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Fischer v. Klescewski

United States District Court, D. Colorado

April 27, 2017

CHRISTOPHER FISCHER, Plaintiff,
v.
DREW KLESCEWSKI; NICHOLE BACKUS; and H&M HENNES & MAURITZ LP (“H&M”), Defendants.

          ORDER ON MOTIONS IN LIMINE

          William J. Martínez United States District Judge.

         Before the Court is Defendants' Motion in Limine (ECF No. 123) and Plaintiff's Motion in Limine (ECF No. 124). The Court rules as follows on these motions.

         I. PLAINTIFF'S MOTION (ECF No. 124)

         A. Alleged Evidence of a “Pattern of Violent Conduct”

         Plaintiff Christopher Fischer (“Fischer”) argues for the exclusion of six subjects or categories of evidence which he claims Defendants intend to use to “establish a ‘pattern of violent conduct' by Mr. Fischer.” (ECF No. 124 at 4.) Those subjects or categories are:

1. Fischer's arrest in Boulder County when he was a college freshman in 1991, and his subsequent charge for possessing burglary tools. He eventually pled to a nonviolent misdemeanor, resulting in a deferred judgment and sentence that Fischer successfully completed. (Id. at 1.)
2. A 1993 summons “for a minor non violent misdemeanor offense. There was never a conviction, charges were dismissed and the case was sealed.” (Id. at 2.)
3. A 2009 citation in Boulder Municipal Court “for allegedly throwing a soda pop can at a meter maid.” Apparently the meter maid could not identify who threw the can and the charges were dismissed. (Id.)
4. An incident where Fischer argued with a member of a band (apparently a rock band) with whom Fischer plays, leading the other band member to break Fischer's keyboard. (Id.)
5. An incident in which Fischer discovered that an independent contractor working for Fischer's company was “goofing around and playing video games instead of working.” (Id.) Fischer dismissed the contractor who in turn assaulted Fischer, leading to felony charges against the contractor and, ultimately, three misdemeanor convictions after a jury trial. (Id. at 2-3.)
6. Portions of the testimony of “the Fischers' physician, Dr. Sanders, who is treating both Christopher and Jessica Fischer for Adult Attention Deficit Disorder.” (Id. at 3.) “There is an occasional reference to marital squabbling (maybe 3-4 instances), sometimes with raised voices, in Dr. Sanders' [treatment] notes. However, there is no evidence of domestic violence of any kind.” (Id.)[1]

         B. Potential for Rebuttal or Impeachment Evidence

         Defendants respond that they do not intend to introduce any evidence corresponding to Fischer's items 1-5 unless Fischer “open[s] the door and put[s] [his] nature for peacefulness at issue by arguing that his demeanor is inconsistent with confrontation, aggressive behavior, or hostility.” (ECF No. 129 at 2.) The Court nonetheless finds that items 1-3 have no bearing, even in an impeachment or rebuttal context, on Fischer's disposition toward confrontation, aggressive behavior, or hostility; or, at a minimum, they could incite unfair prejudice and, in the context of item 3, undue delay given the likelihood that testimony about that incident may devolve into an ancillary mini-trial. See Fed. R. Evid. 403. Thus, Fischer's motion in limine is granted as to items 1-3.

         The Court can make no definitive ruling on items 4 and 5 at this time, but provides the following guidance. If (a) Fischer or any of his witnesses “open the door” through testimony that his demeanor is inconsistent with Defendants' account of his behavior on the night in question, and (b) the incidents at issue in item 4 and/or item 5 featured words or conduct on Fischer's part that could reasonably be viewed as provoking the other party's violent reaction, then testimony about either or both of these incidents may be an appropriate inquiry on cross-examination “into relevant specific instances of [Fischer's] conduct.” Fed.R.Evid. 405(a). Because the Court does not know whether Fischer intends to open the door, and the Court does not know any specifics about Fischer's behavior during the incidents described in items 4 and 5, any further ruling must await the evidence as it actually comes in at trial.

         C. Dr. Sanders's Testimony

         As for Fischer's item 6, concerning Dr. Sanders's testimony, Defendants say that they “object to . . . the exclusion of Dr. Sanders' testimony as a fact witness, because this evidence is probative of damages and does not constitute improper opinion or character evidence.” (ECF No. 129 at 3.) But this is not the basis of Fischer's motion in limine. He does not seek to exclude Dr. Sanders as a fact witness. To the contrary, Fischer states that Defendants “can only use [Dr. Sanders] as a fact witness.” (ECF No. 124 at 5.) Fischer simply wants to prevent Defendants from using Dr. Sanders's knowledge of Christopher and Jessica Fischer's “squabbles” as evidence of ...


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