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Payne v. McHugh

United States District Court, W.D. Louisiana, Alexandria Division

October 31, 2017

MICHELE PAYNE, ET AL.
v.
HON. JOHN M. McHUGH, [1] SECRETARY of the ARMY MONTES

          PEREZ MAG. JUDGE

          MEMORANDUM ORDER

          DEE D. DRELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Before the court is Defendant's Motion in Liminefiled on October 23, 2017, in which Defendant seeks to preclude Plaintiff Michele Payne from introducing or referencing certain testimony and/or proposed exhibits. For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.

         1. Allegations or evidence regarding alleged discriminatory acts unrelated to plaintiffs claims and speculative claims of alleged race discrimination and retaliation.

         Defendant wishes to exclude "[statements by others regarding" alleged discrimination, exposure to a hostile work environment and/or retaliation. Though Defendant notes the "statements by others" includes Dena Perkins, Lynn Holaway, Karla Gralapp and employees of the United States Army, there is no certainty as to what any of the named witness or potential other witnesses will say. Defendant asserts that the testimony of Perkins, Holaway, and Gralapp is irrelevant given statements each made during her deposition; however, the court is without the full context of the depositions and its relation to the issues to make such a determination at this time.

         Further, Defendant's own statement that "the testimony described above and any similar testimony elicited by the Plaintiff is irrelevant to Plaintiffs claims here" shows the true breadth and vagueness of Defendant's objection. It is simply impossible for the court to anticipate the witnesses' testimony and whether it is relevant to Payne's claims. Accordingly, the defense may assert objections to testimony and evidence at the pertinent times throughout the trial.

         2. Any reference to the probable testimony of a witness who is absent, unavailable or not called to testify, or not allowed to testify

         Defendant argues Plaintiffs exhibits 7 and 11 should be excluded as they are hearsay testimony and irrelevant. Specifically, Defendant notes that the only person who was a party to the conversation transcribed and found at exhibit 7 is Michele Payne. Thus, the testimony is considered hearsay. Additionally, Defendant argues the transcription found at exhibit 11 is irrelevant, hearsay, and the proper means to introduce evidence of the phone call is through Dr. Patrick Hayes' testimony at trial.

         Plaintiffs exhibit 7 is a transcript of the "Impaired Provider Program Meeting of Complaintant, Michelle Payne." There is a signed certification attached which states in part:

I, Marvin E. Haynes, hereby certify that the foregoing hearing was taken before me at the time and place therein above stated; that said witnesses were first duly sworn by the Judge to testify the truth, the whole truth and nothing but the truth in answer to questions propounded; the hearing being reported by me and thereafter transcribed under my supervision; that he foregoing pages contain a true and correct transcription of the hearing of said witness and thus given to the best of my ability and understanding.

         Despite this "certification", the transcription appears to be that of a one-party consent recording of a meeting between Ms. Payne and Colonel Starkey. There is no date and time as to when the conversation occurred; there is no indication that Mr. Haynes was present at the meeting and/or was the party recording the conversation; and, there is no point within the transcript where the parties to the conversations were sworn to tell the truth and/or questioned under direct and cross examination. As such, the "certification" lacks merit and the transcription constitutes hearsay.

         Defendant further asserts that because none of the witnesses, other than Michele Payne, are listed as witnesses for trial, the use of the transcript for impeachment purposes is not at issue. In light of this stipulation, and for the aforementioned reasons, the court excludes Plaintiffs exhibit 7 as evidence in this trial.

         The court, at this time, is not excluding exhibit 11. Though Defendant asserts the transcribed telephone call "is not evidence of anything", we find that determination too early to make. Further, because Dr. Hayes will testify at trial, the document may serve as impeachment evidence. Accordingly, Defendant's request to exclude Plaintiffs exhibit 11 is denied at this time.

         3. Plaintiff must not be allowed to call witnesses described as witness to the alleged discrimination, harassment, and/or ...


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