The opinion of the court was delivered by: Beryl A. Howell United States District Judge
MEMORANDUM OPINION ON MOTIONS IN LIMINE
The plaintiff Andre Jennings has sued the defendant Brenda Thompson for negligence, following the plaintiff's fall, on September 1, 2008, from a balcony at premises owned by the defendant and leased to a tenant named Lolita Bobbitt. The trial in this matter is scheduled for April 25, 2011, and the Court now considers two motions in limine filed by the plaintiff to exclude reference to alleged tenant misconduct and to exclude the testimony of a defense medical expert.
The defendant purchased a townhouse, on June 14, 2006, at 702 Ridge Road, SE, Washington, D.C. (the "premises"), which is where the incident that prompted this lawsuit occurred. Joint Pre-Trial Statement ("JPS"), ECF No. 20, ¶ 3, Pl. a. She leased those premises to her niece, Lolita Bobbitt, and Bobbitt's four children from about August 1, 2006 until March, 2009, under a D.C. Housing Assistance Payment ("HAP") contract sponsored by the U.S. Department of Housing and Urban Development ("HUD"). Id. ¶ 3, Pl. b; Pl.'s Mot. In Limine to Exclude Reference to Alleged Tenant Misconduct, ECF No. 12 ("Tenant Excl. Mot.") at 1-2.
At the time of the incident at issue in this lawsuit, Bobbitt was the tenant at the premises and the plaintiff was her guest for a Labor Day cookout. Tenant Excl. Mot. at 2. In the afternoon of Monday, September 1, 2008, while at the premises, the plaintiff lowered a trash bag to the backyard below the second floor rear balcony. Id. As he did so, the balcony's metal railing broke free and plaintiff fell to the ground approximately ten feet below. Id. The plaintiff suffered multiple fractures to his left wrist that required surgery, and he claims to be left with a permanent and painful injury that requires additional surgery. Id.
Approximately one month before the incident, on August 5, 2008, a D.C. Building Inspector had inspected the premises and found, inter alia, that the handrail for the balcony at the rear of the premises was not secure. JPS ¶ 3, Pl. f. There appears to be no dispute that the defendant received a notice from the inspector regarding his findings on about August 8, 2008. See id. ¶ 3, Pl. g; Def. b; Def.'s Opp. to Pl.'s Mot. Exclude Reference to Alleged Tenant Misconduct, ECF No. 16 ("Tenant Excl. Opp.") ¶ 2. The defendant claims that she hired a contractor to repair the balcony handrail prior to plaintiff's fall and expected the repair work to be completed by September 3, 2008. JPS ¶ 3, Def. c, d, f, h.
Plaintiff claims that the defendant was negligent in allowing a dangerous condition to exist for an unreasonable period of time, without providing a warning of the danger, and that this negligence was the proximate cause of his fall and the permanent and painful injury for which he has required treatment and will require future surgery, resulting in medical expenses estimated to be $56,917.61. JPS ¶ 3, Pl. m-q. The defendant denies that she was negligent, although she admits that she hired a contractor, Mitchell Samuel, to repair the property, which was scheduled for re-inspection on about September 3, 2008. Id. ¶ 3, Def. c, h. The defendant claims that the plaintiff voluntarily assumed the risk of injury, was contributorily negligent, and has exaggerated his injury for which "the medical treatment was neither [sic] fair, reasonable, necessary, nor causally related." Id. ¶ 3, Def. k-m.
II. PENDING MOTIONS IN LIMINE
The plaintiff has filed two pending motions in limine to exclude evidence at trial. These motions will be addressed seriatim below.*fn1
A. PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE REFERENCE TO ALLEGED TENANT MISCONDUCT
The plaintiff seeks to exclude "any alleged tenant-misconduct evidence" and any reference to the "maintenance of the interior of the premises" by Lolita Bobbitt, the defendant's tenant at the time of the incident, as either irrelevant under Rule 402 of the Federal Rules of Evidence, or prejudicial under Rule 403, or both. Tenant Excl. Mot. at 11-12. According to the plaintiff, the defendant apparently "intends to pursue a prejudicial 'tenant misconduct' defense instead of accepting responsibility for her failure to correct the defective balcony railing that caused the Plaintiff's injury." Id. at 1. Although the specific evidence that the plaintiff seeks to exclude is not altogether clear, he apparently contends the following evidence about the non-party tenant is excludable: (1) Bobbitt was a destructive tenant; (2) Bobbitt over-populated the premises in violation of the lease; (3) Bobbitt cursed offensively at the defendant; (4) Bobbitt changed the locks on the premises; and (5) incendiary evidence about Bobbitt, such as alcohol intoxication or drug abuse.*fn2 Id. at 2, 11-12. According to the plaintiff, the defendant can present no evidence that the tenant "caused the balcony railing to become unfastened" or "interfered with any repair of the railing." Id. at 10. Consequently, the plaintiff argues that evidence about alleged misconduct by Bobbitt has "no relevance to the length and time that the defective and dangerous railing went unrepaired resulting in injury to the Plaintiff" and should therefore be excluded. Id. at 1.
The defendant has outlined testimony that she may seek to offer at trial concerning interactions she had with her tenant and the tenant's family and guests.*fn3 Since the plaintiff's liability theory rests at least in part on allegations that "the defendant failed to timely arrange for repairs at the subject property," Tenant Excl. Opp. ¶ 2, the defendant contends that a "jury is entitled to hear the background of how the property was maintained by the tenant and her guests before and at the time of the incident." Id. ¶ 7. In addition, the defendant asserts that it is appropriate to introduce evidence about the tenant's activities that had the effect of denying the defendant access to the premises.
The Court agrees with the defendant that, in light of the plaintiff's theories underlying negligence liability in this case, the following evidence is relevant: the maintenance and condition of the balcony before the incident, the timing of when this area was identified as being damaged and needing repair, the persons who had control of the property, the defendant's prior efforts to inspect the property and communicate with the tenant about the condition of the property, and the obstacles presented by the tenant to such efforts, including any problems the defendant experienced in performing inspections or repairs. Under District of Columbia law, a landlord has a duty to "exercise reasonable care to maintain rental premises in compliance with the housing code," including making appropriate repairs. Childs v. Purll, 882 A.2d 227, 235-36 (D.C. 2005) (internal quotation omitted). The factors mentioned above are relevant to whether the defendant exercised "reasonable care."*fn4
At the same time, the Court finds that the number of people residing
at the apartment, the tenant's general destructive behavior, and any
alcohol or drug use by the tenant should generally be excluded under
Fed R. Evid. 402 and 403. Unless the defendant can demonstrate that
evidence regarding those matters is particularly relevant in context,
those matters will be excluded because their relevance appears minimal
and the danger of unfair prejudice by the evidence would substantially
outweigh its probative value under Fed. R. Evid. 403.*fn5
See, e.g., Harless v. Boyle-Midway Division, American Home
Products, 594 F.2d 1051, 1058 (5th Cir. 1979) ...