Bonno et al v. Sanford Clinic North et al

OCR transcription for search; preserved printed pages are authoritative

Case 3:16-cv-00114-TLB-ARS Document 334 Filed 06/12/19 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
THE FAMILIES ADVOCATE, LLC,
an Arizona Limited Liability Corporation,
as Conservator of D.M., a Minor;
and SARINA BONNO and JULIAN MORENO,
Individually PLAINTIFFS
V. CASE NO. 3:16-CV-00114
SANFORD CLINIC NORTH d/b/a
SANFORD CLINIC JAMESTOWN;
SARAH SCHATZ, M.D.; and LUTHERAN
CHARITY ASSOCIATION d/b/a
JAMESTOWN REGIONAL MEDICAL CENTER DEFENDANTS
ORDER

Now before the Court are Defendants’ Motions in Limine to Exclude Day in the Life
Video (Docs. 199, 226). Defendants filed these motions protectively, before they were
provided with copies of the day-in-the-life video that Plaintiffs propose to show to the jury.
The Court held a telephonic conference with the parties on June 11, 2019, in large part
to discuss Defendants’ reaction to viewing the actual video. The Court inquired of
Defendants whether they still maintained that the entire video should be excluded, as they
had argued in their motions, and they confirmed that they did.

The day-in-the-life video is exactly fifteen minutes long and depicts mostly D.M.
and his mother, but it also contains some footage of D.M.’s grandmother and his two
younger brothers. The video contains no audio. It depicts D.M. performing daily tasks
with the assistance of his mother and grandmother. These tasks include getting D.M. up,

changing his diaper, feeding him breakfast and medication, getting him dressed,

performing some physical therapy, placing him in a walker outdoors, placing him in a car

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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along with his wheelchair, strapping him into his wheelchair, sitting with him in a swing at
a playground, undressing him, giving him a shower, dressing him for bed, playing with
him, having him move around on the floor on all fours, and putting him to bed.

Defendants argue that this kind of video does nothing more than appeal to the
emotions, passion, and prejudice of the jury and serves no other meaningful purpose.
They also argue that the actions depicted in the video may be explained to the jury with
witness testimony alone, such that the video would simply be duplicative of witness
testimony. They ask that the video be excluded under Rule 403.

After viewing the video and considering Defendants’ arguments, the Court finds
there is nothing fundamentally inadmissible about a day-in-the-life video, and there is
nothing about this particular video that would likely lead to unfair prejudice, as described
in Rule 403. The Court has reviewed the Tenth Circuit’s opinion in Bannister v. Town of
Noble, Oklahoma, 812 F.2d 1265 (10th Cir. 1987), for helpful guidance on these issues,
as the Eighth Circuit's precedent on the admissibility of day-in-the-life videos is sparse.
The Bannister Court observed: “These films are... . often desired because films
illustrate, better than words, the impact the injury had had on the plaintiff's life.” /d. at 1269
(internal quotation marks and citation omitted). The Court cautioned, however, against
allowing “egregious self-serving conduct” to be depicted, as well as scenes showing
“[e]xaggerated difficulty in performing ordinary tasks’—as such depictions could present
a danger of undue prejudice. /d. Similarly, the Court noted that “conduct that serves little
purpose other than to create sympathy for the plaintiff is highly prejudicial.” /d. (quotation

marks and citation omitted and cleaned up).

Case 3:16-cv-00114-TLB-ARS Document 334 Filed 06/12/19 Page 3 of 4

The day-in-the-life video at issue in Bannister was deemed admissible by the trial
court, and the Court of Appeals found no abuse of discretion. This was because the film
simply and accurately portrayed the victim’s daily routine of “getting around school,
getting into his car, pumping gasoline for his car, and performing several different tasks
in his home.” /d. at 1270. Further, the Court found that any potential prejudice implicated
in showing the film was “significantly reduced” by the fact that the film’s subjects were
available for cross-examination at trial. /d.

In the case at bar, the risk of prejudice in showing the day-in-the-life video to the
jury is negligible. First, D.M.’s mother and grandmother, who are depicted in the video,
will be present at trial for cross-examination. Second, the video depicts D.M.’s daily tasks
in a rather dispassionate way and is neither overly sympathetic nor emotional. For
example, D.M. is never shown crying, complaining, refusing to perform a task, or
demonstrating pain in the video. Third, the video does not depict D.M. or any of his
caregivers showing exaggerated difficulty in performing any task. Finally, the Court finds
that the video will be useful to the jury in depicting D.M.’s daily tasks in a way that witness
testimony alone could not accurately capture. Because the film is so short, it is not likely
to overwhelm or be duplicative of any live testimony. Accordingly, Defendants’ Motions
in Limine to Exclude Day in the Life Video (Docs. 199, 226) are both DENIED.

As stated during the hearing on June 11, Plaintiffs will be permitted to play the day-
in-the-life video one time in its entirety during Sarina Bonno’s testimony. In addition, the
Court will allow Plaintiffs to play certain designated clips from the video, as set forth in an
email sent by Plaintiffs’ counsel on June 4, 2019, to accompany the testimony of Drs.

Mukund and/or Burris. In total, however, the Plaintiffs may not play any portion of the

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video more than twice to the jury. If Plaintiffs seek to play a video clip a third time at trial,
they must first seek leave of Court.

Finally, as to the issue of the raw footage from both the day-in-the-life video and a
separate settlement conference video, this raw footage was provided to the Court for
viewing in camera. Defendants requested a copy of the raw footage, and Plaintiffs
objected, arguing that it was exempted from production under Rule 26(b)(3). The Court
agrees that the raw footage is exempt from production. Further, the Court notes that the
raw footage contains nothing materially different from the footage that Defendants have
already been provided. Categorically, the exceptions are as follows: (1) the raw footage
shows D.M. using his fingers to feed himself; (2) the raw footage features a therapist
performing physical therapy with D.M. in D.M.’s home; (3) the footage depicts D.M. being
given a sponge bath by his mother on the kitchen counter/sink; and (4) the footage shows
D.M.’s grandmother crying during an interview with videographers. None of this footage
demonstrates that Plaintiffs “cherry picked” certain scenes to include in the final video
that did not accurately depict D.M.’s daily activities.

IT 1S SO ORDERED on this 2%. of June, 201

TIMOTHY L. BROOKS
___ UNITED STATES DISTRICT JUDGE