MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Plaintiffs Motion In Limine, filed November 16, 2015 (Doc. 76)(“Motion”). The Court held a hearing on December 22, 2015. The primary issues are: (i) whether the Court should exclude third-party Larry Payne’s out-of-court statements regarding his driving immediately before the crash under rule 403 of the Federal Rules of Evidence; (ii) whether the Court should exclude evidence of Plaintiff Elia Leon’s settlement with Payne and Puckett Transportation, Inc. (“Puckett”); (iii) whether the Court should exclude E. Leon’s allegations in Leon v. Payne, et al., No. CIV-12-0814 JB/LAM (D.N.M.)(the “Puckett Action”); and (iv) whether the Court should take judicial notice of Leon’s allegations in the Puckett Action.
FACTUAL BACKGROUND
The Court takes its facts from the Plaintiffs Complaint to Recover Damages for Personal Injury & Wrongful Death (Jury Trial Demanded), filed October 17, 2013 (Doc. l)(“Complaint”), the Motion, and the Response.
Martinez-Leandro was Eusebia Transportation, Inc.’s employee or agent. See Complaint ¶ 8, at 2. Eusebia Transportation had leased the tractor and Martinez-Leandro’s services to FedEx Ground, which provided the trailers and displayed its Department of Transportation number on the tractor. See Complaint ¶ 7-8, at 2.
Payne, one of Puckett’s drivers, was driving the other tractor-trailer involved in the collision. See Complaint ¶ 15, at 3. Payne reported to police officers responding to the crash that he was sleeping in his truck on the highway’s right shoulder when FedEx Ground’s truck struck him from behind. See Response at 2. Investigating officers later confronted Payne with physical evidence showing that the collision occurred in the right lane rather than the shoulder. See Response at 2. Payne then changed his account, providing a written statement that he was traveling at fifty-five miles per hour in the right lane immediately before the collision. See Response at 2. E. Leon, FedEx Ground, and the New Mexico State Police subsequently reconstructed the accident, and all agree that Payne’s truck was traveling in the outer lane of travel at less than the speed limit. See Motion at 5; Response at 2 (stating that Payne was traveling “well below the speed limit, at approximately 34 to 38 mph”).
PROCEDURAL BACKGROUND
Plaintiff E. Leon brought suit as decedent M. Leon’s widow and personal representative in state court on May 16, 2012. See Puckett Action, Complaint to Recover Damages for Wrongful Death, Punitive Damages and Other Damages, filed in state court May 16, 2012, filed in federal court July 25, 2012 (Doc. 1-1 in the Puckett Action)(“Puckett Complaint”). E. Leon’s Puckett Complaint names Payne, Puckett, Martinez-Leandro, FedEx Ground, and Eusebia Transportation, Inc. as defendants. See Puckett Complaint ¶¶ 4-13, at 1-3. The Puckett Complaint alleges that “Defendant Larry Payne operated his vehicle in a careless, negligent and/or reckless manner and without regard to the safety of others traveling on the highway of the State of New Mexico, including but not limited to Martin Leon.” Puckett Complaint ¶ 18, at 3^4. It adds that “Defendant Federico Martinez-Lean-dro is further comparatively negligent for the operation of his vehicle.” Puckett Complaint ¶ 19, at 12.
FedEx Ground removed the case to federal court on July 25, 2012. See FedEx Ground Package System, Inc.’s Notice of
E. Leon filed a second action in federal court against FedEx Ground on October 17, 2013. See Complaint ¶¶ 2, 4, at 1. E. Leon alleges two causes of action in her Complaint: (i) a negligence and negligence per se claim based on FedEx Ground’s failure to maintain and operate the vehicle in a safe manner, see Complaint ¶¶ 17-25, at 4-5; and (ii) a negligence and negligence per se claim based on FedEx Ground’s failure to maintain and operate the vehicle in compliance with applicable safety rules and administrative standards, see Complaint ¶¶ 26-39, at 5-7. E. Leon seeks actual and compensatory, exemplary, and punitive damages. See Complaint ¶¶ 4143, at 7-9.
1. The Motion.
E. Leon filed her only motion in limine on November 16, 2015. See Motion at 1. The Motion requests that the Court: (i) exclude Payne’s out-of-court statements, particularly those to investigators; (ii) exclude evidence of Payne and Puckett’s settlement agreement; and (iii) exclude evidence of E. Leon’s allegations in the Puckett Complaint.
2. The Response.
FedEx Ground responded on December 3, 2015. See Response at 1. FedEx Ground begins by attempting to show that Payne’s out-of-court statements are not hearsay or at least fall within a hearsay exception. See Response at 1-8. It contends that it will introduce Payne’s statements to show their inconsistency rather than to prove their truth. See Motion at
FedEx Ground also argues that the settlement agreement is relevant, because the jury will hear testimony about both drivers and the agreement will “explain Puckett’s absence to the jury.” Response at 8. It asserts that “evidence of the fact of settlement between Plaintiff and Puckett is admissible under Federal Rule of Evidence 408 because [FedEx Ground] does not seek to introduce the evidence to show damages or the validity of Plaintiffs claim.” Response at 8 (emphasis in original). It states that the fact of settlement “will assist the jurors in understanding Puckett’s absence from trial.” Response at 10 (citing West v. N.M. Taxation & Revenue Dep’t,
Finally, FedEx Ground argues that the Puckett Complaint’s allegations against Payne and Puckett are relevant and admissible. See Response at 10-15. It counters E. Leon’s argument about her attorney’s opinions, explaining that rule 11 provides sanctions for “merely putting ’opinions’ into a court filed pleading.” Response at 11. It also states that “[statements contained in a pleading filed in one action are generally admissible in a subsequent action involving one or both of the same parties.” Response at 11 (citing LCI Int’l Telecom Corp. v. American Teletronics Long Distance,
3. The Reply.
E. Leon replied to FedEx Ground on December 21, 2015. See Plaintiffs Reply to Defendant FedEx’s Response in Opposition to Plaintiffs Motion in Limine, filed December 21, 2015 (Doc. 125)(“Reply”). E. Leon first notes: “The investigating officers and both parties’ accident recon-structionists agree that before the crash, Payne had pulled out from the side of the road onto the right hand lane of 1-40, and that he was going somewhere between 35 and 45 mph at the time of the crash.” Reply at 1-2. Given this agreement, she argues, Payne’s prior inconsistent statements are irrelevant to the dispute before the Court. See Reply at 2. E. Leon contends that, even if the statements were relevant, their prejudice outweighs any probative value. See Reply at 2.
E. Leon then attacks FedEx Ground’s argument that the settlement with Payne and Puckett should be admissible. See Reply at 2-3. She contends that the settlement could be introduced only to improperly “convince the jury that Payne and Puckett were at fault.” Reply at 3. She suggests that the Court give a jury instruction to the effect that “you should
E. Leon makes similar arguments regarding the Puckett Complaint’s allegations. See Reply at 4-5. She first defends her argument that the allegations were merely her attorneys’ opinion, explaining that, “[although Rule 11 requires a good faith basis for the allegations, it does not alter that fact that allegations are simply that — expressions of belief or opinion by the signatory attorney.” Reply at 3. She concedes that the allegations are admissions of a party opponent, but argues that they are inadmissible under rules 701 and 702. See Reply at 4. E. Leon also cites to Greenwood v. Mepamsa, No. 1 CA-CV 11-0782,
We find no “dishonesty” inherent in the relatively common situation when a plaintiff in a multi-defendant case settles with some defendants and proceeds to trial against other defendants. By statute, Arizona law is structured to prevent duplicate or overlapping recoveries in cases involving multiple alleged tortfea-sors. When, as here, a defendant settles and is designated a non-party at fault, the jury is instructed to reduce the plaintiffs recovery by the percentage of fault attributed to the settling defendants. A.R.S. § 12-2506. The integrity of the Arizona comparative fault system is compromised when the court allows evidence that invites the jury to speculate that it is being duped into facilitating multiplicitous recoveries. The role of the trial court when a settling defendant becomes an “empty chair” is to take steps to prevent the prejudice that' might flow from jury speculation. The court’s ruling here invited the opposite result: to ensure that the jury would view the Greenwoods less favorably by inferring that AmeriGas had paid them to be absent from the trial. Accordingly, on this record, the Greenwoods’ motion in limine should have been granted.
4. The Hearing.
The Court held a hearing on December 22, 2015. See Tr. at 1. The Court opened the hearing by commenting that “it seems to me that unless Larry Payne is going to testify, in one form or another, either a deposition or live, he can’t start bringing in statements because there is nothing to impeach.” Tr. at 114:9-12 (Court). E. Leon argued that rule 403 counsels for exclusion, because Payne’s statements have minimal probative value, and that the case “ought to be decided on its merits, not on the fact that somebody else made some statements that may or may not have been accurate.” Tr. at 115:10-13 (Barber). FedEx Ground replied that it would use Payne’s statements “to show comparative fault on behalf of Puckett” rather than to “assert the truth of the matter.” Tr. at 116:1-4 (Saiz). It predicted that E. Leon would “argue that Puckett had no liability for this accident” and that Payne’s statements would aid in their defense. Tr. at 117:13-18 (Saiz).
E. Leon responded that the statements are irrelevant, “because the experts and the cops all understood the speed within a pretty narrow range.” Tr. at 120:3-5 (Barber). FedEx Ground emphasized that any police officer witnesses should be able to discuss “how the stories were inconsistent.” Tr. at 120:8-15 (Saiz).
The Court repeated its belief that FedEx Ground intends to offer the statements for the truth of the matter asserted. See Tr. at 120:16-23 (Court). The Court suggested that: (i) the statements do not fall within the present-sense-impression exception, because “he had [ ] time to think up something to try to excuse himself’; (ii) the recorded recollection exception is inapplicable, because Payne could not take the stand; (iii) the excited utterance exception was unlikely to apply; and (iv) the statements did not fall within the residual exception. Tr. at 120:24-121:24 (Court).
The Court then noted that it was likely to admit the Puckett Complaint’s allegations against Payne and Puckett. See Tr. at 122:3-14 (Court). E. Leon argued that “all of the cases that have looked at this— and I haven’t seen yours — but all of them miss the point.” Tr. at 122:17-19 (Barber). E. Leon contended that the inconsistent statements were “extremely prejudicial,” because they show that she took an inconsistent position in the Puckett Complaint without explaining why. Tr. at 123:16-23 (Barber). The attorney who drafted the Puckett Complaint, she noted, would be unable to explain his decision on the stand. See Tr. at 125:3-8 (Barber). She stated that the allegations would “simply [] prejudice the jury, call Payne a liar.” Tr. at 124:19-22 (Barber).
FedEx Ground responded that, “[i]f Mr. Caruso takes the stand and talks about his allegations, I believe that opens the door to settlement as well.” Tr. at 125:20-22 (Saiz). It repeated that “allegations from a prior complaint can be used as evidentia-ry admissions against interests.” Tr. at 126:1-6 (Saiz). It also raised a possible negative consequence:
If a court were to permit plaintiffs to file lawsuits like this against multiple defendants; dismiss one; settle with another; and then refile against that same defendant, then it would encourage plaintiffs to file, essentially, one lawsuit, and dismiss one. So that it never could be heard of again in a subsequent lawsuit. It invites a jury to attribute 100 percent fault to one party at a time.
Tr. at 127:1-10 (Saiz). E. Leon responded that the issue “isn’t a question of whether or not they’re hearsay. It’s a question of whether or not they’re probative of anything that exceeds the prejudice, particularly if the opportunity to explain them is denied.” Tr. at 128:1-5 (Barber).
The Court concluded the relevant portion of the hearing by stating that “[i]t does seem to me it’s highly relevant, if
LAW REGARDING THE RELEVANCY OF EVIDENCE
“The rules of evidence contemplate the admission of relevant evidence, and the exclusion of irrelevant and potentially prejudicial evidence.” Train v. City of Albuquerque,
LAW REGARDING RULE 403
Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Under rule 403, the trial court must weigh the proffered evidence’s probative value against its potential for unfair prejudice. See United States v. Record,
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court’s discretion, see United States v. Lugo,
In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings.... This is particularly true with respect to Rule 403 since it requires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384,
Evidence may be unfairly prejudicial if it would likely provoke the jury’s emotional response or would otherwise tend to adversely affect the jury’s attitude toward a particular matter. See United States v. Rodriguez,
LAW REGARDING HEARSAY
“Hearsay testimony is generally inadmissible.” United States v. Christy, No. CR 10-1534 JB,
The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
Fed. R. Evid. 801(d)(2). The Tenth Circuit has stated:
Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from restrictive influences of the opinion rule and the rule requiring first-hand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for a generous treatment of this avenue of admissibility.
Grace United Methodist Church v. City of Cheyenne,
1. Law Regarding Rule 803(1).
Rule 803(1) provides an exception to the rule against hearsay for “[a] statement describing an event or condition, made while or immediately after the de-clarant perceived it.” Fed. R. Evid. 803(1). “By its own terms, application of Rule 803(1) has three distinct requirements: i) the statement must describe or explain the event perceived; ii) the declar-ant must have in fact perceived the event described; and iii) the description must be ’substantially contemporaneous’ with the event in question.” United States v. Mejia-Valez,
2. Law Regarding Rule 803(2).
Rule 803(2), commonly referred to as the excited utterance exception, provides an exception to the exclusion of hearsay statements for “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Fed. R. Evid. 803(2). The United States Court of Appeals for the District of Columbia has noted that “[t]he rationale underlying the ’excited utterance’ exception is that ’excitement suspends the declarant’s powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self-interest and therefore rendered unreliable.’ ” United States v. Alexander,
The so-called excited-utterance exception has three requirements: (1) a startling event; (2) the statement was made while the declarant was under the stress of the event’s excitement; and (3) a nexus between the content of the statement and the event. There is no precise amount of time between the event and the statement beyond which the statement cannot qualify as an excited utterance. Admissibility hinges on a statement’s contemporaneousness with the excitement a startling event causes, not the event itself. There is no hard time limit that must be met under Rule 803; what is relevant is whether the declar-ant is still under the excitement of the startling event.
Courts consider a range of factors in determining whether a declarant made a statement while under the stress of a particular event. Among the more relevant factors are: the amount of time between the event and the statement; the nature of the event; the subject matter of the statement; the age and condition of the declarant; the presence or absence of self-interest; and whether the statement was volunteered or in response to questioning.
United States v. Pursley,
The United States Court of Appeals for the Second Circuit has provided an analysis of the similarities and subtle differences between the present sense impression and excited utterance exceptions to the rule against hearsay:
As defined by the Federal Rules of Evidence, a present sense impression is a statement “describing or explaining an event or condition made while the de-clarant was perceiving the event or condition, or immediately thereafter.” Rule 803(1), Fed. R. Evid. Such statements are considered to be trustworthy because the contemporaneity of the event and its description limits the possibility for intentional deception or failure of memory. See United States v. Brewer,36 F.3d 266 , 272 (2d Cir.1994).
The hearsay exception for excited utterances is premised on a similar, though distinct, assumption that the reliability of a statement increases as opportunity for reflection by the declarant decreases. An “excited utterance” is “[a] statement relating to a startling event or condition made while the de-clarant was under the stress of excitement caused by the event or condition.” Rule 803(2), Fed. R. Evid. As we have explained, “[t]he rationale for this hearsay exception is that the excitement of the event limits the declarant’s capacity to fabricate a statement and thereby offers some guarantee of its reliability.” [United States v.] Tocco,135 F.3d 116 , 127[ (2d Cir.1998) ]. Unlike present sense impressions, “[a]n excited utterance need not be contemporaneous with the startling event to be admissible.” Id. Rather “[t]he length of time between the event and the utterance is only one factor to be taken into account in determining whether the declarant was, within the meaning of rule 803(2), ’under the stress of excitement caused by the event or condition.’ ” United States v. Scarpa,913 F.2d 993 , 1017 (2d Cir.1990).
Thus while the hearsay exception for present sense impressions focuses on contemporaneity as the guarantor of reliability, and requires that the hearsay statement “describe or explain” the contemporaneous event or condition, Rule 803(1), Fed. R. Evid., the excited utterance exception is based on the psychological impact of the event itself, and permits admission of a broader range of hearsay statements — i.e. those that “relate to” the event. Rule 803(2), Fed. R. Evid.
United States v. Jones,
In Maples v. Vollmer, No. CIV 12-0294 JB/RHS,
The second and third requirements of the excited utterance analysis cannot reasonably be challenged under the circumstances surrounding S. Lane’s 911 call: (i) S. Lane’s statements were contemporaneous with the event, and there is thus no lapse of time here between the startling event to which S. Lane’s statements relate and the statements; and (ii) there is a nexus between the statements’ content and the event, as S. Lane’s statements detail the event in real time, explain why the event prompted her to call 911, and describe Maples to the 911 operator.
Professor Stephen A. Saltzburg explains that courts have been quite liberal in finding that an event is startling for purposes of rule 803(1):
In most cases it is not seriously disputed that the event to which the excited utterance relates is in fact a startling event. Occurrences such as accidents, fights, and physical crimes are generally deemed startling events. However, admissibility under the Rule is not limited to events describing such clearly upsetting occurrences. The Courts have been quite expansive in finding that an event triggered a startled statement is in fact a startling event.
4 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Fed. Rules of Evid. Manual § 803.02[3][b], at 803-18 (9th ed.2006)(footnotes omitted). Professor Saltzburg cites to David v. Pueblo Supermarket,740 F.2d 230 (3d Cir. 1984), as an “e.g.” example to support his proposition that courts have been quite expansive in finding a startling event. In David v. Pueblo Supermarket, the United States Court of Appeals for the Third Circuit held that a woman observing another woman, to whom she was not related, “who was eight months pregnant fall directly on her stomach ... would reasonably qualify as a ’startling occasion.’ ”740 F.2d at 235 . Another example to which Professor Saltzburg cites is United States v. Beverly,369 F.3d 516 (6th Cir.2004), in which the United States Court of Appeals for the Sixth Circuit held that “viewing the photograph of the individual that [the de-clarant] recognized as her husband committing a bank robbery was a startling event.”369 F.3d at 540 .
3. Law Regarding Rule 803(5).
Rule 803(5) exempts recorded recollections from rule 802’s general exclusion of hearsay and allows a document that meets the foundational requirements to be read into the record. See Fed. R. Evid. 803(5). Rule 803(5) defines a recorded recollection as: “A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately re-
LAW REGARDING JUDICIAL NOTICE
Rule 201 of the Federal Rules of Evidence allows a court to, at any stage of the proceeding, take notice of “adjudicative” facts that fall into one of two categories: (i) facts that are “generally known within the territorial jurisdiction of the trial court;” or (ii) facts that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b), (f). “Adjudicative facts are simply the facts of the particular case.” United States v. Wolny,
ANALYSIS
The Court will grant the Motion in part and deny it in part. The Court will admit Payne’s out-of-court statements for the limited purpose of showing their inconsistency, but not for their truth. The Court will exclude E. Leon’s settlement with Payne and Puckett, because it is prejudicial, and there are other ways to avoid jury confusion, at least in part, over the missing parties. The Court will admit the Puckett Complaint’s allegations to show that E. Leon has asserted that Payne and Puckett were also negligent. Finally, although the Court takes judicial notice of the Puckett Complaint, it cannot properly take judicial notice of the facts alleged within the document for the truth of the matters asserted therein; those statements are, however, admissible for the truth of the matters asserted therein, because they are not hearsay.
1. PAYNE’S OUT-OF-COURT STATEMENTS ARE ADMISSIBLE, FOR A LIMITED PURPOSE, BECAUSE THEY ARE RELEVANT AND ARE NOT HEARSAY FOR THAT LIMITED PURPOSE.
The Court will admit Payne’s out-of-court statements on the accident, for a limited purpose, because they are relevant and because FedEx Ground is not offering them for the truth of the matter asserted. First, the statements are relevant for a limited purpose. E. Leon contends that these statements have no probative value, because the parties agree on how the accident physically occurred. See Reply at 1-2. She states that this agreement, combined with Payne’s absence from the case, make his veracity and past inconsistent statements irrelevant. See Motion at 5-6. The Court disagrees with E. Leon’s conclusion. FedEx Ground will present a defense of comparative fault. See Response at 2-3. “Relevant evidence is evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” United States v. Gutier
Second, rule 403 does not require the Court to exclude these statements. Only “unfair prejudice, substantially outweighing probative value,” allows the Court “to exclude relevant evidence. United States v. Pettigrew,
Third, Payne’s statements are not hearsay, because FedEx Ground will introduce them to indicate that Payne made inconsistent statements rather than to show that each statement was true. See Fed. R. Evid. 801(c)(2). FedEx Ground seeks to admit: (i) excerpts from the deposition of police officer Lyle Maurice Sarra-cino; (ii) excerpts from the deposition of police officer Sergeant Steven Shutiva; and (iii) Payne’s handwritten and signed statement to the police shortly after the accident during the course of the investigation. See Response at 2-3. FedEx Ground wants to admit these statements, not to establish that Payne was driving at a certain speed or to show the police officers’ state of mind, but rather to establish that Payne made the statements. See Barber Response at 1. FedEx Ground does not offer the written, statement, for example, to show that Payne was driving in the right lane at sixty five miles per hours when the accident occurred. “[T]estimony is not hearsay when it is offered to prove only that a statement was made and not the truth of the statement.” Skyline Potato Co. v. Hi-Land Potato Co., No. CIV 10-0698 JB/RHS,
If the statements were hearsay, however, they would not be exempt for any of the reasons that FedEx Ground describes in its Response. First, the statements do not fall within the “present sense impression” exception under rule 803(1). Fed. R. Evid. 803(1). This exception has three requirements: “i) the statement must describe or explain the event
Second, the statements do not qualify as recorded recollections under rule 803(5). The rule defines a “recorded recollection” as a record that: “(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge.” Fed. R. Evid. 803(5). FedEx Ground has not provided sufficient foundation for the Court to conclude that the statements meet the first two conditions. Moreover, both parties agree that the relevant statements do not accurately reflect Payne’s knowledge of the wreck. See Motion at 5; Response at 2.
To overcome these problems, FedEx Ground cites LaVoy v. Snedeker, No. CIV-03-765 MCA/KBM,
Third, the statements are not admissible as excited utterances. See Fed. R. Evid. 803(2). The excited utterance exception has three requirements: “(1) a startling event; (2) the statement was made while the declarant was under the
II. E. LEON’S SETTLEMENT WITH PAYNE AND PUCKETT IS INADMISSIBLE, BECAUSE IT WOULD BE PREJUDICIAL AND THERE ARE OTHER TOOLS AVAILABLE TO AVOID JURY CONFUSION.
Second, the Court will exclude evidence of E. Leon’s settlement with Payne and Puckett, because its admission would be prejudicial and the Court can use other measures to avoid or minimize jury confusion. Rule 408 of the Federal Rules of Evidence bars the admission of settlements “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.” Fed. R. Evid. 408. Settlement agreements may be admissible “for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” Fed. R. Evid. 408.
FedEx Ground contends that the Court should admit the settlement agreement’s existence, if not its terms, to “assist the jurors in understanding Puckett’s absence from trial.” Response at 10. Other courts have admitted settlement evidence for this purpose. See Belton v. Fibreboard Corp.,
The introduction of this evidence would prejudice E. Leon. Informing jurors that Puckett and Payne settled could cause them to unfairly decrease FedEx Ground’s share of the liability. See McHann v. Firestone Tire & Rubber Co.,
III. E. LEON’S ALLEGATIONS IN THE PUCKETT COMPLAINT ARE ADMISSIBLE, BECAUSE THEY ARE RELEVANT TO COMPARATIVE FAULT.
The hearsay rule does not bar the Puckett Complaint’s allegations, because they are a party opponent’s statements. The allegations also fall within the Tenth Circuit’s separate exception for introducing a plaintiffs prior inconsistent pleadings against other defendants. E. Leon’s proposed distinction between her attorney’s statements in the Puckett Complaint and her own statements lacks legal merit, and does not invalidate the allegations as evidence. Finally, the danger of unfair prejudice from the allegations does not substantially outweigh their probative value. The Court will thus admit the Puckett Complaint’s allegations at trial.
A. THE PUCKETT COMPLAINT’S ALLEGATIONS ARE NOT HEARSAY.
The Court will admit the Puckett Complaint’s allegations, because they are a party opponent’s statements.
The relevant evidence is a statement “the party manifested that it adopted or believed to be true,” and it was “made by a person whom the party authorized to make a statement on the subject.” Fed. R. Evid. 801(d)(2). It contradicts E. Leon’s theory that FedEx Ground was largely or entirely responsible for the crash. Like the prior complaint that the Tenth Circuit admitted in Dugan v. EMS Helicopters, Inc., the Puckett Complaint “is factually inconsistent with the position plaintiffs pursued in this case and therefore constitutes an admission against interest pursuant to Fed. R. Evid. 801(d)(2).”
There is a judicial overlay on the Federal Rules of Evidence creating an exception to the general rule that a party’s prior statements are admissible as admissions. See 6 Handbook of Fed. Evid. § 801:26 n.ll (7th ed.2012)(deseribing the exception). This exception prohibits litigants from introducing a party’s prior inconsistent pleadings in subsequent litigation. See 6 Handbook of Fed. Evid. § 801:26 (7th ed. 2012). Although this exception does not appear in the rules themselves, some courts have enforced it because the admission of prior inconsistent pleadings “frustrates the liberal pleading and joinder rules” by punishing plaintiffs for making inconsistent allegations. 6 Handbook of Fed. Evid. § 801:26 (7th ed. 2012). One treatise described the rationale for this exception: “Since the purpose of alternative pleadings is to enable a party to meet the uncertainties of proof, policy considerations demand that alternative pleadings not be admitted either as an admission of a party-opponent or for the purpose of impeachment.” 30B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 7026 (2014 ed.).
Strictly applied, however, this rale would place a litigant at his peril in exercising the liberal pleading and join-der provisions of the Federal Rules of Procedure.... Thus, as a necessary exception to the general rule, there is ample authority that one of two inconsistent pleas cannot be used as evidence in the trial of the other.
Cont’l Ins. Co. of New York v. Sherman,
At least one treatise has suggested that the bar on admitting prior pleadings should apply even “to cases involving separate actions against different defendants to recover for the same injury.” McCormick on Evidence § 262 (5th ed. 2003). This rule, however, would permit “sharp practice, whereby a plaintiff sues multiple defendants for the identical injury and then proceeds to collect from each one, safe in the knowledge that the jury in one case will never know what the plaintiff has plead in another case.” Svege v. Mercedes-Benz Credit Corp.,
The Tenth Circuit has resolved this dilemma by creating an exception to the exception. It has held that “[ijnconsis-tent allegations contained in prior pleadings are admissible as evidence in subsequent litigation.” LWT, Inc. v. Childers,
E. Leon made the relevant allegations in prior litigation against a different defendant that resulted from the same injury — her husband’s death. See Dugan v. EMS Helicopters, Inc.,
Plaintiffs may object to the allegations’ admission on the grounds that they are inaccurate or that circumstances have changed. In Williams v. Union Carbide Corp., for example, the plaintiff noted that he made the statements in his original complaint, without extensive investigation, “primarily out of a concern over the running of the statute of limitations.”
C. THE PUCKETT COMPLAINT’S ALLEGATIONS ARE NOT MERELY OPINIONS.
E. Leon attempts to exclude the Puckett Complaint’s allegations on the ground that the allegations are her attorney’s “statements of facts that he believes, to be true — essentially, his opinion. They are not statements of the plaintiff.” Motion at 7. She further argues that the attorney “certainly could not be called as a witness to give his opinion as to who was at fault in this case.” Motion at 7. She cites Greenwood v. Mepamsa to support her argument that the Puckett Complaint’s allegations are “inadmissible opinion[s].” Tr. at 123:2-3 (Barber).
The Court finds this argument unconvincing for two primary reasons. First, a complaint’s allegations are not mere inadmissible opinions. As one treatise explains:
More often, however, the pleading is prepared and signed by counsel, and the older view was that statements contained in such pleadings were presumed to be merely “suggestions of counsel”unless other evidence was produced that they were actually sanctioned by the client. The dominant position, however, is that pleadings shown to have been prepared or filed by counsel employed by the party are prima facie regarded as authorized by the client and are entitled to be received an admissions.
2 McCormick On Evid. § 257 (7th ed. 2013).
Second, Greenwood v. Mepamsa does not support E. Leon’s point. The court there justified its decision to allow the defendant to read the plaintiffs’ original complaint, “which included allegations against each of the settling parties,” to “expose the Greenwoods’ ’dishonesty’ in
D. THE POSSIBLE UNFAIR PREJUDICE FROM THE PUCKETT COMPLAINT’S ALLEGATIONS DOES NOT SUBSTANTIALLY OUTWEIGH THEIR PROBATIVE VALUE.
Finally, the Court concludes that the danger of unfair prejudice does not substantially outweigh the evidence’s probative value under rule 403. First, the evidence has significant probative value. E. Leon has not stipulated that Puckett and Payne were negligent. The second Complaint does not mention their tractor-trailer’s speed. See Complaint ¶ 15, at 3. As discussed above, FedEx Ground will raise a comparative fault defense, asking that the jury attribute some portion of the damages to Puckett and Payne. See Response at 1-2. That E. Leon previously asserted that Payne and Puckett were also negligent tends to support FedEx Ground’s comparative fault defense. The Puckett Complaint’s allegations are thus relevant to determine whether Puckett and Payne are partly or wholly responsible for the collision at issue.
Other courts have admitted prior allegations for similar reasons. In Dugan v. EMS Helicopters, Inc., the plaintiffs first sued a helicopter’s manufacturer and operator for injuries resulting from a crash. See
The Court also addressed this issue, albeit in á criminal case, in United States v. Ganadonegro,
Second, the evidence’s potential prejudice does not substantially outweigh this probative value. See 4 Jones on Evidence § 27:33 (7th ed. 2007)(“A pleading, answer to interrogatory or admission that comes within the agent admission exception to the hearsay rule still should be excluded if it is irrelevant, too prejudicial, or violates another rule of evidence unrelated to hearsay.”). As discussed above, the Puckett Complaint’s allegations have probative value for FedEx Ground. Absent the allegations, FedEx Ground will find it far more difficult to establish that Puckett and Payne were negligent or partly responsible for the collision. The likelihood of unfair prejudice, on the other hand, seems low and manageable. “The hiring of an attorney and the filing of a lawsuit are generally done with considerable thought and care. Absent unauthorized conduct on the part of the attorney, there is nothing unfair about having to explain one’s past lawsuits.” Williams v. Union Carbide Corp.,
Moreover, the Court finds E. Leon’s cited examples unpersuasive. E. Leon insists that, “[although defendant might argue that allegations in a complaint are admissions of a party opponent, that definition only takes them outside the scope of the definition of hearsay.” Motion at 7. That the statements are not hearsay, she says, “does not make them otherwise relevant or probative in excess of the prejudice they cause.” Motion at 7. She again cites to Greenwood v. Mepamsa, which explained, in a single sentence:
[W]hile the Greenwoods’ earlier allegations against AmeriGas may be eviden-tiary admissions and non-hearsay under Rule 801, Henry v. HealthPartners of S. Ariz.,203 Ariz. 393 , 396, ¶¶9-10,55 P.3d 87 , 90 (App.2003), we note that on this record the probative value of the prior allegations was minimal and the risk of prejudice substantial.
As TMC notes, an admission by a party opponent is, by its very nature, prejudicial to the party against whom it is admitted.... Although Henry was undoubtedly prejudiced by the trial court’s reading of the allegations, we cannot say that the jury was encouraged by thatreading to decide the case on the basis of emotion, sympathy, or horror.
Henry ex rel. Estate of Wilson v. Health-Partners of S. Ariz.,
IV. THE COURT WILL TAKE JUDICIAL NOTICE OF THE PUCKETT COMPLAINT, BUT NOT FOR ITS ALLEGATIONS’ TRUTH.
The Court will take judicial notice of the Puckett Complaint, but will not take judicial notice of its contents’ truth. As discussed above, the Court will admit the Puckett Complaint’s allegations on other grounds, so FedEx Ground will be able to “inquire as to its contents and averments during the cross-examination of Plaintiff.” Response at 14-15.
The Court will take judicial notice of the Puckett Complaint as a document. Rule 201 of the Federal Rules of Evidence allows the Court to take notice of facts that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b), (f). These facts include prior filings in related cases. See Hansen v. Harper Excavating, Inc.,
The Court may only consider noticed documents “to show their contents, not to prove the truth of matters asserted therein.” Response at 14. See Tal v. Hogan,
IT IS ORDERED that the requests in the Plaintiff’s Motion In Limine, filed November 16, 2015 (Doc. 76), are granted in part and denied- in part. The Court will admit evidence of Larry Payne’s prior statements for the limited purpose of showing their inconsistency. The Court will exclude evidence of E. Leon’s settlement with Puckett Transportation, Inc. and Payne. The Court will admit evidence of E. Leon’s allegations in the Complaint to Recover Damages for Wrongful Death, Punitive Damages and Other Damages, filed in state court May 16, 2012, filed in federal court July 25, 2012 (Doc. 1-1 in Leon v. Payne, et al., No. CIV-12-0814 JB/LAM (D.N.M.)). Finally, the Court will take judicial notice of the Complaint to Recover Damages for Wrongful Death, Punitive Damages and Other Damages, filed in state court May 16, 2012, filed in federal court July 25, 2012 (Doc. 1-1 in Leon v. Payne, et al., No. CIV-12-0814 JB/LAM (D.N.M.)), but will not take judicial notice of its contents’ truth.
Notes
. The Motion includes a request that the Court exclude evidence related to decedent Martin Leon's use or non-use of seat belts or other restraint systems. See Motion at 1-5. Defendant FedEx Ground Package System, Inc. (“FedEx Ground”) agreed to this request in its response. See Defendant FedEx Ground Package System, Inc.'s Response in Opposition to Plaintiff's Motion in Limine at 1, filed December 3, 2015 (Doc. 93)("Re-sponse"). The Court orally granted this part of the Motion at the hearing, and therefore will not discuss it in this Memorandum Opinion and Order. See Transcript of Hearing, taken December 22, 2015 (Doc. 128)("Tr.”).
. The Court draws on the Motion and the Response for its facts, because the Complaint omits certain essential background information, such as a description of Payne’s statements to investigators after the accident.
. As noted above, the Court will not discuss the Motion's request to exclude seatbelt/re-straint evidence because the parties have agreed to it.
. The 2011 restyling of the Federal Rules removed "admissions” from the language of rule 801(d) and uses instead the term “statements.” Fed. R. Evid. 801(d). This replacement was purposeful: “The term 'admissions’ is confusing because not all statements covered by the exclusion are admissions in the colloquial sense — a statement can be within the exclusion even if it 'admitted' nothing and was not against the party's interest when made.” Fed. R. Evid. 801, advisory committee’s note on 2011 Amendments.
Although the advisory committee made the commentary quoted in the text regarding the trustworthiness of "admissions by a party-opponent” before the 2011 amendments to the Federal Rules of Evidence, the analysis should not be different under the new 2011 restyling of the rules. Because the advisory committee’s purpose for the 2011 restyling was to- make the rules "more easily understood and to make style and terminology consistent through the rules,” and there was no “intent to change any result in any ruling on evidence admissibility,” the analysis applied before 2011 should still be useful for cases after the restyling. Fed. R. Evid. 801.
. United States v. Jones is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A)("Unpublished decisions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
. FedEx Ground also cites Greenemeier by Redington v. Spencer,
. E. Leon appears to concede this issue, but her statement is ambiguous. See Barber Motion at 7 ("Although defendant might argue that allegations in a complaint are admissions of a party opponent, that definition only takes them outside the scope of the definition of hearsay. It does not make them otherwise relevant or probative in excess of the prejudice they cause.”)(emphasis added). The Court will address whether the statements are hearsay, because E. Leon's statement does not squarely address the issue.
. This principle has applied since the 1920s. See Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter,
. There are two admissions: judicial admis- ' sions and evidentiary admissions.
A judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them. Although a judicial admission is not itself evidence, it has the effect of withdrawing a fact from contention. A statement made by counsel during the course of trial may be considered a judicial admission if it was made intentionally as a waiver, releasing the opponent from proof of fact.
Martinez v. Bally’s Louisiana, Inc.,