Atwater v. Schwartz

In the United States District Court for the Southern District of Georgia Brunswick Division

GLORIA DENISE ATWATER and WILFRED LEE ATWATER, JR.,

Plaintiffs, No. 2:18—CV-146

v.

THOMAS SCHWARTZ and KIMBERLY SCHWARTZ,

Defendants.

ORDER Before the Court are two Motions for Summary Judgment, dkt. nos. 56, 57, the first filed by both Defendants Thomas and Kimberly Schwartz and the second filed by Defendant Kimberly Schwartz only. The motions have been fully briefed and are ripe for review. For the reasons below, Defendants’ joint Motion for Summary Judgment filed, dkt. no. 56, will be DENIED and Kimberly Schwartz’s individual Motion for Summary Judgment, dkt. no. 57, will be GRANTED. BACKGROUND This case arises out of an action by Plaintiffs Gloria and Wilfred Atwater alleging that Defendant Thomas Schwartz assaulted Gloria while she was helping Thomas complete errands in May 2018. At some time prior to the accident, Kimberly Schwartz had retained Gloria through a third-party agency to act as a caretaker for Thomas, Kimberly’s husband, who had allegedly been diagnosed with frontal lobe dementia. See Dkt. No. 20 16; see also Dkt. No.

57-1 10–12. In their pleading, Plaintiffs allege that Thomas had previously assaulted and/or battered at least one other caretaker but that Kimberly had failed to warn Gloria about Thomas’s violent proclivities. See Dkt. No. 20 16–18. On the day of the incident, Plaintiffs allege that Gloria was driving Thomas to lunch when “suddenly and without warning” he began to strike Gloria on the head with a closed fist. Id. 9. Plaintiffs allege that Thomas then got out of the vehicle and went to a nearby restaurant where Gloria later found him. See id. 12— 13. When she approached him, however, Thomas “began to strike and push” Gloria. Id. 14. As a result of these incidents, she contends she sustained significant and permanent physical and

mental injuries. Id. 19. Gloria filed suit, along with her husband, asserting causes of action for assault and battery (Count I), negligence (Count II), infliction of emotional distress (Count III), loss of consortium (Count IV), and punitive damages (Count V). Id. 21—38. In the first motion for summary judgment filed collectively by Thomas and Kimberly (the “Schwartz Motion”), Defendants seek to dismiss Counts I, III, and V on the basis that Thomas could not have formed the requisite malice or intent to commit the allegations of assault, battery, or infliction of emotional distress because of his mental condition. Defendants argue that under Georgia law, an alleged tortfeasor’s actions may not be

considered intentional when he is too incapacitated to know, understand, or intend his actions. They reason that Thomas’s frontal lobe dementia deprived him of the ability to understand right from wrong on the day of the incidents and therefore that he could not have maliciously harmed Plaintiffs. In the second motion for summary judgment filed by Kimberly Schwartz (the “Kimberly Motion”), Kimberly argues that the entire action against her should be dismissed because she owed no legal duty to Gloria on the day of the incident and therefore cannot be held liable to Gloria for the alleged actions of her husband. In response to the Schwartz Motion, Plaintiffs argue that Thomas’s alleged incompetence or incapacitation does not defeat

their specific claims to relief under Georgia law. Alternatively, they contend that the parties dispute whether Thomas’s dementia actually rendered him sufficiently incompetent to be unable to form the requisite intent for their claims. Moreover, as it concerns the Kimberly Motion, Plaintiffs argue both that Gloria had a special relationship with Kimberly by virtue of her employment as Thomas’s caregiver that created a duty to Gloria and that Kimberly breached that duty by failing to warn her of Thomas’s foreseeable assault. As explained below, there is a dispute of fact as to whether Thomas was so incapacitated as to render him unable to form the requisite intent under Georgia law. However, the undisputed facts

show that Kimberly Schwartz owed no legal duty to Gloria Atwater to prevent her injuries on the day of the incident. Thus, the Schwartz Motion will be DENIED but the Kimberly Motion will be GRANTED. LEGAL STANDARD Summary judgment “shall” be granted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” where the evidence would allow “a reasonable jury to return a verdict for the nonmoving party.” FindWhat Investor Group.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)).

A fact is “material” only if it “might affect the outcome of the suit under the governing law.” Id. Factual disputes that are “irrelevant or unnecessary” are not sufficient to survive summary judgment. Anderson, 477 U.S. at 248. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). The movant must show the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. See Anderson, 477 U.S. at 257.

The nonmovant may satisfy this burden in one of two ways. First, the nonmovant “may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan J. dissenting)). Second, the nonmovant “may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.” Id. at 1117. Where the nonmovant attempts to carry this burden instead with nothing more “than a repetition of his conclusional

allegations, summary judgment for the [movant is] not only proper but required.” Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed. R. Civ. P. 56(e)). DISCUSSION The first issue concerns whether Thomas Schwartz’s alleged dementia rendered him too incapacitated to form the requisite intent to commit the claims set forth in Counts I, III, and V. Though the parties vigorously dispute whether or the degree to which incapacity acts as a bar to these counts under Georgia law, the Court need not reach this specific question because Defendants have failed to establish as a matter of law that Thomas was sufficiently incapacitated on the day of the accident.

In support of the Schwartz Motion, Defendants argue that an alleged tortfeasor cannot be considered to have acted intentionally where “he is unable to know, understand, and intend his actions.” Dkt. No. 56-1 at 5 (citing State Farm Fire & Cas. Co. v. Morgan, 364 S.E.2d 62, 64 (Ga. 1987)). They point to testimony from Thomas’s physician, Dr. Douglas Scharre, who opines that Thomas was of such a mental state that he did not have the capacity to understand what he was doing on the day of the incident. Plaintiffs, however, identify contrasting evidence, including that Thomas still legally played a role in his business, see Dkt. No. 57-4 at 15-18,1 and that Thomas was able to make decisions for himself and carry on conversations with others, see

Dkt. No. 62 at 3 (citing Dkt. No. 62–4 at 3–4 and Dkt. No. 62-5).

1 Defendants challenge Plaintiffs’ contention that Thomas was capable of running his business, arguing that this allegation was cherry-picked from Kimberly’s deposition testimony and taken out of context. Defendants point out that, according to Kimberly’s testimony, Thomas had not worked in his store since 2013 and 2014, that the day-to-day business is run by a power of attorney, and that Thomas’s business-related decisions and rights were exercised with Kimberly’s assistance. See Dkt. No. 68 at 5. Though this may be true, Kimberly’s testimony does not clearly establish that Thomas has no role whatsoever in the business. To the contrary, she stated that Thomas still works at the business as “a consultant” and that he still has voting power within the company. Dkt. No. 57-4 at 15-18. Even these minor roles that Thomas allegedly plays in company operations would tend to belie the contention that he is so incapacitated that he cannot understand his own actions. This is not to suggest that these facts, when more fully fleshed out before a jury, would necessarily prove that Thomas could form the requisite intent on the day of the incident; rather, the record simply reveals a factual dispute concerning the degree of Thomas’s incapacity. Though the evidence Plaintiffs cite does not refute the existence of some mental deficits, it at least demonstrates an issue of fact with regard to whether Thomas was so incapacitated on the day of

the incident that he was “unable to know, understand and intend” his actions. Morgan, 185 Ga. App. at 379.2 Therefore, the Court cannot find, as a matter of law, that Plaintiffs’ claims are barred by Thomas’s mental deficits.3 As for the Kimberly Motion, Defendant Kimberly argues that Plaintiffs’ action against her must be dismissed because Plaintiffs have failed to establish a duty to protect Gloria from injuries allegedly inflicted by Kimberly’s husband. Plaintiffs concede that, as a general rule, a party has no duty under Georgia law to “control the conduct of third persons to prevent them from causing . . . harm to others.” Houston v. Bedgood, 263 Ga. App. 139, 141 (2003) (quoting Shortnacy v. North Atlanta Internal

Medicine, 252 Ga. App. 321, 325 (2001)). However, they argue that a duty nonetheless existed here under a special relationship

2 Defendants argue, for the first time in their sursur reply, that Plaintiffs have not offered any expert testimony to rebut Defendants’ expert. This is not necessary, however, to create an issue of fact where Plaintiffs have pointed to credible circumstantial evidence to suggest that Thomas was not so incapacitated on the day of the incident so as to defeat Plaintiffs’ intentional tort claims. See Greater Hall Temple Church of God v. Southern Mutual Church Insurance Company, No. 20-10544, 20 WL 3989081, at (11th Cir. July 15, 2020). 3 This decision is not meant to suggest that a jury could not ultimately conclude that Thomas was legally incapacitated on the day of the incident. Rather, the Court simply finds that the evidence before it on the question of Thomas’s incapacity is not such that it can reach a conclusion without the aid of a factfinder. The Court leaves for another day the question of how, if at all, a jury should be instructed about incapacity and whether incapacity impacts intentional tort claims. theory. Georgia courts have carved out two exceptions to the third- party duty rule, including where: (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

Shortnacy, 252 Ga. App. at 325 (quoting Landis v. Rockdale County, 212 Ga. App. 700, 703 (1994) (quotation marks omitted)). Neither exception applies here. Plaintiffs argue, under the first exception, that a special relationship existed between Kimberly and Thomas by virtue of “her employment as his full time caregiver.” Dkt. No. 63 at 4. In support they rely on Bradley Center, Inc. v. Wessner, in which the Georgia Supreme Court found that a private medical hospital could be held liable for the murder of the appellee’s mother by one of its patients. See 250 Ga. 199, 199, 202 (1982). There, the medical facility had released the patient under a weekend pass despite having learned that the patient would likely cause harm to appellee’ wife. See id. at 200. The court held that despite the general rule that an individual has no duty to control the conduct of third persons, the facility could nonetheless be held liable under an exception where a party “takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled.” Id. at 201-02 (quotations omitted). Plaintiffs argue that, like in Bradley, Kimberly assumed control of her husband by becoming his caretaker and overseeing his day-to-day affairs. See Dkt. No. 63 at 4. Critical to the

holding in Bradley, however, was that the facility had “authority to detain [the patient] from leaving for 48 hours while they attempt[ed] to persuade him to stay.” Bradley, 250 Ga. at 199. Indeed, subsequent Georgia decisions have held that, under the Bradley ruling, a duty arises only where the defendant has “control” over the acting party. Trammel v. Bradberry, 256 Ga. App. 412, 416-17 (2002) (quoting Ermutlu v. McCorkle, 203 Ga. App. 335, 336 (1992)). Such control arises where the defendant obtains some form of legal guardianship over the actor or, alternatively, there is “evidence of actual assumption of physical control.” See id. at 417; see also Houston, 263 Ga. App. at 142 (“[A]bsent legal authority in the physician to place restraints on the liberty of

his patient, the duty to control does not arise.”). Here, there is no evidence that Kimberly acted as Thomas’s legal guardian such that she could legally restrain him from taking some action, nor is there any evidence that she assumed complete physical control over Thomas. Rather, Plaintiffs simply point to evidence that Kimberly had say over Thomas’s day-to-day schedule such that Gloria was not to do anything with Thomas “without checking with [her] first.” Dkt. No. 63 at 4 (quotation omitted). This, however, is far different from physical control over Thomas such that Kimberly could physically restrain his movements.4 Alternatively, Plaintiffs seemingly argue that the second

exception to the third-party duty rule applies such that Kimberly owed a duty to protect Gloria by “inviting her into their home” and “requesting that she perform a service for the family.” Dkt. No. 63 at 7. Plaintiffs cite to no authority, however, for the proposition that hiring someone to perform caretaking services automatically generates a duty to protect that person from harm. Nor does Plaintiffs’ vague invocation of premises liability, by characterizing Gloria as an “invitee,” have any bearing on this case given that no injuries are alleged to have occurred in or near Kimberly’s home. Accordingly, the Court finds that Kimberly did not owe a duty to Gloria on the day of the accident in accordance with any special relationship theory.

CONCLUSION For the reasons above, the Schwartz Motion filed collectively by Defendants, dkt. no. 56, is DENIED and the Kimberly Motion filed solely by Defendant Kimberly Schwartz, dkt. no. 57, is GRANTED.

4 Plaintiffs also seem to suggest that Thomas’s dementia gave Kimberly de facto control over him “as a result of his diminished capabilities.” Dkt. No. 63 at 4. Assuming, without deciding, that Thomas was so mentally deficient such that he could be controlled—a fact which seemingly contradicts Plaintiffs’ position in Schwartz motion discussed above—this fact does not establish that Kimberly did in fact assume physical control over Thomas. Defendant Kimberly Schwartz is hereby DISMISSED from this action. The case against Thomas Schwartz will proceed. SO ORDERED, this 2nd day of September, 2020.

_ HON. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION

GLORIA DENISE ATWATER; and WILFRED LEE ATWATER, JR.,

Plaintiffs, CIVIL ACTION NO.: 2:18-cv-146

v.

THOMAS SCHWARTZ,

Defendant.

O RDE R This matter is before the Court on Defendant’s Motion in Limine. Doc. 77. In his Motion, Defendant asks this Court to exclude eight categories of evidence at trial. Id. Plaintiff has filed a Response, objecting only to Motion in Limine Number 7 and Motion in Limine Number 8. Doc. 82. Defendant filed a Reply. Doc. 84. For the reasons discussed below, this Court GRANTS in part and DENIES in part Defendant’s Motion. Both Plaintiffs and Defendant often cite to Georgia case law and statutes in their briefing. In diversity cases, “the admissibility of evidence is a procedural issue, and therefore is governed by the Federal Rules of Evidence.” Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997). However, it is appropriate to cite Georgia law on a substantive issue, like damages. See Complete Concepts, Ltd. v. Gen. Handbag Corp., 880 F.2d 382, 389 (11th Cir. 1989). The parties are reminded to cite only controlling authority moving forward. For procedural evidentiary issues, Georgia law is only relevant as persuasive authority or to the extent the Federal Rules of Evidence or the federal courts deem state law relevant to an evidentiary issue. Moreover, the parties’ citations to older Georgia case law often undermines their respective positions, given that many of the cases and rules cited predate Georgia’s adoption of a “new” evidence code, effective 2013, which abrogates or modifies earlier Georgia evidentiary jurisprudence in many respects. Chrysler Grp., LLC v. Walden, 812 S.E.2d 244, 252 (Ga. 2018).

With all this in mind, the Court addresses each of Defendant’s eight enumerated motions in limine. I. Defendant’s Motion in Limine No. 1 Defendant asks this Court “to prevent all witnesses, whether lay or expert, from commenting on the testimony, either deposition or trial, of other witnesses or the veracity of other witnesses.” Doc. 77 at 1. In the Eleventh Circuit, weighing the credibility of witnesses is generally an issue left for the jury. See Hibiscus Assocs. v. Bd. of Trs. of the Policemen & Firemen Ret. Sys. of the City of Detroit, 50 F.3d 908, 919 (11th Cir. 1995); Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529, 536 (5th Cir. 1974). Further, Plaintiffs do not oppose exluding this evidence at trial. Doc. 82 at 1 n.1. For these reasons, the Court GRANTS

Defendant’s Motion in Limine No. 1 as unopposed. II. Defendant’s Motion in Limine No. 2 Defendant requests the Court prohibit Plaintiffs “from seeking speculative damages for which the Plaintiffs have failed to present the requisite evidence to support.” Doc. 77 at 3. In particular, Defendant points to future medical expenses and lost earnings as categories of evidence which require specific proof. Id. at 3–5. Georgia law governs damages issues because they are substantive. Complete Concepts, 880 F.2d at 389 (“In a diversity case, the determination of damages constitutes a substantive issue.”). In general, Georgia law requires the claimant to show the amount of loss with a reasonable degree of certainty. Hayek v. Chastain Park Condo. Ass’n, Inc., 764 S.E.2d 183, 186 (Ga. Ct. App. 2014). Georgia law requires a plaintiff to calculate future medical expenses with a reasonable degree of certainty. Lester v. S. J. Alexander, Inc., 193 S.E.2d 860, 861 (Ga. Ct. App. 1972); see Whitley v. Ditta, 434 S.E.2d 108, 110 (Ga. Ct. App. 1993) (“A plaintiff seeking to

recover special damages for medical expenses has the burden of proving his losses in such manner as can permit calculation thereof with a reasonable degree of certainty.”); S. Airways, Inc. v. Dross, 291 S.E.2d 93, 93 (Ga. Ct. App. 1982) (holding jury charge on future medical expenses was error when there was no basis to calculate the damages). If a plaintiff bases his calculation solely on guess work, the evidence may not be admissible. Lester, 193 S.E.2d at 861. Likewise, “[l]ost wages and earnings are recoverable where the evidence shows the amount of the loss with reasonable certainty and the evidence premits the jury to determine the amount of the loss without speculation or guesswork.” Singleton v. Phillips, 494 S.E.2d 66, 67 (Ga. Ct. App. 1997); Herr v. Withers, 515 S.E.2d 174, 176 (Ga. Ct. App. 1999). Plaintiffs do not oppose excluding this evidence at trial. Doc. 82 at 1 n.1. For these reasons, the Court GRANTS

Defendant’s Motion in Limine No. 2 as unopposed. III. Defendant’s Motion in Limine No. 3 Defendant requests that “any and all questions, testimony, or evidence regarding any and all insurance maintained by this Defendant be excluded.” Doc. 77 at 6. Federal Rule of Evidence 411 provides evidence of insurance is “not admissible to prove whether the person acted negligently or otherwise wrongfully.” However, “the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.” Fed. R. Evid. 411. Defendant appears to merely request the Court apply Federal Rule of Evidence 411. The Court will, of course, apply the Federal Rules of Evidence at trial. Plaintiffs do not oppose excluding this evidence. Doc. 82 at 1 n.1. For these reasons, the Court GRANTS Defendant’s Motion in Limine No. 3 as unopposed. Evidence of insurance may still be admissible for a purpose other than proving wrongdoing, as above discussed. IV. Defendant’s Motion in Limine No. 4

Defendant asks the Court to exclude “any and all testimony given by lay witnesses regarding medical issues or medical questions.” Doc. 77 at 7. Federal Rule of Evidence 701(c) states a lay witness may not give an opinion “based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Federal Rule of Evidence 702 then lists the requirements for testimony of an expert with qualifying “knowledge, skill, experience, training, or education.” Medical opinions would typically fall within the scope of Rule 702 testimony. Thus, a lay witness would not normally be permitted to give a medical opinion under the Federal Rules. Defendant appears to only request that the Court apply the Federal Rules of Evidence, which the Court will do at trial. Plaintiffs do not oppose excluding this evidence. Doc. 82 at 1 n.1. For these reasons, the

Court GRANTS Defendant’s Motion in Limine No. 4 as unopposed. This ruling does not necessarily prohibit lay witnesses from testifying about facts related to medical issues, to the extent that testimony is based on the witnesses’ first-hand personal knowledge. See Fed. R. Evid. 602 (providing witnesses may testify on matters based on personal knowledge). V. Defendant’s Motion in Limine No. 5 Defendant requests the Court exclude “any and all testimony or evidence concerning the financial circumstances of the parties.”1 Doc. 77 at 8. Because the party-wealth common law

1 Defendant cites cases discussing Georgia’s common law bar of wealth evidence. Doc. 77 at 8. The Georgia Supreme Court has strongly indicated this common law rule may no longer exist after Georgia’s adoption of the new evidence code in 2013. Chrysler, 812 S.E.2d at 252. Even so, in Chrysler, rule cited by Defendant may no longer be in force, the Court treats Defendant’s Motion in Limine No. 5 as a relevance argument. See Chrysler, 812 S.E.2d at 252 (characterizing Georgia’s party-wealth rule as a “rule of relevance” and reasoning Federal Rules 402 ad 403 applied rather than the common law rule). Federal Rule of Evidence 401 states evidence is

relevant if (1) “it has any tendency to make a fact more or less probable than it would be without the evidence” and (2) “the fact is of consequence in determining the action.” Plaintiffs have not set forth why this evidence is relevant to proving a fact of consequence in this case. Doc. 82 at 1 n.1. Further, the Court may exclude evidence if the probative value is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. “Comments on the wealth of a party have repeatedly and unequivocally been held highly prejudicial, and often alone have warranted reversal.” Whittenburg v. Werner Enterprises Inc., 561 F.3d 1122, 1130 n.1 (10th Cir. 2009); see Chrysler, 812 S.E.2d at 252 (collecting cases and reasoning the federal courts agree a party’s wealth is generally inadmissible unless directly relevant to an issue in the case). Plaintiffs do not oppose excluding this evidence. Doc. 82 at 1 n.1. Because Plaintiffs

have not explained the relevance of this evidence, the Court GRANTS Defendant’s Motion in Limine No. 5 as unopposed. VI. Defendant’s Motion in Limine No. 6 Defendant requests “the Court exclude any and all testimony or evidence concerning settlement discussions between the parties.” Doc. 77 at 9. Federal Rule of Evidence 408 provides evidence of compromise offers and negotiations is generally inadmissible to prove the validity or amount of a claim or to impeach. However, “[t]he court may admit this evidence for

the Supreme Court concluded evidence of a party’s wealth will generally be inadmissible under Federal Rules 402 and 403 and their analogues in the Georgia Evidence Code. Id. Regardless, a state common law rule would likely not control, and the Court will only apply the Federal Rules. Heath, 126 F.3d at 1396. another purpose, such as proving a witness’s biase or prejudice” or “negating a contention of undue delay.” Fed. R. Evid. 408(b). Defendant appears to only request the Court apply Federal Rule of Evidence 408. The Court will apply the Federal Rules of Evidence at trial. Plaintiffs do not oppose excluding this evidence. Doc. 82 at 1 n.1. For these reasons, the

Court GRANTS Defendant’s Motion in Limine No. 6 as unopposed. This ruling does not prevent the Court from admitting evidence concerning settlement discussions for another purpose, as above discussed. VII. Defendant’s Motion in Limine No. 7 Defendant requests “the Court exclude any and all testimony or evidence concerning prior and subsequent dissimilar acts by this Defendant as such would constitute impermissible character evidence.” Doc. 77 at 10. In particular, Defendant believes Plaintiffs will attempt to admit evidence regarding an incident where Defendant pushed his spouse. This case concerns an incident where Defendant allegedly struck Ms. Atwater. Doc. 1 at 2. Defendant argues Plaintiffs will attempt to introduce this evidence to show Defendant acted in accordance with his

violent character when he struck Ms. Atwater and for no other purpose. Doc. 77 at 11; Doc. 84 at 2. In their Response, Plaintiffs assert evidence of this “substantially similar” incident “is directly relevant to [Defendant’s] violent tendencies . . . .” Doc. 82 at 2. Plaintiffs further argue evidence of this incident is not offered to prove Defendant acted in accordance with a character trait, but “rather to establish that he has been physically violent in the past with Defendant Kimberly Schwartz and to establish that Ms. Schwartz had knowledge of Mr. Schwartz’s violent tendencies.” Id. In his Reply, Defendant argues Plaintiffs’ stated purpose of showing Ms. Schwartz’s knowledge is not relevant to this case because she has been dismissed as a defendant. Doc. 84 at 3. Defendant also states Plaintiff has not shown the incident is sufficiently similar to be admissible. Id. at 3–4.

Federal Rule of Evidence 404(b)(1) provides, “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” This Rule also states such evidence may be admissible for a purpose other than showing a person acted in accordance with a character trait on a particular occasion. Fed. R. Evid. 404(b)(2). For example, the evidence may be admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. Even if the evidence qualifies for one of these listed exceptions, the evidence must still meet the relevancy requirements of Rules 401 and 402. “Evidence is relevant if . . . it has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence.” Fed. R. Evid. 401.

The incident where Defendant pushed Ms. Schwartz appears to be offered only to show Defendant acted in accordance with his violent character when he allegedly struck Ms. Atwater. In fact, Plaintiffs concede this prior incident is “directly relevant to [Defendant’s] violent tendencies” and “to establish that he has been physically violent in the past.” Doc. 82 at 2. Simply put, these reasons are alternative ways to describe the exact type of evidence prohibited by Federal Rule of Evidence 404(b)(1). The only alternative reason Plaintiffs have set forth is to show Ms. Schwartz’s knowledge of Defendant’s violent tendencies. Defendant correctly argues this reason is irrelevant to this case. This Court has already dismissed Ms. Schwartz as a defendant. Thus, her knowledge of Defendant’s violence is not a fact of consequence in this case. Fed. R. Evid. 401. Evidence of the prior incident does not meet the relevancy requirements of Rules 401 and 402 if offered only to show Ms. Schwartz’s knowledge. Plaintiffs have not set forth any alternative use for the evidence of this prior incident, nor have Plaintiffs explained any alternative reason why Ms. Schwartz’s knowledge is a fact of consequence.

Therefore, the evidence should be excluded. Plaintiffs’ and Defendant’s discussion of whether the prior incident is “substantially similar” is misplaced. Doc. 77 at 11; Doc. 82 at 3; Doc. 83 at 3–4. The parties only cite Georgia cases or none at all when discussing this issue.2 Doc. 77 at 11; Doc. 82 at 3; Doc. 83 at 3–4. Under the Federal Rules, the similarity of a prior incident may show whether the incident meets one of the exceptions listed in Rule 404(b)(2), such as knowledge, absence of mistake, or lack of accident.3 But, regardless of similarity, Plaintiffs have not demonstrated that evidence of incident involving Ms. Schwartz would be offered for any of the alternative purporses listed in Rule 404(b)(2).

2 Defendant does cite one Middle District of Georgia case, but the case focuses on a property owner’s knowledge of prior substantially similar criminal acts under Georgia law rather than any specific evidentiary issue. Hendrickson v. Ga. Power Co., 80 F. Supp. 2d 1374 (M.D. Ga. 2000). Hendrickson does not provide meaningful guidance on the issues in this case.

3 The Eleventh Circuit Court of Appeals also recognizes a “substantial similarity” doctrine concerning the admissibility of evidence of prior accidents, where that evidence is offered to show “notice, magnitude of the danger involed, the [party’s] ability to correct a known defect, the lack of safety for intended uses, strength of a product, the standard of care, and causation.” Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997) (quotation and citation omitted). In order to admit evidence of prior incidents for one of these purposes, the proponent must show the prior accidents or incidents are substantially similar to the one at issue. Id.; Jaquillard v. Home Depot U.S.A., Inc., No. CV 410-167, 2012 WL 527418, at (S.D. Ga. Feb. 16, 2012). However, the parties have not demonstrated the Eleventh Circuit’s “substantial similarity” doctrine—which is typically applied in product liability and dangerous conditions cases—should be applied in this case. Moreover, the only purpose Plaintiffs have suggested for presenting this evidence that would align with the Eleventh Circuit’s “substantial similarity” doctrine is notice on the part of Ms. Schwartz. The Court has already explained above that Ms. Schwartz’s knowledge is not relevant to the surviving claims in this case. Therefore, the Eleventh Circuit’s “substantial similarity” doctrine does not support admission of evidence of the prior incident in this case. For these reasons, the Court GRANTS Defendant’s Motion in Limine No. 7 to the extent Defendant requests the exclusion of evidence of the incident where Defendant pushed Ms. Schwartz. VIII. Defendant’s Motion in Limine No. 8

Defendant requests “the Court exclude any and all argument, questions from counsel elicited to the Plaintiff, or testimony from witnesses regarding alleged out-of-court statements made to the Plaintiff, regarding an alleged prior incident of battery committed by this Defendant against a prior caregiver.” Doc. 77 at 11. In his initial Motion, Defendant argues a statement made by an unspecified person to Plaintiff Ms. Atwater about an attack is inadmissible hearsay. Doc. 77 at 12. In their Response, Plaintiffs assert the statement at issue was made by Ms. Schwartz to Defendant’s doctor for the purposes of obtaining medical treatment for Defendant and is contained in Defendant’s medical records. Doc. 82 at 3. Plaintiffs argue that, because Ms. Schwartz made the statement for purposes of obtaining medical treatment, the statement falls

under a hearsay exception under Federal Rule of Evidence 803(4). Doc. 82 at 3–4. Plaintiff also argues Ms. Schwartz’s statements may be used for impeachment if Ms. Schwartz denies she had knowledge of the incident. Id. at 4. In his Reply, Defendant shifts away from arguing the disputed statement is inadmissible hearsay and argues for the first time the disputed statement is inadmissible character evidence. Doc. 84 at 4. Indeed, the portion of Defendant’s initial Motion regarding “Motion in Limine No. 8” makes no reference to character evidence. Doc. 77 at 11–12. In his Reply, however, Defendant argues evidence of the disputed statement will only be offered as character evidence and argues Ms. Schwartz’s knowledge is not relevant to this case. Doc. 84 at 4. “A court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds.” Stewart v. Hooters of Am., Inc., No. 8:04-CV-40-T-17, 2007 WL 1752873, at (M.D. Fla. June 18, 2007) (citing Luce v. United States, 469 U.S. 38, 41 (1984)). Therefore, the Court should deny a motion in limine if it cannot fully determine

whether the evidence should be excluded prior to trial. Id. At the outset, it is unclear if the parties are even discussing the same statement. Defendant asks the Court to exclude a verbal statement that was allegedly made to Plaintiff Ms. Atwater (by some identified individual) about a prior attack committed by Defendant on a caregiver. Plaintiffs, other hand, refer to a statement made by Ms. Schwartz to Defendant’s doctor, which is reflected in Defendant’s medical records. Because the parties’ briefing on this topic is ambiguous, the Court is not able to resolve Defendant’s hearsay argument or Plaintiffs’ argument invoking the hearsay exception contained in Federal Rule of Evidence 803(4). Furthermore, Defendant raises an entirely new character evidence argument in his Reply to which Plaintiffs have not responded.4 Doc. 84 at 4.

Granting the Motion in Limine at this stage would be premature due to these ambiguities. The Court cannot say the evidence discussed in Motion in Limine No. 8 is inadmissible on all potential grounds. Stewart, 2007 WL 1752873, at . Therefore, the Court DENIES Defendant’s Motion in Limine No. 8 as premature. The Court will consider any objections

4 The Court acknowledges the character evidence analysis regarding the statement at issue in Defendant’s Motion in Limine No. 8 and the evidence at issue in Defendant’s Motion in Limine No. 7 may be identical. But in light of the parties’ ambiguous briefs, it is inappropriate to make that assumption at this time. regarding these pieces of evidence at trial. SO ORDERED, this 9th day of December, 2020.

BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

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