United States District Court, S.D. Ohio, Eastern Division
MIAMI VALLEY FAIR HOUSING CENTER INC. Plaintiffs,
METRO DEVELOPMENT LLC, et al Defendants.
Kimberly A. Jolson Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion in
Limine to permit use of Expert Paul Sheriffs report and video
at trial or alternatively for additional time to retain a new
expert, (ECF No. 107), Plaintiffs Memorandum in Opposition
(ECF No. 113), and Defendants' Reply in Support (ECF No.
119.) For the reasons that follow, Defendants' Motion is
GRANTED IN PART and DENIED IN PART.
action arises out of alleged violations of the Fair Housing
Act, Title VIII of the Civil Rights Act of 1968, as amended
by the Fair Housing Amendments Act of 1988
("FHAA"), 42 U.S.C. §§ 3601 et
seq. Plaintiff alleges that Defendants violated and
continue to violate the accessibility requirements of the
FHAA, thereby discriminating against individuals with
disabilities. (Am. Compl. ¶¶ 1-2, ECF No. 48.)
Plaintiff bases the discrimination allegations on multifamily
dwellings located in and around Columbus including, Northpark
Place, Albany Landings, Four Pointe, Remington Woods,
Residences at Central Park, the Woods at Perry Lane, and
Winchester Park, claiming those dwellings were not designed
or constructed in conformity with the FHAA. (Id.)
in this case closed on December 8, 2017. A month prior to the
close of discovery, Defendants' expert witness, Paul
Sheriff ("Mr. Sherrif'), unexpectedly passed away.
Mr. Sheriffs deposition was scheduled to take place on
December 6. 2017. On December 4, 2017, Defendants
filed the instant motion requesting permission to use Mr.
Sheriffs expert report and video at trial or, alternatively,
for additional time to retain a new expert. (Mot. in Limine,
ECF No. 107.) Plaintiff opposes use of Mr. Sheriffs report or
video, but does not oppose granting Defendants additional
time to retain a new expert.
assert that Mr. Sherriff s Expert Report and incorporated
videos are admissible under the residual hearsay exception,
Federal Rule of Evidence 807. Plaintiff opposes admission of
Mr. Sheriffs report and video at trial for various reasons -
most importantly, because Plaintiff did not have a chance to
depose Mr. Sheriff for this case.
residual hearsay exception under Rule 807 provides that:
a hearsay statement is not excluded by the rule against
hearsay even if the statement is not specifically covered by
a hearsay exception . . . [if]: (1) the statement has
equivalent circumstantial guarantees of trustworthiness; (2)
it is offered as evidence of a material fact; (3) it is more
probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable
efforts; and (4) admitting it will best serve the purposes of
these rules and the interest of justice.
Evid. 807. Defendants bear the burden of proving that the
hearsay fits within Rule 8O7's residual hearsay
exception. United States v. Kendrick, 853 F.2d 492,
496 n.3 (6th Cir. 1988) ("the proponent of a hearsay
statement bears the burden of proving that the statement fits
squarely within a hearsay exception or exclusion.")
(citation omitted); Marcum v, Scioto Cty., No.
1:10-cv-790, 2014 U.S. Dist. LEXIS 112100, at *32 (S.D. Ohio
Aug. 13, 2014). The parties do not dispute that Mr. Sheriffs
expert report and videos are hearsay. Defendants, however,
contend that the Court should allow use of the report and
videos at trial based on the exceptional circumstances
surrounding this evidence through the residual hearsay
exception. Plaintiff objects to the admission of such
evidence, asserting that the report and videos lack the
necessary circumstantial guarantee of trustworthiness because
they have not been subjected to cross-examination. The Court
rely on Televisa, S.A. de C. V. v. Univision
Communications, Inc., 635 F.Supp.2d 1106 (CD. Cal. 2009)
in their argument that "courts have held that a
previously prepared expert report is admissible under
Evidence Rule 807 where an expert becomes unavailable during
the course of litigation." (Mot. in Limine at 4.) In
Televisa, however, the opposing party had the
opportunity to depose the expert on his report, Indeed the
court found that "[i]n light of [defendant's] prior
opportunity to cross-examine [the expert] during his sworn
deposition, there are sufficient guarantees of accuracy and
truthfulness here, and the need to cross-examine [the expert]
at trial regarding his credentials, methods, and the contents
of the Report would probably be superfluous."
Televisa, S.A., 635 F.Supp.2d at 1110.
argue that although Plaintiff was unable to depose Mr.
Sheriff in this case, Plaintiff deposed him in another matter
before this Court, Miami Valley Fair Hous. Ctr, Inc. v.
Preferred Real Estate Invs., LLC, No. 2:15-cv-02737
(S.D. Ohio). In Preferred, Mr. Sheriff presented a
report and video recordings of similar nature to the
recordings presented in this matter. Defendants further
contend that the video recordings and report are sufficiently
trustworthy as Plaintiff was able to depose Mr. Sheriff on
his methodology in the Preferred deposition. Mr.
Sheriff opined and videoed different properties for the
Preferred litigation. The Preferred
deposition, therefore, is not a sufficient guarantee of the
trustworthiness of the expert report and videos ...