United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF’S MOTION IN
a personal injury case stemming from a May 23, 2014 incident
in which Plaintiff fell while exiting a Wal-Mart store in
Albuquerque, New Mexico. Plaintiff claims that she sustained
severe injuries when she tripped on a transition strip
between two different types of tile that was in a state of
disrepair. In her present motion, Plaintiff asks the Court to
exclude from trial a Wal-Mart store surveillance video of her
fall. Doc. 65. The Court finds that the video is relevant and
so denies Plaintiff’s motion. Before the video is
admitted, however, Defendant must provide a proper foundation
and the Court’s ruling today does not preclude
Plaintiff from raising at the time of trial any foundation
objections she might have.
support of her motion, Plaintiff first argues the video is
incomplete because it does not show the transition strip
which she alleges caused her to fall. Therefore, she
continues, pursuant to Federal Rule of Evidence 403, its
probative value is outweighed by the danger of unfair
prejudice, confusing the issues, or misleading the jury. Doc.
65, pp. 1-2. Defendant responds that its
expert will testify that the video is in fact a complete
depiction of the fall, making it highly relevant to the issue
of what caused Plaintiff’s fall. Defendant therefore
counters that its admission does not violate Rule 403. Doc.
78, pp. 2-3.
Federal Rule of Evidence 401, relevant evidence is that which
“has any tendency to make a fact more or less probable
than it would be without the evidence,” where that
“fact is of consequence in determining the
action.” However, even relevant evidence may be
excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. The Court has broad discretion in weighing
evidence under Rule 403’s balancing test, but exclusion
of otherwise admissible, relevant evidence remains “an
extraordinary remedy and should be used sparingly.”
United States v. Tan, 254 F.3d 1204, 1211 (10th Cir.
2001) (internal quotation marks and citation omitted).
Accordingly, “the court should give the evidence its
maximum reasonable probative force and its minimum reasonable
prejudicial value.” Deters v. Equifax Credit Info.
Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000)
(internal quotation marks and citation omitted).
case, the cause of Plaintiff’s fall is certainly of
consequence in proving her action for negligence against
Defendant. See Doc. 60, p. 10 (explaining that
breach and causation are in dispute in this case). A video
depicting the actual incident from which this litigation
arises is highly probative evidence of what happened.
Further, although Plaintiff maintains that the video does not
show the entire fall, Defendant’s expert has opined
that the video provides evidence that Plaintiff fell after
crossing the transition strip. See Doc. 78, p. 3.
Plaintiff does not contend that the video is an inaccurate
representation of her fall, nor has Plaintiff articulated
exactly how the admission of the video would unfairly
prejudice her or confuse or mislead the jury. Accordingly,
the Court concludes that admission of the video would not
violate Rule 403 because it is highly probative and there
does not appear to be a significant risk of unfair prejudice,
confusing the issues, or misleading the jury.
also argues that the substance of the video is hearsay and
there is no witness to cross-examine regarding the videotape.
Doc. 65, p. 2. Hearsay is defined as a statement made outside
the current trial or hearing which is offered into evidence
“to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c). A statement is
“a person’s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an
assertion.” Fed. R. Evid. 801(a). Hearsay is not
admissible at trial, subject to exceptions listed in the
Federal Rules of Evidence. See Fed. R. Evid.
802-804, 807. Plaintiff has not explained how exactly the
video fits within the definition of hearsay. There is no
indication that the video contains a statement or assertion
by any person, whether verbal or through non-verbal conduct.
Thus, the Court cannot conclude that it is inadmissible under
Plaintiff argues that the video is inadmissible because there
is no video technician or camera operator who can lay a
proper foundation about how the video may have been clipped
or edited. Doc. 65, p. 2. Defendant represents that Adelita
Trujillo, who observed the fall in person, can authenticate
the video by testifying that the video is a fair and accurate
representation of the events at issue. Doc. 78, pp. 6-9. In
addition, Defendant has indicated that it is prepared to call
the asset protection employee who secured the video who can
testify to the authenticity of the video and the foundation
regarding possible editing. The Court, of course, cannot
determine whether a sufficient foundation for the
admissibility of the video exists until that foundation is
offered. Similarly, it would be premature to exclude the
video based on Plaintiff’s prediction that Defendant
will not be able to lay a sufficient foundation for its
admissibility. Accordingly, the Court concludes that
Plaintiff has failed to establish that the admission of the
video would violate the rules she cited in her motion.
THEREFORE ORDERED that Plaintiffs Motion in Limine to Exclude
a Videotape of Her Fall and Testimony Regarding Plaintiffs
Fall Which is Based on the Videotape (Doc. 65) is DENIED.
This ruling, however, does not preclude Plaintiff from