The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NAWAPORN PAWANANUN, ) CASE NO. 1:20CV1081
)
Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO
)
vs. )
)
MICHAEL A. PETTIT, ) OPINION AND ORDER
)
Defendant. )
CHRISTOPHER A. BOYKO, J.:
Before the Court are the parties’ challenges to the admission of certain evidence at Trial.
The Court addresses those challenges as follows.
I. BACKGROUND
Plaintiff initiated this lawsuit against her ex-husband for the wrongful removal of her two
minor children from Thailand to the United States. The parties agreed and stipulated that the
children’s habitual residence is Thailand, Defendant removed the children from Thailand to the
United States and, by removing the children, Defendant interfered with Plaintiff’s custodial
rights.
Defendant defends his removal by arguing that the children’s return to Thailand “would
expose them to physical and/or psychological harm and otherwise place them in an intolerable
situation under Article 13(b) of the Convention.” (Doc. 18, PageID: 235). Specifically,
Defendant claims that the “sexual predation of Plaintiff’s significant other, Roger Ian Hardy…,
and Plaintiff’s indifference to same present a grave risk in that the return of the children would
expose the children to continued physical and psychological harm and an intolerable situation.”
(Id.).
II. LAW & ANALYSIS
A. Motion in Limine
“Motions in limine are generally used to ensure evenhanded and expeditious management
of trials by eliminating evidence that is clearly inadmissible for any purpose.” Indiana Ins. Co.
v. General Electric Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) (citing Jonasson v. Lutheran
Child and Family Serv., 115 F.3d 436, 440 (7th Cir. 1997)). A “motion in limine, if granted, is a
tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment
of the evidentiary issue…the trial court is certainly at liberty ‘* * * to consider the admissibility
of the disputed evidence in its actual context.’” State v. Grubb, 28 Ohio St. 3d 199, 201-202
(1986) (citing State v. White, 6 Ohio App.3d 1, 4 (1982)). “Indeed, even if nothing unexpected
happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a
previous in limine ruling.” Luce v. United States, 469 U.S. 38, 41 (1984).
The Sixth Circuit has instructed that the “better practice” is to address questions
regarding the admissibility of broad categories of evidence “as they arise.” Sperberg v.
Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). “[A] court is almost always
better situated during the actual trial to assess the value and utility of evidence.” Owner-
Operator Independent Drivers Ass’n v. Comerica Bank, 2011 WL 4625359, at *1 (S.D. Ohio
Oct. 3, 2011). It is noteworthy that denial of a motion in limine does not necessarily mean that
the evidence, which is the subject of the motion, will be admissible at trial. Ind. Ins. Co. v. Gen.
Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004).
The rules of evidence state that relevant evidence is evidence tending 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 that “is not
relevant is not admissible.” Fed. R. Evid. 402. Moreover, courts can exclude relevant evidence
if its probative value is substantially outweighed by certain dangers, like unfair prejudice or
confusing the issues. Fed. R. Evid. 403. And generally, evidence of a person’s character is
irrelevant and not admissible to prove that the person acted in accordance with the character.
Fed. R. Evid. 404.
Plaintiff anticipates that Defendant will introduce certain documents that reflect
investigation efforts into Roger Ian Hardy by the medical boards of Massachusetts, New
Hampshire and Maine (“Board Reports”). (Doc. 50, PageID: 427). According to Plaintiff, the
Board Reports reflect irrelevant character evidence of Hardy that the Court should exclude.
Defendant counters and argues that the Board Reports are admissible as a Public Record
exception to the general rule prohibiting hearsay. (Doc. 55, PageID: 573). According to
Defendant, the Board Reports reflect a thorough investigation of Hardy by a public office, are
trustworthy and credible, and should be admitted into evidence. (See generally, id.). Plaintiff
replies in support of her Motion, arguing that Defendant’s opposition misses the point—the issue
is not one of admissibility but rather of relevance. (Doc. 57, PageID 581). According to
Plaintiff, “Defendant makes no attempt to explain how unproved, non-criminal allegations of
professional misconduct against Hardy made by adult patients seven years ago, have any
probative value in determining whether Plaintiff’s association with Hardy poses a grave risk of
harm to the children today.” (Id.).
The Court agrees with Plaintiff. The Board Reports concern allegations that Hardy, as a
medical doctor, sexually assaulted his patients. Throughout the course of their investigation,
Board investigators interviewed numerous witnesses. The Board ultimately sought Hardy’s
suspension because he “represent[ed] an immediate and serious threat to the health, safety and
welfare of the public[.]” (Doc. 17-2, PageID: 183). Soon after, Hardy voluntarily surrendered
his medical license in January of 2014. (Doc. 17-3, PageID: 223).
While the investigative documents may be admissible, they must also be relevant to the
claims of the case. As Plaintiff correctly highlights, Defendant does not argue the relevance of
the records in proving that the children would face a grave risk of harm or an intolerable
situation should they return to Thailand. This leaves the Court to make the relevance argument
for Defendant, which it will not do. While the Board Reports may reflect Hardy’s “sexual
predation,” Defendant does not respond to Plaintiff’s concerns of using character evidence in this
manner. Moreover, there has been no attempt to link the abuse of adult-medical patients to the
concern at issue here—that is, the risk of harm to the children.
Therefore, Plaintiff’s Motion to exclude the Board Reports is GRANTED. Although this is
the Court’s substantive findings on the Board Reports, the Court reserves the right to revisit this
ruling at trial depending on how the evidence is presented and if it can be shown the excluded
evidence is relevant and offered for a proper purpose.
B. Deposition Objections
Admirably, the parties deposed four witness based in Thailand via remote means. During
those depositions, the parties made various objections for the Court’s consideration. The Court
rules as follows. The Court strikes all sustained objections and will not consider the testimony as
evidence. As discussed above however, the Court reserves the right to re-visit these rulings
during trial.
i. Allesandro Stasi
Page Line(s) Objection Court Ruling
11 1-7 Leading, lack of foundation, assuming facts not OVERRULED
in evidence.
35 16-18 Misleading OVERRULED
45 1-4 Lack of Foundation SUSTAINED
ii. Bruce A. Lasky
Page Line(s) Objection Court Ruling
13-14 23-1 Hearsay OVERRULED
15 19-23 Lack of Foundation OVERRULED
27-28 25-20 Hearsay SUSTAINED
28-29 24-16 Hearsay OVERRULED
33 14-19 Hearsay SUSTAINED IN PART1
35 7-15 Hearsay OVERRULED
35 17-20 Hearsay OVERRULED
35 22-23 Hearsay OVERRULED
42 18-23 Privilege SUSTAINED
44 17-18 Privilege SUSTAINED
iii. Thaweeporn “Umy” Hardy
Page Line(s) Objection Court Ruling
8 13-17 Non-Responsive; Lack of Foundation SUSTAINED
13 16-17 Hearsay SUSTAINED
15 9-10 Lack of Foundation SUSTAINED
15 12 Non-Responsive SUSTAINED
16 10-14 Lack of Foundation SUSTAINED
16 21-24 Lack of Foundation; Non-Responsive SUSTAINED
17 1-4 Hearsay SUSTAINED
18 4 Hearsay SUSTAINED
21 10-23 Hearsay; Lack of Foundation SUSTAINED IN PART2
1 The following is stricken from the response – “based upon the discussion and Mia indicating that she had a fear of
Hanna’s father.” (Doc. 53-1, PageID: 477, Lines 17-19).
2 The following is stricken from the response –
A: …She hesitate to keep or not keep, but then she thought about my children, if
they rejected him, he’s going to be not together with the family and that going to
25 20-24 Leading; Lack of Foundation SUSTAINED
29 21-24 Hearsay; Lack of Foundation SUSTAINED
30 15-20 Lack of Foundation SUSTAINED
31 1-8 Hearsay OVERRULED
31 17-19 Hearsay OVERRULED
32 10-13 Lack of Foundation; Hearsay SUSTAINED
32 15 Lack of Foundation; Hearsay OVERRULED
33-34 22-3 Lack of Foundation SUSTAINED
36 10-22 Hearsay SUSTAINED
37 1-15 Lack of Foundation SUSTAINED
37-38 19-25 Lack of Foundation SUSTAINED
38-39 25-10 Lack of Foundation SUSTAINED IN PART3
39 13-17 Lack of Foundation SUSTAINED
40 3-12 Hearsay SUSTAINED
47 18-24 Leading OVERRULED
53 4-5 Lack of Foundation SUSTAINED
60 18-21 Attorney-Client Privilege; Legal Conclusion OVERRULED
61-62 12-22 Lack of HIPAA Authorization OVERRULED
65 3-9 Speculation OVERRULED
75-76 24-1 Attorney-Client Privilege OVERRULED
101 21-23 Speculation SUSTAINED
iv. Roger Ian Hardy
Page Line(s) Objection Court Ruling
17 7-17 Leading SUSTAINED
21-22 24-11 Speculation SUSTAINED IN PART4
22 25 Inquiring into matters protected by HIPAA OVERRULED
23 10-16 Inquiring into matters protected by HIPAA OVERRULED
23 19-24 Inquiring into matters protected by HIPAA OVERRULED
24 7-20 Referring to a document not in evidence OVERRULED
24-25 25-8 Hearsay OVERRULED
25-26 1-16 Non-Responsive OVERRULED
be bad for the children, so she decided to give him a visa, but she admit to me
later she feel bad.
Q: Who felt bad?
A: The immigration police officer.
(Deposition of Ms. Hardy, Page 21, Lines 15-23).
3 The following is stricken from the response – “…maybe the reason is Natt is there is so he has a chance to talk to
her or something.” (Deposition of Ms. Hardy, Page 39, Lines 8-10).
4 The following is stricken from the response – “because I’m presuming, Mike, I see is listening here, who will then
duly report back to Umy. So I need to be careful –” (Doc. 58-2, PageID: 609, Lines 5-7).
26-27 25-2 Referring to information not offered into OVERRULED
evidence
27 6-22 Referring to information not offered into OVERRULED
evidence
27-28 24-2 Speculation SUSTAINED
28 3-4 Hearsay SUSTAINED
29 16-21 Hearsay SUSTAINED IN PART5
31 23-24 Lack of Foundation OVERRULED
33 15-22 Referring to a document not offered into OVERRULED
evidence
34 20-23 Referring to a document not offered into OVERRULED
evidence
38 3-10 Leading SUSTAINED IN PART6
39 1-3 Offering a legal conclusion SUSTAINED
68 17-21 Assumes facts not in evidence OVERRULED
69 10-12 Assumes facts not in evidence OVERRULED
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
Dated: October 20, 2020
5 The following is stricken from the response – “The school also called Nat in to say “Why is this man having these
outbursts in front of the children?” (Id., PageID: 616, Lines 19-21).
6 The following is stricken from the response – “Because, again, this has been part of Umy’s lawsuit.” (Id., PageID:
625, Lines 7-8).