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Grimes v. Employers Mut. Liability Ins. Co. - 73 F.R.D. 607 (D. Alaska 1977)

Rule:

While there is little direct authority on the hearsay question, the general conclusion is that motion pictures are not hearsay and are admissible if subject to cross-examination through the witness who verifies and uses the film. The explanation given for this conclusion is that the verifying witness is merely using the film as a means of communicating his observations. Even if the film has been projected prior to trial, the film is no more hearsay than the testimony of a witness who has talked about the observed events prior to trial.

Facts:

Plaintiff Thomas I. Grimes was injured in an industrial accident. He later filed a lawsuit in federal district court against defendants Employers Mutual Liability Insurance Company of Wisconsin (hereinafter "Employers") and H.C. Mason Associates, Inc. During pretrial, Grimes filed a motion in limine seeking a pretrial ruling on the admissibility of: (1) a film depicting Grimes performing various daily activities and conducting clinical tests ("Film"), and; (2) two television commercials, "Wausau Men" and "Physical Exam," which advertised safety services allegedly provided by Employers. Employers objected to the admission of the Film as irrelevant, prejudicial, selective and cumulative, and hearsay. Employers also objected to the introduction of the commercials as irrelevant, prejudicial, and hearsay. 

Issue:

Was Grimes' proposed evidence admissible?

Answer:

Yes, in part.

Conclusion:

The court ruled, inter alia, that the Film was relevant to the issue of the nature and extent of damages, and thus Employers' relevancy objection was frivolous. The scenes in the Film of Grimes with his daughter and with his quadriplegic brother served little purpose other than to create sympathy for Grimes, and the prejudicial effect of those scenes outweighed the probative value of the evidence. However, other scenes in the Film of Grimes performing daily functions and performing clinical tests had a probative value greater than any prejudice which might result. Those portions of the Film were admissible under Fed. R. Evid. 803(24), subject to verification and cross-examination. The court further ruled that the television advertisements were admissible under Fed. R. Evid. 403 as they were highly probative and there was little probability of undue confusion or prejudice. In addition, the commercials were not hearsay because they were admissions of a party opponent permitted under Fed. R. Evid. 801(d)(2).

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