the time is a given. However, the legal question of whether his drinking does or does not bar the assumption of risk defense can be resolved without any need to consider whether Cunningham had drunk alcohol before. Moreover, if Judge Roberts permits the assumption of risk defense to be presented to the jury, it is impossible for their determination of whether Cunningham assumed the risk to turn on whether Cunningham also possessed alcohol three years ago.
CSC also argues that the citation is relevant to the damage calculation in terms of rebutting the testimony of Cunningham's aunt and uncle that they were not aware of his drinking. But, whatever happened at the deposition, no one knows whether they will give similar testimony at trial. They certainly will not be able to testify that, because their nephew did not drink before the day of the concert, he did not drink on that day. Fed. R. Evid. 404(a); Zenian v. District of Columbia, 283 F. Supp. 2d 36, 40 (D.D.C. 2003). Because they cannot, one is hard pressed to see how their impressions of their nephew's behavior when he was not with them would be relevant to any issue. It must be recalled that any opinion they could provide as to his character would have to be limited to his character for truthfulness. Fed. R. Evid. 608(a); United States v. Whitmore, 359 F.3d 609, 616-18 (D.C. Cir. 2004). Testimony by them purporting to express any other character trait their nephew possessed or lacked, offered to prove that his conduct on the day of the concert was in conformance with it, would be inadmissible.
Cunningham will claim that, but for the injuries he sustained at the concert, he would have received an advanced degree and been employable in a highly competitive occupation. Those suppositions underlie the lost earnings projections of the expert Cunningham will call. See infra pp. 15-18. CSC, however, wants to be able to depict Cunningham as a "young man with a rather cavalier attitude about underage drinking and the laws which prohibit it . . . " CSC Opp. at 9. It therefore wants to use the citation to portray Cunningham "warts and all." Id.
But CSC's argument, that it is unlikely that Cunningham would have finished graduate school because he was a disrespectful young man, contemptuous of authority, is nothing more than an attempt to prove that Cunningham would have acted in conformity with certain character traits on a future occasion. That is exactly the kind of blackening of character that Rule 404(a) prohibits. Moreover, there is nothing in human behavior that makes it more likely that, because an underage person possessed alcohol on one occasion, he would be incapable of completing his studies. Unfortunately, as every collegiate administrator would ruefully agree, the converse seems to be true these days.
For their part, Infinity Broadcasting Corp. and SFX Entertainment argue that the citation is relevant to prove Cunningham's knowledge of the risks involved in underage drinking. Defendants', Infinity Broadcasting Corp. and SFX Entertainment, Inc., d/b/a/ Clear Channel Communications, Inc., Opposition to Plaintiff's Motion to Limine to Preclude Defendants From Referring To, Mentioning, or Admitting Any Evidence that Alleges that Plaintiff has Ever Received a Citation for Underage Possession of Alcohol ("Infinity Opp.") at 1-2. But, the only risk that Cunningham ran on the prior occasion was that he would be given a citation if he got caught. Although he learned that lesson painfully, that risk has nothing whatsoever to do with the risks he may have undertaken in this case by doing whatever it is he is alleged to have done at the concert after having been drinking.
B. Plaintiff's Motion in Limine to Preclude Evidence of the Language on the Back of the HFStival Ticket ("Plains. Mot. re. Ticket")
The back of the HFStival ticket stated: "The holder assumes all risk and danger incidental to the attraction, whether occurring prior to, during, or subsequently to the actual attraction." Plains. Mot. re. Ticket, Exhibit 1 at 4.
The defendants have moved for summary judgment based on this sentence and Judge Roberts has taken the motion under advisement. Obviously, if he grants the motion, the case is over. In the interest of time, however, I will assume that he will deny it and reject Cunningham's claim that the jury should be precluded from seeing the ticket.
Plaintiff worries that the above-referenced sentence will "mislead the jury into thinking that its role would be to apply the language" of the ticket to the case. Plains. Mot. re. Ticket at 3. But, to establish the plaintiff assumed the risks of attending the concert, the defendants would have to establish that the "plaintiff actually knew and understood the full scope and magnitude of the dangers arising from the defendant's conduct." D.C. Civil Jury Instructions § 5.17 (2005). The defendants would also have to at least be allowed to tell the jury about their efforts to warn patrons by putting that language on the back of their tickets. If they are not even permitted to do that, they are being deprived of eliciting the very evidence on which they must rely to present their defense.
C. Plaintiff's Motion In Limine to Preclude Defendants From Referring to, Mentioning, or Admitting Any Evidence of Fake Identification ("Plains. Mot. re. Fake I.D.")
Discovery has indicated that on the day Cunningham was injured, he and his friends may have carried fake identifications in order to be served or to buy alcohol although they were underage. Plains. Mot. re. Fake I.D. at 1. Cunningham's friend, Lee Killen, testified that as he and Cunningham entered the stadium they were asked to produce identification and that Cunningham presented a false identification and was therefore given a wrist band that allowed him to purchase alcohol for himself and Killen. Defendant's Opposition to Plaintiff's Motion to Limine to Preclude Defendants From Referring to, Mentioning, or Admitting any ...