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Andre Jennings v. Brenda Thompson

July 22, 2011

ANDRE JENNINGS,
PLAINTIFF,
v.
BRENDA THOMPSON,
DEFENDANT.



The opinion of the court was delivered by: Beryl A. Howell United States District Judge

MEMORANDUM OPINION ON MOTION 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. The trial in this matter is scheduled for July 25, 2011 and the Court now considers one motion in limine filed by the defendant to allow the introduction of evidence of an arrest and criminal conviction of the plaintiff that occurred after the incident that gave rise to this lawsuit.*fn1

Oral argument on this motion was held at the Pre-Trial Conference on July 22, 2011. For the reasons explained below, the motion is denied.

I. BACKGROUND

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. Revised Joint Pre-Trial Statement ("JPS"), ECF No. 46, ¶¶ 2, 3, Pl. a. She leased the 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.*fn2

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. On 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.; JPS ¶ 3, Pl. o. 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. 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. Id. ¶ 3, Def. c, 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. JPS ¶ 3, Pl. m-n. He further alleges that the fall caused a 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. Id. ¶ 3, Pl. o-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 fair, reasonable, necessary, nor causally related." Id. ¶ 3, Def. k-m.

II. THE DEFENDANT'S MOTION IN LIMINE

The defendant has filed a motion in limine to allow the introduction of evidence of an arrest and criminal conviction of the plaintiff for distributing a controlled substance.*fn3 According to the defendant, on August 21, 2009, the plaintiff was arrested and on January 21, 2011, the plaintiff pled guilty to distribution of a controlled substance and was sentenced to eighteen months of a suspended sentence. Def.‟s Mot. In Limine to Allow Introduction of Pl.‟s Prior Criminal Convictions ("Def.‟s Mem.") at 2. At the previous trial, the defendant identified the controlled substance as heroin. See Tr. at 45. The defendant contends that the plaintiff wrongfully failed to disclose "the fact that he incurred the felony offense" at his deposition two months after the arrest on October 23, 2009. Def.‟s Mem. at 2. The defendant argues that evidence of the plaintiff‟s conviction and his "failure to disclose it during his deposition" is admissible under Federal Rules of Evidence 609 and 404(b). Id. at 2-4. At oral argument, the defendant also contended that the plaintiff‟s failure to supplement his answers to interrogatories to reflect the January 2011 conviction is probative of his veracity. For the reasons explained below, the Court disagrees and will exclude the evidence of the plaintiff‟s conviction.

A.The Defendant Has Presented No Evidence That The Plaintiff Lied About Or Failed To Disclose A Criminal Conviction At His Deposition.

As an initial matter, the Court finds that the defendant has presented no evidence that the plaintiff lied or failed to disclose the truth in connection with his testimony about his prior convictions at his deposition on October 23, 2009. In the relevant deposition testimony cited by the defendant, the plaintiff was questioned as follows:

Q: Other than a traffic offense, have you ever been convicted of any criminal offenses where you were represented by an attorney?

A: Yeah, back in ‟06.

Q: That was a possession of ...


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