Number range CHAPTER **UNITED STATES DISTRICT COURT**

**EASTERN DISTRICT OF LOUISIANA**

**)**

**THE UNITED STATES OF AMERICA, )**

**)**

**Plaintiff, )**

**)**

**v. ) CIVIL ACTION**

**)**

**)**

**DREW B. MORVANT, D.D.S., ) No. 93-3251**

**) Section K (1)**

**and )**

**)**

**DREW B. MORVANT, )**

**A PROFESSIONAL DENTAL CORPORATION,)**

**)**

**Defendants. )**

**)**

**)**

**MEMORANDUM IN SUPPORT OF PLAINTIFF\'S MOTION IN LIMINE TO**

**EXCLUDE INFORMATION REGARDING HIV STATUS, MEDICAL HISTORY,**

**AND SEXUAL HISTORY**

Plaintiff, the United States, submits this memorandum in support of its
Motion in Limine to bar inquiries regarding a witness\' HIV status,
medical history, sexual history, sexual orientation, and prior sexual
abuse. As discussed fully below, such information is irrelevant to the
material issues in this case and should be excluded under Fed. R. Evid.
401 and 402. In addition, even if the information were relevant, its
disclosure would be so unfairly prejudicial as to warrant its exclusion
under Fed. R. Evid. 403. Such inquiries should also be barred because
the disclosure of that information will have a chilling effect on the
enforcement of the Americans with Disabilities Act (\"ADA\").

I. [BACKGROUND]{.underline}

The government contends that Defendants\' blanket policy of refusing to
treat persons with HIV and AIDS, including Ismael Pena and xxxxxxxx,
constitutes a violation of Title III of the Americans With Disabilities
Act (\"ADA\"), 42 U.S.C. §§ 12181-89.

The government alleges that the following facts are true. Ismael Pena
(\"Pena\") and Patrick Dunne (\"Dunne\"), who were life partners for 22
years, were long-time dental patients of Defendant Morvant.
[See]{.underline} Exhs. 1, 4. In November 1992, Dunne went to Morvant\'s
office to have an occlusal night guard fitted. [See]{.underline} Exh. 1.
During that visit, Dunne informed Morvant that Pena had AIDS.
[Id.]{.underline}

In February 1993, Pena called Morvant\'s office to schedule a dental
cleaning. [See]{.underline} Exhs. 1, 2. Later that day, Pena and Morvant
had a telephone conversation, during which Morvant told Pena that,
because he had AIDS, he could no longer be treated at Morvant\'s office.
[See]{.underline} Exhs. 2, 3. Pena was told that he should instead go to
another dentist, Dr. Creely Sturm. [See]{.underline} Exh. 2. Pena did
not go to Dr. Sturm but chose, instead, to have his teeth cleaning
performed at the offices of Dr. Hebert. [See]{.underline} Exhs. 5, 6.

xxxxxxxx and his wife, xxxxxxxx, have lived in New Orleans since 1992.
[See]{.underline} Exh. 10. xxxxxxxx worked in the same building that
housed Morvant\'s practice. [See]{.underline} Exh. 7. In June 1993, he
made an appointment to have his teeth cleaned at Morvant\'s office.
[See]{.underline} Exh. 7. When he arrived at the office, he filled out
some papers and was then taken into an operatory by Stacey Brown, a
dental hygienist. [See]{.underline} Exhs. 7, 8. Brown took an oral
medical history from xxxxxxxx, but did not ask him if he had HIV or
AIDS. [See]{.underline} Exhs. 7, 8. At the end of the oral history, she
asked xxxxxxxx if there was anything else about his health that they
should know. [See]{.underline} Exhs. 7, 8. xxxxxxxx told her that he was
HIV-positive. [See]{.underline} Exhs. 7, 8. Brown then left the
operatory and told Morvant of xxxxxxxx\'s status. [See]{.underline}
Exhs. 2, 7, 8. Morvant instructed her to tell xxxxxxxx that, because
xxxxxxxx was HIV-positive, he could not be treated at their offices, and
that he should make an appointment with Dr. Creely Sturm.
[See]{.underline} Exhs. 2, 7, 8. xxxxxxxx subsequently visited the
offices of Dr. Sturm, where he had his teeth cleaned. [See]{.underline}
Exhs. 5, 7, 9.

Although the parties have not identified which fact witnesses they will
call at trial, fact discovery closed on January 3, 1995, and depositions
of all fact witnesses are now complete.

If this case proceeds to trial, the government likely will call the
following persons, among others, in order to prove that the Defendants
unlawfully discriminated against Pena: Dunne, Pena\'s life partner;
Kenneth Witkowski and Philip Dynia, two friends of Pena; Ruby Pena,
Pena\'s mother; Celinda Dyess, Pena\'s sister; Father Henry Willenborg,
a religious counselor; Paula Norris, Pena\'s therapist; and various
persons employed by Dr. Morvant. With respect to establishing
discrimination against xxxxxxxx, the government likely will call the
following persons: xxxxxxxx; his wife, xxxxxxxx; Carol Lindsey,
xxxxxxxx\'s therapist; and various persons employed by Morvant.

During the course of discovery in this action, Defendants questioned
some of the government\'s witnesses about their sexual history, their
sexual orientation, their HIV status, the manner in which Pena and
xxxxxxxx contracted HIV, the circumstances under which they learned Pena
or xxxxxxxx were HIV-positive or had AIDS, and the nature of their
sexual relationship, if any, with Pena or xxxxxxxx. The Defendants
sought this information on the grounds that it might somehow lead to the
discovery of bias. [See]{.underline} Memorandum in Opposition to
Plaintiff\'s Motion for Protective Order. The Defendants likely will
seek to use some of this information at trial.

More specifically, the witnesses were asked the following types of
questions. Patrick Dunne, Pena\'s partner, was asked about the following
matters: his sexual orientation; the nature of his relationship with
Pena; whether he was Pena\'s lover; when he first became aware that Pena
was HIV-positive; and when Pena first told him he was HIV-positive.
[See]{.underline} Exh. 11.

Kenneth Witkowski and Philip Dynia, two friends of Pena, were asked
whether they were HIV-positive. [See]{.underline} Exhs. 12, 13. Dynia
answered in the negative. [See]{.underline} Exh. 12. Witkowski refused
to answer the question. [See]{.underline} Exh. 13. The government
subsequently submitted a declaration of Witkowski which indicated that
he did not know his HIV status. [See]{.underline} Exh. 14. Defense
counsel also asked Dynia whether he had ever been Pena\'s lover.
[See]{.underline} Exh. 12.

xxxxxxxx was asked about a number of matters, including sexuality issues
raised during treatment by his psychologist, Dr. Melville; his sexual
molestation as a young boy; his sexual orientation; sexual addiction;
how he contracted the HIV virus; and his marital situation.
[See]{.underline} Exh. 15.

xxxxxxxx, xxxxxxxx\'s wife, was asked a variety of questions, including
whether xxxxxxxx told her how he contracted the disease and her HIV
status. [See]{.underline} Exh. 10.

Pena\'s mother and sister were both asked whether they knew how Pena
contracted the HIV virus. [See]{.underline} Exhs. 16, 17. His mother was
also asked about Dunne\'s HIV status and how she and her husband felt
about their son\'s sexual orientation. [See]{.underline} Exh. 17.

**II. [ARGUMENT]{.underline}**

A. **Information Regarding HIV Status, Medical History, and Sexual
History is Irrelevant to the Issues in this Case**[^1]

In order to prevail in this case, the government must prove that the
Defendants own and operate a place of public accommodation; that Pena
and xxxxxxxx are persons with disabilities with the meaning of the ADA;
and that Defendants denied Pena and xxxxxxxx dental treatment on the
basis of their HIV status.

The Court has already determined that Defendants Dr. Morvant and Drew B.
Morvant, A Professional Dental Corporation, own and operate a place of
public accommodation within the meaning of the ADA. [United States v.
Morvant]{.underline}, 843 F. Supp. 1092, 1094 (E.D. La. 1994). In
addition, it is agreed between the parties that at the time Dr. Morvant
sent Pena and xxxxxxxx to Dr. Creely Sturm, Pena had AIDS and xxxxxxxx
was HIV-positive. Thus, the only remaining question in this litigation
is whether the Defendants denied Pena and xxxxxxxx dental treatment on
the basis of their HIV status.

\"Relevant evidence\" is defined as \"evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would
be without the evidence.\" Fed. R. Evid. 401. \"Evidence which is not
relevant is not admissible.\" Fed. R. Evid. 402. As demonstrated below,
information regarding a witness\' HIV status and medical history, except
with respect to Pena and xxxxxxxx, is irrelevant. Information regarding
the sexual history of any witness is also irrelevant.

**1. The Court Should Exclude, as Irrelevant, Information Concerning a
Witness\' HIV Status and Medical History, except with respect to Pena
and xxxxxxxx**

Because the government has alleged that the Defendants acted in a
discriminatory manner against Pena and xxxxxxxx because they were
HIV-positive or had AIDS, their HIV/AIDS status is clearly relevant to
the resolution of this matter and should be given to the trier of fact.
Likewise, information concerning the medical history of Pena and
xxxxxxxx may be relevant to the limited extent that it is probative of
the issue of compensatory damages.

However, Pena and xxxxxxxx are the [only]{.underline} persons whose HIV
status and medical history is relevant or of any possible consequence in
this lawsuit. Information concerning the HIV status or medical history
of any other witnesses, including Dunne, Witkowski, Dynia, and xxxxxxxx,
none of whom claim to have been refused dental care by Defendants, is of
absolutely no consequence to the ultimate issues in this case, either
with respect to the material claims or the defenses in this action, and
should be excluded as irrelevant. Information concerning the HIV status
or the medical history of the other witnesses, including whether they
have ever been tested for HIV, simply does not in any way tend to prove
or disprove whether Dr. Morvant violated the ADA in the manner alleged
in the government\'s complaint.

Accordingly, unless the Defendants can very clearly demonstrate that
information of this kind is relevant to any material issue in this case,
the Defendants must be barred from asking witnesses, other than Pena and
xxxxxxxx, information regarding their HIV status and medical history.

**2. The Court Should Also Exclude Information Concerning any Witness\'
Sexual Orientation and/or Sexual History on Relevancy Grounds**

This lawsuit alleges that Dr. Morvant unlawfully discriminated on the
basis of a person\'s HIV or AIDS status, not on the basis of a person\'s
gender, sexual history, or sexual orientation. Accordingly, information
concerning the sexual history of any witness, including information
relating to his or her sexual orientation, sexual history, or sexual
practices; the manner in which a person may have acquired HIV or AIDS;
and the prior sexual abuse of xxxxxxxx, also is irrelevant to the
ultimate issues in this case: whether the Defendants violated the ADA.

Federal courts, including this Circuit, have excluded information
concerning a witness\' sexual orientation or sexual history as
irrelevant. Indeed, in an action brought under the ADA, in which the
plaintiff alleged that the defendant law firm had unlawfully discharged
him because of his disability, namely his HIV status, the court
instructed the jury that sexual orientation was \"absolutely irrelevant
to this trial. You should dispel it from your minds. It\'s a red herring
. . . .\" [Doe v. Kohn, Nast & Graf]{.underline}, No. 93-CV-4510 (E.D.
Pa. Oct. 14, 1994). [See]{.underline} Exh. 18 (portion of trial
transcript for Oct. 14, 1994, pp. 122-136, at p. 136). Similarly, in
[United States v. Colyer]{.underline}, 571 F.2d 941 (5th Cir.), [cert.
denied]{.underline}, 439 U.S. 933 (1978), a case involving a
fraudulently obtained credit card, the Fifth Circuit upheld the trial\'s
court decision to prevent the complaining witness from answering the
question as to whether he was a homosexual because evidence regarding
the sexual orientation of the witness would not have been probative of
whether the credit card was given to the defendant or stolen by him.
[Id.]{.underline} at 946 n.7. [See also]{.underline}, [United States v.
Brooks]{.underline}, 928 F. 2d 1403, 1412 (4th Cir.) (it was not an
abuse of discretion to limit inquiries about the \"romantic
relationship\" of two prison inmates when \"\[s\]uch an excursion into
that type of relationship had nothing to do with the true issue in the
case and was an irrelevant diversion\"), [cert. denied]{.underline},
\_\_ U.S. \_\_, 112 S.Ct. 140 (1991); [United States v.
Gillespie]{.underline}, 852 F.2d 475, 478-479 n.2 (9th Cir. 1988)
(evidence of a homosexual relationship not relevant where \"none of the
testimony about their sexual relationship helped the trier of fact
decide whether the appellant was guilty of the offense charged\");
[United States v. Provoo]{.underline}, 215 F.2d 531, 537 (2d Cir. 1954)
(inquiry about defendant\'s homosexuality was irrelevant to the charge
of treason for which he was being tried); [Portland Feminist Women\'s
Health Ctr. v. Advocates for Life, Inc.]{.underline}, CIV. No.
86-559-FR, 1990 WL 146450, at \*2 (D. Or. Sept. 18, 1990) (granting
plaintiff\'s motion in limine to exclude evidence concerning sexual
practices of plaintiffs and their witnesses in an abortion rights case).
Therefore, the Defendants should be barred from asking witnesses that
information pursuant to Fed. R. Evid. 401 and 402.

B. **Information regarding one\'s HIV status, medical history, or sexual
history is not probative of personal bias, prejudice, or motive**

During discovery, Defendants questioned various deponents about such
matters as their HIV status, their sexual history, and the nature of
their relationship, if any, with Pena and xxxxxxxx, in order to
establish whether these witnesses harbored any bias in favor of Pena or
xxxxxxxx or the government.

With respect to HIV status, Defendants assert that if a fact witness is
HIV-positive that witness will have a vested interest in eliminating
discrimination against others who are HIV-positive and will, on that
basis alone, bias their testimony in this case in favor of the
government and against Dr. Morvant. As set forth below, that assertion
is not supported by the law.

However, even assuming arguendo, that Defendants\' assertion was true,
none of the governments witnesses questioned by Defendants stated that
they were, in fact, HIV-positive. Quite the opposite. Upon questioning
by Defendants, the witnesses testified either that they were
[not]{.underline} HIV-positive or that they did not know their HIV
status. Thus, the Defendants have their answers and those answers do not
support Defendants\' bias theory. Knowing that, there can be no good
faith reason for asking those same witnesses their HIV status in front
of the jury other than to attempt to embarrass the witness and inflame
the jury.

Likewise, Defendants asked Dynia whether he had ever had a sexual
relationship with Pena. He said that he had not. Again, Defendants have
their answer and there can be no good faith reason for asking those
questions in front of the jury. The only possible reason would be to
inflame the jury.

In this circuit, bias has been defined as \"\[a\]ny incentive a witness
may have to falsify his testimony.\" [United States v.
Leslie]{.underline}, 759 F.2d 366, 379 (5th Cir. 1985). However,
information about a witness\' sexual history or sexual orientation has
no bearing on his or her propensity to tell the truth under oath and
\"\[i\]t would indeed \[be\] wrong to permit cross-examination on the
score of homosexuality merely to discredit.\" [United States v.
Nuccio]{.underline}, 373 F.2d. 168, 171 (2d Cir. 1967), [cert.
denied]{.underline}, 387 U.S. 906 (1967). [See also]{.underline} [United
States v. Colyer]{.underline}, 571 F.2d 941 (5th Cir.) (evidence as to
whether the complaining witness was a homosexual would have nothing to
do with his credibility as a witness), [cert. denied]{.underline}, 439
U.S. 933 (1978); [United States v. Boylan]{.underline}, 898 F.2d 230,
255 n.14 (1st Cir.)(homosexuality or sexual preference has nothing to do
with testimonial honesty), [cert. denied]{.underline} 498 U.S. 849
(1990); [Eastwood v. Dept. of Corrections of State of
Okla.]{.underline}, 846 F.2d 627, 631 (10th Cir. 1988) (sexual history
is in no way probative of witness\' veracity); [Provoo]{.underline}, 215
F.2d at 537 (there is no authority \"which suggests that homosexuality
indicates a propensity to disregard the obligation of an oath\");
[United States v. Wright]{.underline}, 489 F.2d 1181, 1184, 1186 (D.C.
Cir. 1973) (evidence of homosexuality completely unrelated testimonial
honesty).

The government acknowledges that evidence of a relationship between a
party and a witness may be relevant for purposes of establishing
possible bias.[^2] Thus, the jury is entitled to hear information that
may evidence bias, including the fact that Pena and Dunne lived together
in a relationship that lasted 22 years. The jury also is entitled to
hear about the extent to which that relationship may have influenced
events that are material to this lawsuit. Likewise, the Defendants also
should be able to explore the fact that Witkowski and Dynia were friends
of Pena, to explore the attitudes and beliefs of the witnesses, to
question their motives for testifying in this case, and to ascertain
whether they have anything to gain by testifying. The same is true with
respect to Pena\'s family and with respect to xxxxxxxx and his wife.

However, as long as the jury has been given a reasonable opportunity to
make a discriminating appraisal of the witnesses\' credibility, bias,
and particular motives in testifying, there is absolutely no reason for
asking witnesses in this case about their HIV status, their medical
history, or the intimate details of their personal lives and sexual
history.

> Defendants cannot run roughshod, doing precisely as they please simply
> because cross-examination is underway. So long as a reasonably
> complete picture of the witness\' veracity, bias, and motivation is
> developed, the judge enjoys power and discretion to set appropriate
> boundaries.

[Boylan]{.underline}, 898 F.2d at 254; [see also]{.underline} [United
States v. Tansley]{.underline}, 986 F.2d 880, 886 (5th Cir. 1993);
[Greene v. Wainwright]{.underline}, 634 F.2d 272, 275 (5th Cir. 1981).
Thus, in [Boylan]{.underline}, the First Circuit upheld the trial
court\'s decision to preclude cross-examination of certain government
witnesses about the recruitment of male prostitutes and whether a
witness was homosexual because the defense had been given ample
opportunity to explore in detail the witnesses\' grant of immunity and
the bribery at issue, \"the essential factors shedding light on the
witnesses\' testimonial incentives and veracity\". [Id.]{.underline} at
255. \"Only the sex related trimmings were placed off limits.\"
[Id.]{.underline}

Proffered evidence must tend to show that the bias is more or less
probable than it would be without the evidence. [Mills v.
Estelle]{.underline}, 552 F.2d 119 (5th Cir.), [cert.
denied]{.underline}, 434 U.S. 871 (1977). Thus, in [United States v.
Wright]{.underline}, 489 F.2d 1181, the Court held that it was not an
abuse of discretion to exclude evidence that a robbery victim may have
made a prior homosexual advance toward the defendant, as evidence of
bias, because the evidence was ambiguous and susceptible to
misinterpretation. [Id.]{.underline} at 1186. Here, there simply is no
demonstrable basis for the claim that the HIV status of witnesses will
influence the witness to testify other than truthfully.

C**. Even if Information Concerning HIV Status, Sexual Orientation or
Sexual History Has Some Limited Relevance or Probative Value, Such
information is unfairly prejudicial and should be excluded under Fed. R.
Evid. 403.**

Even assuming, arguendo, that information concerning HIV status or
sexual history has some probative value, that value is substantially
outweighed by the unfair prejudice that would ensue to the government
and to some of its witnesses if such information is disclosed.
Accordingly, the Court should exclude that information pursuant to Fed.
R. Evid. 403.

Fed. R. Evid. 403 provides:

> Although relevant, evidence may be excluded if its probative value is
> substantially outweighed by the danger of unfair prejudice, confusion
> of the issues, or misleading the jury, or by considerations of undue
> delay, waste of time, or needless presentation of cumulative evidence.

Thus, the court must undertake an assessment of whether the probative
value of the proffered evidence is substantially outweighed by the harm
that is likely to result if the evidence is admitted because of the
unfairly prejudicial nature of the evidence or on account of one or more
of the other countervailing factors.

Without question, information regarding a witness\' HIV status, medical
history, and/or sexual history has the potential to be unfairly
prejudicial to the government\'s case and its witnesses. \"Unfair
prejudice\" within the meaning of Rule 403 occurs when the evidence has
\"an undue tendency to suggest \[a\] decision on an improper basis,
commonly, though not necessarily, an emotional one.\" Fed. R. Evid. 403
advisory committee note. It is evidence which \"appeals to the jury\'s
sympathies, arouses its sense of horror, provokes its instinct to
punish,\" or otherwise \"may cause a jury to base its decision on
something other than the established propositions in the case.\" 1 J.
Weinstein & M. Berger, Weinstein\'s Evidence, ¶ 403\[03\] at 403-37 to
403-49 (1993 ed.).

There can be no doubt that information regarding a person\'s HIV status
has a great propensity to adversely influence the jury\'s
decision-making process. \"Ignorance and prejudice concerning the
disease are widespread.\" [Doe v. Coughlin]{.underline}, 697 F. Supp.
1234, 1238 (N.D.N.Y. 1988).[^3]

Similarly, information about sexual history, sexual orientation, and
xxxxxxxx's sexual abuse as a child, has a substantial potential to
unfairly prejudice and harm the perceived credibility of the
government\'s witnesses by provoking an inappropriate emotional response
in the jury and otherwise affecting adversely the jury\'s assessment of
the witness\' testimony. This harm is especially significant with
respect to information regarding a witness\' sexual orientation. The
stigma and social ostracism attached to homosexuality is legion. Justice
William Brennan put it succinctly: \"homosexuals have historically been
the object of pernicious and sustained hostility.\" [Rowland v. Mad
River Local Sch. Dist.]{.underline}, 470 U.S. 1009, 1014 (1985)
(dissenting from denial of cert.). Defendants may argue that xxxxxxxx\'s
experience of being sexually abused as a child is somehow relevant to
his claim for damages in this case. If Defendants can carry the heavy
burden of demonstrating that, the government will ask for a limiting
instruction.

Federal courts have wisely exercised their discretion to exclude
evidence of sexual history, including sexual orientation, under Fed. R.
Evid. 403, when that evidence has had little probative value in the case
and has had a great propensity to unfairly prejudice the outcome of the
jury\'s decision-making process. In [Boylan]{.underline},
[supra]{.underline}, the court found that the trial court properly
excluded evidence about a witness\' sexual preference \"\[g\]iven the
marginal value of sexual preference testimony and its potential to
distract the jury from the legitimate issues of the case.\"
[Id.]{.underline} at 255. The First Circuit cited with approval the
remarks of the trial judge who struck a question propounded by the
defense attorney which referred to a witness\'s sexual preference.

> Everybody in this room knows that mentioning homosexuality, accusing
> someone of homosexuality has such a proclivity, such a tendency to
> debase and humiliate a witness. . . . It has nothing to do with
> testimonial honesty. . . . In my judgment \[the question\] was offered
> for purpose of humiliating and degrading the witness. . . . It\'s not
> worth a hill of beans, compared to the probative value it offers. It
> has absolutely no value in this case. . . .

[Boylan]{.underline}, 898 F.2d at 255 n.14.

The Fifth Circuit has acted in a similar vein. For example, in [Porretto
v. Stalder]{.underline}, 834 F.2d 461, 465 (5th Cir. 1987), the Court of
Appeals affirmed a ruling by the Louisiana Supreme Court that the trial
court\'s exclusion of testimony attempting to establish the existence of
a homosexual relationship was proper. Similarly, in [United States v.
Davila]{.underline}, 704 F.2d 749, 753 (5th Cir. 1983), this Circuit
upheld the exclusion of evidence that the government\'s witness had
engaged in prostitution as prejudicial and because \"whatever probative
value lay in the evidence as to possible prostitution was minuscule and
the potential for confusion was substantial.\" In another case which
involved convictions for mail and wire fraud and conspiracy, the Court
of Appeals found it was reversible error not to exclude evidence of a
sexual relationship between two co-conspirators because of its
prejudicial aspects. [United States v. Frick]{.underline}, 588 F.2d 531,
537-538 (5th Cir.), [cert. denied]{.underline}, 441 U.S. 913 (1979).

Of particular note is the fact that this Circuit also has ruled that
information concerning the contraction of a sexually transmitted disease
was not probative of the material issues in the case. [In Re Air Crash
Disaster Near New Orleans, La.]{.underline}, 767 F.2d 1151, 1154 (5th
Cir. 1985). Thus, in a wrongful death action brought on behalf of a
deceased spouse, the Court upheld the trial court\'s refusal to admit
evidence that the witness had contracted venereal disease during his
marriage because the evidence was probative of \"nothing more\" than
that he had been unfaithful to his wife and the potential prejudice of
that information outweighed its value. [Id.]{.underline} at 1154. Thus,
there is simply no reason to explore how Pena or xxxxxxxx contracted the
HIV-virus because it is absolutely irrelevant to the claims asserted
here and the information sought is, presumably, calculated to leave the
jury with the impression that they were \"bad characters.\"

Similar precedent can be found in other circuits as well.
[See]{.underline}, [e.g.]{.underline}, [Cohn v. Papke]{.underline}, 655
F.2d 191, 194-195 (9th Cir. 1981) (trial court abused its discretion by
permitting inquiries concerning prior sexual experiences and sexual
orientation because evidence was \"of very slight probative value\" and
there \"was a clear potential that the jury may have been unfairly
influenced by whatever biases and stereotypes they might hold with
regard to homosexuals or bisexuals\"); [Gillespie]{.underline}, 852 F.2d
at 478-479 (because evidence of homosexuality is \"extremely
prejudicial,\" it was reversible error to admit evidence from which the
jury could infer that the defendant had a homosexual relationship where
the verdict \"probably depended on the jury\'s assessment of the
credibility and character\" of the accused and a prosecution witness);
[United States v. Millen]{.underline}, 594 F.2d 1085, 1088 (6th Cir.)
(defendant\'s conviction for involuntary manslaughter reversed where
government failed to present any evidentiary basis for testimony that
there was a homosexual relationship between the defendant and the
homicide victim and it was clear the \"prejudicial aspect of the answer
given far outweighed any obvious or apparent probative value\" of the
information), [cert. denied]{.underline}, 444 U.S. 829 (1979).

Accordingly, in assessing the probative value of information regarding
HIV status, medical history, and sexual history in relation to the
unfairly prejudicial nature of that information, the Court should,
absent extraordinary circumstances, bar inquiry into such areas pursuant
to Fed. R. Evid. 403.

**D. Allowing disclosure at trial of information concerning HIV Status,
sexual orientation and sexual history will have a chilling effect upon
the enforcement of the ADA**

Finally, allowing the disclosure of information regarding highly
personal matters such as HIV status and sexual history will have a
chilling effect upon the enforcement of the ADA. Indeed, the potential
for disclosure of such information at trial will deter individuals from
bringing HIV discrimination cases in the first instance and deter
witnesses who may have material information about this case and others
from coming forward.

The potential for chilling effect here is similar to that recognized in
both rape and sexual harassment cases. In advocating the passage of the
Privacy Protection for Rape Victims Act (codified at Fed. R. Evid. 412),
which prohibits inquiries into a rape victim\'s sexual history, Congress
Holtzman argued:

> Too often in this country victims of rape are humiliated and harassed
> when they report and prosecute the rape. Bullied and cross-examined
> about their prior sexual experiences, many find the trial almost as
> degrading as the rape itself . . . it is not surprising that \[rape\]
> is the least reported crime.

124 Cong. Record at p. H11944 (Oct. 10, 1978). More recently, in a
federal sexual harassment case, the court prohibited inquiries into the
plaintiff\'s prior sexual activities during discovery, noting that:

> Discovery of intimate aspects of plaintiffs\' lives, as well as those
> of their past and current friends and acquaintances, has the clear
> potential to discourage . . . litigants from prosecuting lawsuits such
> as the instant one. For those more hearty souls who are determined to
> have their day in court, it has the potential to annoy and harass them
> significantly.

. . .

The possibility that discovery tactics such as that used by defendant
herein might intimidate, inhibit, or discourage Title VII plaintiffs . .
. from pursuing their claims would clearly contravene the remedial
effect intended by Congress in enacting Title VII, and should not be
tolerated by the federal courts. In fact, it was to empower federal
courts to prevent such unjust effects that Rule 26(c) of the Federal
Rules of Civil Procedure was enacted.

[Priest v. Rotary]{.underline}, 98 F.R.D. 755, 761 (N.D. Cal. 1983).

As demonstrated herein, the information concerning HIV status, sexual
history and/or sexual orientation is fiercely private, the disclosure of
which can unfairly prejudice the outcome of this case. Unless
individuals can be assured that their privacy interests in such
information will be protected, few people will be willing to come
forward with complaints alleging discrimination on the basis of HIV or
AIDS, to pursue their rights under the ADA, or to testify in these
cases. Nor should they have to. To hold otherwise contravenes the
remedial effect intended by Congress in enacting the statute.
[See]{.underline} [Kinney v. Yerusalim]{.underline}, 812 F. Supp. 547,
551 (E.D. Pa.) (\"The ADA is a remedial statute, designed to eliminate
discrimination against the disabled in all facets of society.\"),
[aff\'d]{.underline}, 9 F.3d 1067 (3d Cir. 1993), [cert.
denied]{.underline}, \_\_ U.S. \_\_, 114 S.Ct. 1545 (1994); 101 S. Rep.
116, 101st Cong., 1st Sess. 8 (1989) (noting the testimony of Admiral
James Watkins, former chairperson of the President\'s Commission on the
Human Immunodeficiency Virus Epidemic, that \"fear of discrimination . .
. will undermine our efforts to contain the HIV epidemic and will leave
HIV-infected individuals isolated and alone\").

**E. The Court has the Power to Protect Witnesses from Harassment and
Undue Embarrassment**

The Court has the discretion pursuant to Fed. R. Evid. 611(a) to control
the mode of interrogating witnesses and presenting evidence so as to
protect witnesses from harassment or undue embarrassment.[^4]
[Colyer]{.underline}, 571 F.2d at 946-947 n.7.

There are few matters of a more personal and private nature than
information pertaining to one\'s HIV status and medical history.
[See]{.underline}, [e.g.]{.underline}, [Woods v. White]{.underline}, 689
F. Supp. 874, 876 (W.D. Wis. 1988) (\"\[g\]iven the most publicized
aspect of the AIDS disease, namely that it is related more closely than
most diseases to sexual activity . . ., it is difficult to argue that
information about this disease is not information of the most personal
kind\"), [aff\'d]{.underline}, 899 F.2d 17 (7th Cir. 1990); [Doe v.
Coughlin]{.underline}, 697 F. Supp 1234, 1237 (N.D.N.Y. 1988)(\"\[i\]n
the court\'s view there are few matters of a more personal nature\" than
having tested positive for HIV).

Federal courts have repeatedly acknowledged that there is a
constitutionally-protected privacy interest \"in avoiding disclosure of
personal matters,\" [Whalen v. Roe]{.underline}, 429 U.S. 589, 598-600
(1977), including information about one\'s medical condition and other
information of a distinctly personal nature. [See]{.underline},
[e.g]{.underline}., [Fadjo v. Coon]{.underline}, 633 F.2d 1172, 1174
(5th Cir. 1981) (\"the most private details of \[plaintiff\'s\] life\"
provided during criminal investigation); [United States v. Westinghouse
Elec. Corp.]{.underline}, 638 F.2d 570, 577 (3d Cir. 1980) (information
about one\'s body and state of health); [Inmates of New York State with
Human Immune Deficiency Virus v. Cuomo]{.underline}, No. 90-CV-252, 1991
WL 16032 at \*3 (N.D.N.Y. Feb. 7, 1991) (\"the federal Constitution
protects against the unwarranted and indiscriminate disclosure of the
identity of HIV-infected individuals and of their medical records\").

Accordingly, because the disclosure of information of this sort has the
obvious potential to harass and embarrass witnesses in this case, the
court should, if necessary, exercise its power pursuant to Rule 611(a)
to bar such inquiries.

**III. [CONCLUSION]{.underline}**

For the reasons set forth in this Memorandum, the United States
respectfully requests that this Court grant the motion in limine and
prohibit inquiries concerning HIV status, medical history, and sexual
history from (1) inquiring into the HIV status of any witness in this
matter except Pena or xxxxxxxx; inquiring into the sexual history of any
witness in this matter, including any inquiries into that person\'s
sexual orientation, sexual practices, and/or sexual abuse; and (3)
inquiring into the medical history of all witnesses, except with respect
to Pena and xxxxxxxx and then, only to the extent that medical history
is probative of the issue of damages.

Respectfully submitted,

EDDIE J. JORDAN, JR. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

Eastern District of Civil Rights Division

Louisiana

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

GLENN K. SCHREIBER JOHN L. WODATCH

Assistant U.S. Attorney L. IRENE BOWEN

Eastern District of ALLISON J. NICHOL

Louisiana SHEILA K. DELANEY

501 Magazine St. SHARON N. PERLEY, TA

New Orleans, LA 70130 Attorneys

Public Access Section

Civil Rights Division

United States Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-6016

[^1]: ^?^ Information regarding HIV status and medical history is
    relevant with respect to Pena and Hodgkinson. [See]{.underline}
    [infra]{.underline}.

[^2]: ^?^ \"Relationships between a party and a witness are always
    relevant to a showing of bias whether the relationship is based on
    ties of family, sex - heterosexual or homosexual - employment,
    business, friendship, enmity or fear.\" 3 J. Weinstein & M.Berger,
    Weinstein\'s Evidence, ¶ 607\[03\] at 607-37 to 607-39 (1993 ed.)

[^3]: ^?^ Indeed, the courts have noted that \"no disease in modern
    history has engendered so much attention, fear, and even hysteria as
    AIDS,\" [Snyder v. Mekhjian]{.underline}, 593 A.2d 318, 323 (N.J.
    1991)(Pollock, J., concurring) and have likened the virus to \"the
    modern day equivalent of leprosy.\" [Rasmussen v. South Fla. Blood
    Serv]{.underline}., 500 So.2d at 533, 538 (Fla. 1987).

[^4]: ^?^ Fed. R. Evid. 611(a) provides:

    > The court shall exercise reasonable control over the mode and
    > order of interrogating witnesses and presenting evidence so as to
    > . . . . (3)protect witnesses from harassment or undue
    > embarrassment.