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]{.underline}**

**[TO ADMIT PENA AFFIDAVIT AND VIDEOTAPE]{.underline}**

**I. INTRODUCTION**

Plaintiff, the United States, submits this memorandum in support of its
motion in limine to admit into evidence 1) the sworn affidavit and 2) a
videotaped oral statement of Ismael Pena, now deceased, on the grounds
that they are admissible under the residual hearsay exception, Fed. R.
Evid. 804(b)(5).

Plaintiff seeks an order admitting both of these statements into
evidence because they are relevant to Dr. Morvant\'s purported reasons
for sending Pena to another dentist during a telephone conversation in
February, 1993, and also to the plaintiff\'s claim for damages to
compensate Pena\'s pain and suffering. Because there are no known
witnesses to their telephone conversation and Pena has since died,
Pena\'s account is the only other personal, first-hand description of
the conversation between Pena and Dr. Morvant. In addition, the
affidavit and the videotape represent the only personal, first-hand
account of how Pena felt about Dr. Morvant\'s conversation with him and
the effect it had on him. Thus, the admission of both statements is
necessary to ensure that the jury is presented with all relevant and
material facts. Accordingly, for the reasons set forth more fully below,
the United States requests that the Court grant its motion in limine.

**II. BACKGROUND**

In this action brought under title III of the Americans with
Disabilities Act of 1990 (\"ADA\"), 42 U.S.C. §§ 12181-89, the
government alleges that Defendants Drew B. Morvant, D.D.S. and Drew B.
Morvant, A Professional Dental Corporation, violated the ADA by refusing
to provide dental care to Ismael Pena, xxxxxxxx, and others, solely
because they are HIV-positive or have AIDS. In its request for relief,
the government seeks, among other things, compensatory relief for Pena
and xxxxxxxx.

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.
[See]{.underline} Exh. 1.

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.

**A. Circumstances Surrounding the Preparation of the Pena Affidavit and
Videotape**

On May 4, 1993, AIDSLAW of Louisiana Inc., filed a complaint with the
Department of Justice on behalf of Ismael Pena, alleging a violation of
the ADA. [See]{.underline} Exh. 18. The letter alleged that in February
1993, Pena\'s \"long time dentist, Dr. Drew Morvant\" refused to treat
Pena because he had AIDS and requested that the Department investigate
the matter. The letter was received by the Department on May 17,
1993.[^1] [Id]{.underline}.

On June 30, 1993, a Department of Justice employee attempted to contact
Pena regarding his complaint and learned that Pena\'s health was
deteriorating and that he was dying. [See]{.underline} Exh. 19. On July
2, 1993, that Department employee spoke with Pena and requested that he
prepare a sworn statement and a videotape regarding the alleged
discrimination for purposes of the investigation. [Id]{.underline}. Pena
agreed to do so. [Id]{.underline}.

On July 5, 1993, five days after the Department learned of Pena\'s
failing health, and six days before Pena\'s death on July 11, 1993, Pena
prepared a typewritten four-page affidavit describing, among other
things, the circumstances surrounding the telephone conversation with
Dr. Morvant in February 1993. [See]{.underline} Exh. 20. The affidavit
stated that Pena had \"been asked by the Department of Justice to
prepare \[a\] videotape regarding the events that occurred during the
week of February 4, 1993.\"[^2] He stated that he was preparing a
videotape \"because I know that I may soon be passing into another life
and thus unable to testify to the events that have occurred.\"
[Id]{.underline}. His affidavit set forth \"to the best of my
recollection a transcript\" of the telephone conversation that he had
with Dr. Morvant on or around February 4, 1994.[Id]{.underline}. Pena\'s
affidavit alleged that part of the conversation went as follows:

Morvant: Well, one of the hygienists noticed that you had some thrush in
your mouth the last time that you were here. You know, a lot of these
girls are of child-bearing age, and they are nervous about AIDS and HIV
and we are not really cleaning people\'s teeth now who have tested
positive for the AIDS virus. There is a dentist that I can recommend to
you. It\'s Dr. Kathryn Creely.[^3] She\'s on Magazine Street, \[and I
remember very distinctly his following comment was\] She\'s a woman but
she\'s still pretty good and she doesn\'t mind working on AIDS victims.
I have the address here for you. I think it will work out best that way
because if I tried to get these gals to clean the teeth of patients with
AIDS I would be losing a lot of staff and I would have to replace staff
on a constant basis.

\[Pena\]: Well, I feel badly because I\'ve always enjoyed coming to your
office and it\'s really too bad you are held hostage by the phobias of
your dental assistants. But I appreciate your recommendation and thank
you for letting me know.

[See]{.underline} Exh. 20.

Pena\'s affidavit also described his reaction to the telephone call and
how he felt about what had transpired. The affidavit continued, in part:

> After the conversation, I sat at my desk for the rest of the afternoon
> and was unable to do anything else. I guess I was in a state of shock.
> I felt personally betrayed because I realized that Dr. Morvant no
> longer wanted me as his patient. I could not eat supper that night.
>
> . . . For weeks afterwards, I was unable to even try to find another
> dentist because I was distraught and fearful of another medical
> rejection. Despite my need to have my teeth cleaned, I was so anxious
> that I asked Patrick to check out other dentists. I was fearful that I
> would be rejected again and I did not want to have to go through it
> again.

[Id]{.underline}.

Pena\'s affidavit was in a narrative form and was dictated by Pena at
his home.[^4] Pena attested to the truth of the affidavit before a
notary public and he signed and initialed it. [See]{.underline} Exh. 20.

On July 5, 1993, as indicated by the affidavit, Pena also recorded his
remarks on a videotape. [See]{.underline} Exh. 23. The videotape is,
substantively, the same account of what Pena said in the affidavit.[^5]
It was made in the presence of at least two witnesses and is less than
seven minutes long.[^6]

On July 22, 1993, the Department of Justice notified Dr. Morvant that it
had received a complaint alleging that he had refused to provide dental
treatment to Pena because of Pena\'s HIV status and requested that he
respond to the allegations. [See]{.underline} Exh. 26.[^7] On August 10,
1993, the Department received Morvant\'s response that denied the
substantive allegations of Pena\'s complaint. [See]{.underline} Exh. 29.

After the completion of its investigation of the Pena complaint, as well
as its investigation of a similar complaint made by xxxxxxxx, the
Department of Justice filed the instant action against the Defendants on
October 4, 1993.

**B. The Relevance of the Affidavit and Videotape**

The parties agree that Pena and Dr. Morvant had a telephone conversation
in February 1993; that Dr. Morvant did not treat Pena after that
telephone conversation; and that Dr. Morvant sent Pena to Dr. Creely
Sturm after he learned that Pena had AIDS. The affidavit and the
videotape reflect these material undisputed facts.

However, the parties do not agree as to why Dr. Morvant sent Pena to Dr.
Creely Sturm. Pena\'s account differs significantly from Dr. Morvant\'s
on the question of why Dr. Morvant sent Pena to Dr. Sturm. In essence,
Pena stated that Dr. Morvant\'s decision was based on the fears of his
staff. Dr. Morvant, on the other hand, has denied making such a
statement. [See]{.underline} Exh. 29. He claims that he \"explained to
Pena that because of his condition, I was going to refer him to a
specialist in our community who would better be able to take care of him
with his special needs as a patient with a depressed immune system.\"
[See]{.underline} Exh. 30 at 22. Nowhere in Pena\'s account does he
mention such a rationale. Since the affidavit and the videotape are the
only first-hand account, other than Dr. Morvant\'s recollection, of the
February 1993 telephone conversation, their admission into evidence is
necessary to ensure that the jury will have the opportunity to hear both
sides of the story.

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

**A. The Pena statements fully satisfy the requirements of the residual
hearsay exception,** **Fed. R. Evid. 804(b)(5)**

As a threshold matter, there is no dispute that both the Pena affidavit
and the videotape are hearsay as defined by Fed. R. Evid. 801(c). They
are out-of-court statements made by a declarant, now deceased, and are
being offered to prove the truth of certain matters asserted.[^8]
However, because the affidavit and the videotape are relevant to the
issues in this case, the United States seeks an order admitting them
into evidence under the residual hearsay exception of Fed. R. Evid.
804(b)(5).

A trial court has broad discretion in rulings on the admissibility of
evidence, including rulings on the admissibility of statements under the
residual hearsay exception. [Rock v. Huffco Gas & Oil Co.,
Inc.]{.underline}, 922 F.2d 272, 277 (5th Cir. 1991); [Nowell v.
Universal Elec. Co.]{.underline}, 792 F.2d 1310, 1315 (5th Cir. 1986),
[cert. denied]{.underline}, 479 U.S. 987 (1986).

Under the terms of Fed. R. Evid. 804(b), certain statements are not
excluded by the hearsay rule if the declarant is unavailable as a
witness.[^9] Under the residual exception to the hearsay rule, Fed. R.
Evid. 804(b)(5), hearsay statements may be admitted if the court
concludes that the statements meet the following requirements:

> \(5\) Other exceptions. A statement not specifically covered by the
> foregoing exceptions but having equivalent circumstantial guarantees
> of trustworthiness, if the court determines that: (A) the statement is
> offered as evidence of a material fact; (B) the statement is more
> probative on the point for which it is offered than any other evidence
> which the proponent can procure through reasonable efforts; and (C)
> the general purposes of these rules and the interests of justice will
> best be served by the admission of the statement into evidence.
> However, a statement may not be admitted under this exception unless
> the proponent of it makes known to the adverse party sufficiently in
> advance of the trial or hearing to provide the adverse party with a
> fair opportunity to prepare to meet it, the proponent\'s intention to
> offer the statement and the particulars of it, including the name and
> address of the declarant.

Fed. R. Evid. 804(b)(5).

The forerunner of the residual hearsay exception is generally thought to
be a decision by the Fifth Circuit, [Dallas County v. Commercial Union
Assurance Co.]{.underline}, 286 F.2d 388 (5th Cir. 1961), an action
brought against an insurance company to recover damages sustained to the
county courthouse. The Fifth Circuit upheld the trial court\'s admission
of a 58-year old newspaper article as evidence that the courthouse was
damaged by a fire in 1901. After concluding that the news account did
not qualify under one of the specific hearsay exceptions, the Court of
Appeals agreed, nevertheless, that the article was \"admissible because
it is necessary and trustworthy, relevant and material\" to the issue of
whether the recent collapse of the building had been caused by lightning
or by the earlier fire. [Id]{.underline}. at 398.

When Congress adopted the Federal Rules of Evidence, it recognized the
need for a flexible approach to hearsay espoused earlier by the Fifth
Circuit in [Dallas County]{.underline}, [i.e.]{.underline}, that a
hearsay statement which does not fall squarely within one of the
specific exceptions, may, under certain exceptional circumstances, still
possess sufficient circumstantial guarantees of trustworthiness to
warrant its admission into evidence.

> \[The residual\] exception was designed to protect the integrity of
> the specifically enumerated exceptions by providing the courts with
> the flexibility necessary to address unanticipated situations and to
> facilitate the basic purpose of the Rules: ascertainment of the truth
> and fair adjudication of controversies. . . . \[T\]he wording of the
> Rule and the legislative history indicate that Congress intended
> evidence to be admitted under Rule 803(24) only if the reliability of
> the evidence equals or exceeds that of the other exceptions to the
> hearsay rule.

[Nowell]{.underline}, 792 F.2d at 1314-1315.[^10] (citations omitted);
[see]{.underline} [also]{.underline} [U.S. v. Thevis]{.underline}, 84
F.R.D. 57, 61-62 (N.D. Ga. 1979), ([aff\'d]{.underline} on other
grounds, 665 F.2d 616 (5th Cir. 1982), [cert. denied]{.underline}, 456
U.S. 1008 (1982). In light of the circumstances described below, there
is ample reason for this Court to conclude that the affidavit and the
videotape possess sufficient circumstantial guarantees of
trustworthiness and that they fully satisfy the requirements of Fed. R.
Evid. 804(b)(5) and the underlying purposes of the rule.

**1. Pena\'s affidavit and videotape clearly possess the requisite
circumstantial guarantees of trustworthiness**

The totality of circumstances surrounding the preparation of Pena\'s
affidavit and the videotape provide ample evidence that both the
affidavit and the videotape possess the requisite circumstantial
guarantees of trustworthiness. In particular, both statements were: a)
made with Pena\'s knowledge of his impending death; b) made where there
was no motive to misrepresent the facts; c) made at the request of the
Department of Justice during the course of its initial investigation of
Pena\'s complaint; d) made voluntarily; e) based upon Pena\'s personal
knowledge of what was said during the telephone conversation with
Morvant; f) made under oath and under penalty of perjury; and g) were
rich in detail.

First and foremost, the fact that Pena prepared the affidavit and the
videotape with the knowledge that he \"may soon be passing into another
life\" is compelling evidence that Pena\'s statements are trustworthy.
Although Pena\'s statements do not qualify as a dying declaration under
Fed. R. Evid. 804(b)(2), they possess assurances of truthfulness and
reliability equivalent to those that underlie the dying declaration
exception.[^11] [See]{.underline}, [e.g.]{.underline}, [Mattox v.
U.S.]{.underline}, 156 U. S. 237, 244 (1895) (\"\[T\]he sense of
impending death is presumed to remove all temptation to falsehood, and
to enforce as strict an adherence to the truth as would the obligation
of oath.\"). [See]{.underline} [also]{.underline} [U.S. v.
Mobley]{.underline}, 421 F.2d 345, 347-348 (5th Cir. 1970) (trial court
did not err in letting jury hear statement of deceased victim about
robbery, given to an FBI agent, where jury was instructed that they
could not consider contents of statement unless they found that the
declarant knew of his impending death);[^12] [Gann v. Meek]{.underline},
165 F.2d 857, 859 (5th Cir. 1948), [cert. denied]{.underline}, 334 U.S.
849 (1948) (letter from deceased Marine regarding change in insurance
policy admissible hearsay \"considering the circumstances under which it
was made, is almost equivalent to a dying declaration\"). Accordingly,
both the affidavit and the videotape satisfy the underlying intent of
Congress that residual hearsay statements possess indicia of reliability
equivalent to that of another exception under Fed. R. Evid. 804(b).
[See]{.underline} [Nowell]{.underline}, 792 F.2d at 1315.

Coupled with the fact that the dying man was unlikely to fabricate what
transpired between him and Dr. Morvant, is the lack of evidence that
Pena had even the slightest of motives to misrepresent what was said in
the telephone conversation. In fact, Pena and Dr. Morvant had a
long-term professional relationship, Pena liked the staff, and both Pena
and Dr. Morvant regarded each other as friends.[^13] [See]{.underline}
[Thevis]{.underline}, 84 F.R.D. at 63 (analysis of trustworthy character
of hearsay statement should inquire into \"the declarant\'s relationship
with the party against whom the statement is offered, and his motive to
speak truthfully about the facts observed\"); [Robinson v.
Shapiro]{.underline}, 646 F.2d 734, 743 (2nd Cir. 1981) (not an abuse of
discretion to admit the testimony of a decedent\'s co-worker where the
declarant had no reason to lie).

The fact that the affidavit and the videotape were prepared by Pena at
the request of the Department of Justice lends additional support to the
reliability of the statements. In fact, the Pena statements were
prepared at the earliest stage of the investigation into his complaint,
before the Department had even notified Dr. Morvant of its investigation
or received his response to the allegations. [See]{.underline},
[e.g.]{.underline}, [U.S. v. Accetturo]{.underline}, 966 F.2d 631, 635
(11th Cir. 1992) (narrative statement of a victim of extortion given
voluntarily to law enforcement authorities who were likely to
investigate further was admissible) ([cert. denied sub nom]{.underline}.
[Basha v. U.S.]{.underline}, 113 S.Ct 1053 (1993); [U.S. v.
Chapman]{.underline}, 866 F.2d 1326, 1331 (11th Cir. 1989) (fact that
out-of-court statements about defendant were made to police officials by
wife who knew police would begin an investigation to ascertain the truth
of her statements lends some reliability to the statements) ([cert.
denied]{.underline}, 493 U.S. 932 (1989).

Moreover, the affidavit and the videotape were dictated and narrated by
Pena at his home and were entirely voluntary. [Cf]{.underline}. [Central
Freight Lines, Inc.]{.underline}, [supra]{.underline}, 653 F.2d at 1026
(affidavit concerning conversation between manager and deceased employee
deemed not trustworthy because employee merely signed the affidavit
prepared by a board examiner). Furthermore, unlike a situation involving
some criminal law enforcement matters, there is no evidence that Pena
made the statement in order to curry favor with the Department of
Justice or because of any inducements such as a grant of immunity from
prosecution. [See]{.underline}, [e.g]{.underline}., [In re Corrugated
Container Antitrust Litig.]{.underline}, 756 F.2d 411, 415 (5th Cir.
1985)(transcript of a government interview conducted under a grant of
use immunity not inherently trustworthy); [United States v.
Gonzalez]{.underline}, 559 F.2d 1271, 1273 (5th Cir. 1977) (transcript
of grand jury testimony inadmissible as lacking circumstantial
guarantees of trustworthiness, particularly where there was evidence of
prosecutorial pressure).

It is particularly worthy to note that Pena\'s statements regarding the
telephone conversation are based upon factual matters within his
personal knowledge and observation, not conjecture. [See]{.underline}
[Thevis]{.underline}, 84 F.R.D. at 63 (analysis of trustworthiness
includes inquiry into declarant\'s \"opportunity to observe the episode
set forth in the statement\"); [cf]{.underline}. [Page v. Barko
Hydraulics]{.underline}, 673 F.2d 134, 140 (5th Cir. 1982) (hearsay
statement was admissible, but Court noted that statement was not based
upon the declarant\'s personal knowledge, was speculation, and had
little probative value). In addition, Pena\'s description of his pain
and suffering following Morvant\'s decision to send him to another
dentist is clearly relevant for purposes of proving the claim for
compensatory relief. Although other witnesses can testify about how Dr.
Morvant\'s actions affected Pena, the fact is that Pena\'s account
remains the only personal account available.

The fact that Pena attested to the truth of the facts contained in the
affidavit and the videotape, and that he reviewed the videotape before
attesting to its truthfulness are further indicia that the statements
are reliable evidence. [See]{.underline} [U.S. v. White]{.underline},
611 F. 2d 531, 538 (5th Cir. 1980) (statement admissible where executed
under \"an oath subjecting an affiant to the penalty for perjury,
\[which\] tends to impress upon the declarant the seriousness of the
statement and the importance of telling the truth\") [cert.
denied]{.underline}, 446 U.S. 992 (1980). [See]{.underline} also
[Accetturo]{.underline}, 966 F.2d at 635 n.8 (11th Cir. 1992) (victim\'s
handwritten statement given to law enforcement officials on a form
attesting to its truth was admissible); [Copperweld Steel Co. v.
Demag-Mannesmann-Bohler]{.underline}, 578 F.2d. 953, 964 n. 16 (3rd Cir.
1978) (admission of a memorandum prepared by attorney following
conversation with key witness who died before trial was not clearly
erroneous where statement had been reviewed and adopted by the witness
as being his statement and was more probative than any other evidence
offered).

Finally, the affidavit and the videotape also contain particular details
that lend credibility to the statement. [See]{.underline},
[e.g]{.underline}., [Thevis]{.underline}, 84 F.R.D. at 65 (statements
given to FBI and grand jury were \"replete with the detail to which only
a participant and a confidante would have access.\").

Thus, the indicia of the statements\' reliability, taken as a whole,
more than adequately demonstrate that the Pena affidavit and videotape
fully satisfy the express requirements of Fed. R. Evid. 804(b)(5).
However, the affidavit and the videotape also possess an added element
of reliability because material facts alleged in the statements have
been independently corroborated by other evidence, thus bolstering the
claim that the statements possess the circumstantial guarantees of
trustworthiness.[^14]

First, as indicated earlier, the parties agree that Pena and Dr. Morvant
had a telephone conversation in February 1993; that Dr. Morvant did not
treat Pena after that telephone conversation; and that Dr. Morvant sent
Pena to Dr. Creely-Sturm after he learned that Pena had AIDS.

Secondly, there is independent evidence indicating that Dr. Morvant made
similar remarks to Patrick Dunne regarding his reasons for sending Pena
to Dr. Sturm. For example, in his deposition, Dunne testified that Dr.
Morvant advised him to tell Pena not to mention the fact that Pena had
AIDS \"to the hygienists because they were very nervous about AIDS.\"
[See]{.underline} Exh. 22 at 45. Dunne also recalled that Morvant \"went
into an explanation that the girls in his office were very nervous about
AIDS, that they were childbearing age, that they didn\'t want to be put
at risk, and that he just couldn\'t clean Ismael\'s teeth in those
circumstances.\" [See]{.underline} Exh. 22 at 48; [see]{.underline}
[also]{.underline} Exh. 31.

Thirdly, there is circumstantial evidence from which inferences can be
drawn that Dr. Morvant\'s staff was concerned about treating HIV/AIDS
patients. For example, Dr. Morvant did, in fact, have several staff
members of child-bearing age. [See]{.underline} Exh. 32 at 127; Exh. 33
at 57; Exh. 34 at 73-74. Moreover, one of the hygienist\'s testified
during her deposition that she believed she was on fertility drugs at
the time that she treated Pena. [See]{.underline} Exh. 32 at 142-146. A
dental assistant stated during her deposition that she guessed she
\"would be scared\" if she had to work with someone with AIDS.
[See]{.underline} Exh. 33 at 57. She also testified about her concern of
her children dying of AIDS. [See]{.underline} Exh. 33 at 58-59.

Accordingly, it is abundantly clear that the affidavit and the videotape
possess the circumstantial guarantees of trustworthiness and should be
admitted into evidence.

**2. The Pena statements offer evidence of several material facts**

The affidavit and the videotape clearly provide evidence material to
resolving the dispute concerning Dr. Morvant\'s rationale for sending
Pena to Dr. Creely-Sturm. The statements bear on whether Dr. Morvant\'s
actions were taken for the reasons he claims, and for purposes of
permitting the jury to assess Dr. Morvant\'s credibility and whether his
claims are merely pretextual. The statements also bear directly on the
nature and the scope of the injury suffered by Pena.

**3. The Pena statements are more probative than any other reasonably
procurable evidence**

In weighing the probative value of proffered evidence, the court should
examine the proponent\'s need for such evidence. [U.S. v.
Spletzer]{.underline}, 535 F.2d 950, 956 (5th Cir. 1976). In this case,
the admission into evidence of the affidavit and the videotape is
necessary because they bear on the disputed issue of Dr. Morvant\'s
reasons for sending Pena to Dr. Creely-Strum. They are, moreover,
without a doubt, more probative of what Pena recalled about the
telephone conversation than any other reasonably procurable evidence.
Indeed, as we continually have stressed, the affidavit and the videotape
represent the only personal, first-hand account of what transpired
during the February 1993 telephone conversation, other than that of the
Defendant, Dr. Morvant. Thus, unless the court admits the statements,
the government will be deprived of an opportunity to provide the jury
with a full and complete means by which to determine what transpired and
why.

In addition, Pena\'s testimony regarding Dr. Morvant\'s actions, and his
feelings of betrayal, discrimination, and fears of \"another medical
rejection\" are certainly more probative of material issues of pain and
suffering than any other available evidence that the government could
possibly procure from secondary sources.

**4. The admission into evidence of Pena\'s statements will best serve
the interests of justice**

Where, as here, the evidence is conflicting on some relevant issues of
fact, the interests of justice require that the affidavit and the
videotape be admitted for the jury\'s consideration. In particular, by
admitting the videotape into evidence, the triers of fact will have the
opportunity to hear both accounts of the telephone conversation, to
judge the credibility of both Dr. Morvant and Pena, to examine the
demeanor of both individuals, to draw their inferences about what
transpired and why, and to determine the weight to be given the contents
of those statements. [Cf.]{.underline} [Johnson v. Wm. C. Ellis & Sons
Iron Works, Inc.]{.underline}, 604 F.2d 950, 958-959 (5th Cir. 1979)
(district court erred in denying jury an opportunity to exercise its
judgement concerning disputed issue when there were facts upon which
jurors in the exercise of their impartial judgment might a reach
different conclusion).

Admittedly, the Defendants did not have the opportunity to cross-examine
Pena about the allegations set forth in his affidavit and the videotape,
the primary rationale for the hearsay rule. However, as we have
demonstrated here, the federal courts have admitted hearsay statements,
often in the context of criminal cases where the harm of admitting the
statement is much greater, because those statements contained sufficient
indicia of reliability. Indeed, courts have admitted such hearsay
statements in the absence of cross examination. [See]{.underline},
[e.g.]{.underline}, [United States v. Ward]{.underline}, 552 F.2d 1080,
1082-1083 (5th Cir. 1977); [Barker v. Morris]{.underline}, 761 F.2d
1396, 1401 (9th Cir. 1985) (\"Thus, circumstances other than prior
cross-examination of the declarant by the defendant can show evidence to
be trustworthy to a degree that warrants its submission to the
jury.\")([cert. denied]{.underline}, 474 U.S. 1063 (1986).

Moreover, many persons who have AIDS and who claim to have been the
victims of discrimination have life threatening conditions. Under the
best of circumstances, the testimony of such persons regarding their
claims of disability discrimination should unquestionably be preserved
by deposition in accordance with Rule 27 of the Federal Rules of Civil
Procedure, allowing the adverse party an opportunity to cross-examine
the deponent. In some exceptional instances, however, such as here, the
exigencies of the situation do not lend themselves to preserving
testimony by deposition in an adversarial context. In fact, as events
unfolded here, there were only eleven days between the time the
Department of Justice first contacted Dunne and Pena and the date of
Pena\'s death. [See]{.underline} Exh. 19. Moreover, Pena\'s statements
were prepared at the earliest stage of the Department\'s investigation
and well before this action was filed in October, 1993. The exigencies
of the situation simply did not provide a realistic opportunity to
obtain an order pursuant to Rule 27. The affidavit and the videotape
were the most reasonably procurable evidence at that time and under the
circumstances of Pena\'s impending death. It is precisely in an
exceptional situation such as this that the court should rely on the
residual hearsay exception to admit trustworthy evidence to facilitate
the purpose of the Fed. R. Evidence 804(b)(5): \"\[the\] ascertainment
of truth and the fair adjudication of the controversies.\"
[Nowell]{.underline}, 792 F.2d at 1314.

**5. Plaintiff provided timely notification of its intent to offer the
statements**

The government clearly has satisfied its notice obligations under Fed.
R. Evid. 804(b)(5). [See]{.underline} [U.S. v. Atkins]{.underline}, 618
F.2d 366, 372 (5th Cir. 1980) (evidence can be admitted under Fed. R.
Evid. 804(b)(5) only if the proponent notifies the opposing party of its
intention to rely on statements in advance of trial). The Department of
Justice provided a copy of the four-page Pena affidavit, the videotape
and the accompanying declaration regarding the videotape to the
Defendants in January 1994. [See]{.underline} Plaintiff\'s Response to
Defendant Morvant\'s Requests for Production of Documents, Request No.
9. Moreover, on August 2, 1994, the government advised opposing counsel
in writing that it intended to offer the statements as evidence.
[See]{.underline} Exh. 35. Thus, the Defendants have been provided with
the particulars of the statements and have had more than ample notice,
in advance of trial, that the government intended to offer the Pena
statements.

**B. The probative value of the statements is not outweighed by any
dangers of prejudice or confusion**

Although evidence is relevant, it may nevertheless be excluded in the
court\'s discretion \"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.\" Fed. R. Evid. 403.

When the probative value of the affidavit and the videotape is weighed
against whatever unfair prejudice might ensue as the result of their
admission into evidence, it is clear that the probative value, given the
facts of this particular case, far outweighs any prejudicial effects.

This is particularly true for both the affidavit and the videotape.
Although the videotape presents factual issues in a more emotional
context than the affidavit, the videotape is the only way in which Pena
will have \"his day in court.\" Pena\'s delivery of the statement is
controlled and matter-of-fact. His appearance is not unpleasant, and his
demeanor is calm. In sum, the tape is neither inflammatory nor
sensationalized. [See]{.underline}, [e.g.]{.underline}, [Walls v. Armour
Pharmaceutical]{.underline}, 832 F. Supp. 1505, 1508-09 (M.D. Fla. 1993)
(videotaped deposition of child who died from AIDS held admissible in
light of detailed limiting instructions and the fact that probative
value outweighed prejudice); [see]{.underline} also [U.S. v.
Tibbetts]{.underline}, 646 F. 2d 193, 195 (5th Cir. 1981) (videotape of
talk show during which a tax resister remarked about his reasons for
refusing to file tax returns was admissible under Rule 403 to show his
motive or intent). Moreover, the presentation of the videotape, which is
less than seven minutes, long will not consume any appreciable trial
time, and the court may, if necessary, give limiting instructions to the
jury regarding the presentation of the videotape.

In addition, the videotape has the greatest potential to clarify issues
of fact and to address the evidentiary problem created by Pena\'s death,
namely that his unavailability may unfairly credit Dr. Morvant\'s
version of events unless Pena\'s videotaped statement is admitted.
Accordingly, whatever prejudice might arise by showing the jury the
videotape is significantly diminished by the importance that the tape
plays in allowing the jury to hear both sides of the story.

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

In light of the totality of circumstances surrounding the preparation of
the affidavit and the videotape, the demonstrated trustworthiness of
those material statements, the existence of independent corroborative
evidence of their reliability, and the fact that these statements remain
the only other first-hand account of the Pena-Morvant telephone
conversation, and the only first-hand account of how Pena reacted to
being sent to another dentist, the United States respectfully requests
that this Court grant its motion in limine to admit the affidavit (Exh.
20), the videotape (Exh. 23), and the transcript of the videotape (Exh.
24) into evidence pursuant to the residual hearsay exception of Fed. R.
Evid. 804(b)(5).

Respectfully submitted,

EDDIE J. JORDAN, JR. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

Eastern District of Civil Rights Division

Louisiana

[                       ]{.underline}

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]: ^?^ The letter was addressed to the Coordination and Review
    Section of the Department of Justice and was not forwarded to the
    Public Access Section until June 1993. [See]{.underline} Exh. 19.

[^2]: ^?^ The affidavit consists of: a) introductory remarks concerning
    the preparation of the videotape and the reason for its preparation;
    b) a statement regarding the history of his dental care provided by
    Dr. Morvant; c) a transcript of the February 1993 telephone
    conversation, as recalled by Pena; d) Pena\'s reaction to the
    telephone conversation; and e) an account of a discussion Pena had
    with Patrick Dunne regarding Dr. Morvant.

[^3]: ^?^ Dr. Kathryn Creely is also referred to as Dr. Creely Sturm or
    Dr. Sturm.

[^4]: ^?^ Kenneth Witkowski, a friend of Pena\'s, testified under oath
    during his deposition that he helped Pena record his recollection of
    the telephone conversation by typing it as Pena was telling him
    \"what he said and what Dr. Morvant said.\" [See]{.underline} Exh.
    21 at 17-18.. According to Patrick Dunne, Pena organized the video
    and dictated changes to the initial statement. [See]{.underline}
    Exh. 22 at 79, 84.

[^5]: ^?^ There are no substantive differences between the affidavit and
    the videotape. [See]{.underline} the transcribed version of the
    videotape prepared at the request of the Defendants and appended
    hereto as Exh. 24.

[^6]: ^?^ In addition, Pena also signed a declaration, dated July 5,
    1993, under penalty of perjury, declaring that he had viewed the
    videotape and that the facts presented in the videotape were
    accurate. [See]{.underline} Exh. 25.

[^7]: ^?^ Subsequently, on July 29, 1993, the Department notified Dr.
    Morvant that it had received an additional complaint alleging that
    his office had denied another person, xxxxxxxx, the opportunity to
    receive dental cleaning because of his HIV status. The Department
    asked Dr. Morvant to respond to that allegation as well.
    [See]{.underline} Exh. 27. On August 10, 1993, Dr. Morvant denied
    the substantive allegations concerning xxxxxxxx. [See]{.underline}
    Exh. 28.

[^8]: ^?^ The government does not intend to offer that portion of the
    statement and the videotape that pertains to the discussion Pena had
    with Patrick Dunne regarding Dr. Morvant. [See]{.underline} Exh. 20
    at pp. 3-4. That part of the statement can be redacted.

[^9]: ^?^ The first four exceptions under 804(b) are: (1) former
    testimony; (2) statement under belief of impending death; (3)
    statement against interest; and (4) statement of personal or family
    history.

[^10]: ^?^ Both Fed. R. Evid. 803(24) and Fed. R. Evid. 804(b)(5)
    contain the identical language and the \"discussion pertaining to
    one of them is equally applicable to the other.\"
    [Nowell]{.underline}, 792 F. 2d at 1314, n. 2, citing, J. Moore 11
    Moore\'s Federal Practice, § 803(24)\[7\] (2d ed. 1982).

[^11]: ^?^ The \"dying declaration\" exception to the hearsay rule, Fed.
    R. Evid. 804(b)(2), is defined as follows:

    > In a prosecution for homicide or in a civil action or proceeding,
    > a statement made by a declarant while believing that the
    > declarant\'s death was imminent, concerning the cause or
    > circumstances of what the declarant believed to be impending
    > death.

[^12]: ^?^ [Cf]{.underline}. [Central Freight Lines, Inc. v.
    N.L.R.B.]{.underline}, 653 F.2d 1023, 1026 (5th Cir. 1981) (Board
    erred in admitting affidavit concerning conversation between manager
    and deceased employee, absent circumstantial guarantees of
    trustworthiness equivalent to specified hearsay exceptions,
    including absence of evidence that deceased employee had belief in
    his impending death.)

[^13]: ^?^ Pena saw Morvant several times a year, felt that he and Dr.
    Morvant \"had a cordial, frank doctor-patient relationship\" and
    \"always enjoyed\" going to Dr. Morvant\'s office. [See]{.underline}
    Exh. 20 at 2-3. Indeed, Dr. Morvant described his relationship with
    Pena in similar terms. Morvant stated he had \"good relationship\"
    with Pena and that they \"were friends.\" [See]{.underline} Exh. 30
    at 17-18.

[^14]: ^?^ While corroborating evidence may not be considered in
    evaluating the \"particularized guarantees of trustworthiness\" of
    hearsay statements when the case involves the Confrontation Clause
    of the Sixth Amendment, [Idaho v. Wright]{.underline}, 497 U.S. 805,
    822 (1990), such a limitation does not apply in civil cases.
    [See]{.underline} [F.T.C. v. Figgie Intern Inc.]{.underline}, 994
    F.2d 595, 608 (9th Cir. 1993), [cert. denied]{.underline}, 114 S.Ct.
    1051 (1994).