Nermina Ikanovic vs Sahra Muhumed Abdallah, 55-CV-21-4478, 25072022_Memorandum_0 (Minnesota State, Olmsted County, District Court Jul. 25, 2022) (2024)

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`55-CV-21-4478
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`Filed in District Court
`State of Minnesota
`7/25/2022 2:58 PM
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`These motions are based upon the supporting Memorandum and Affidavit of
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`Counsel, the pleadings, and papers on file in this action, and upon such argument and
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`evidence as may be presented prior to or at the hearing of this matter.
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`MEMORANDUM
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`1. INTRODUCTION
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`Defendant hit Ms. Ikanovic with her car while Ms. Ikanovic was walking to work
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`in her employer’s parking lot in the early morning of October 21, 2017. Progressive
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`Insurance settled with Ms. Ikanovic for the policy limit on a Drake v. Ryan Release.
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`Progressive Insurance has since withdrawn from representation, leaving the defense in the
`hands of the excess insurer, AAA. This case was scheduled for trial on January l8, 2022
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`but was rescheduled. It is now on-call for the week of August 15, 2022.
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`Defendant filed their Amended Witness list on January 5, 2022, adding the name of
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`Thomas Richard Hasvold to the list. Mr. Hasvold is the adjuster for Progressive Insurance,
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`the liability carrier who settled with Plaintiff. Allegedly, Mr. Hasvold will testify that he
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`went to the security department at Mayo Clinic, Plaintiff s employer, after the collision to
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`see their surveillance video. Defendant claims that Mr. Hasvold will testify as to what the
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`video showed when Mr. Hasvold saw it. Allegedly, he will testify that Plaintiff walked into
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`Defendant’s moving car. Defendant also claims that Mr. Hasvold’
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`s testimony will
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`corroborate Defendant’s daughter’s testimony who was in the passenger seat when
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`Defendant hit Plaintiff with her car. His testimony however will contradict Defendant’s
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`own, who testified at her deposition that the wind blew Plaintiff into her car while the car
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`55-CV-21-4478
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`Filed in District Court
`State of Minnesota
`7/25/2022 2:58 PM
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`was stopped. Defendant also claims that the Video itself is not available. Defendant claims
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`that Counsel for Progressive sent a subpoena to Mayo Clinic, but they do not have a copy
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`of it. Defendant did not provide a copy to Plaintiff. Plaintiff does not have a copy and has
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`never seen the video because Mayo security erased it before Plaintiff asked for a copy.
`2. THIS COURT MAY EXCLUDE WITNESSES FROM THE COURTROOM
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`PURSUANT TO MINN. R. EVID. 615.
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`Minn. R. Evid. 615 authorizes the exclusion of witnesses from the courtroom, and
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`states: At the request of a party the court may order witnesses excluded so that they cannot
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`hear the testimony of other witnesses, and it may make the order of its own motion.
`The purpose of the sequestration rule is to prevent witnesses from being influenced by the
`testimony of earlier witnesses. See State v. Ellis, 271 Minn. 345, 364, 136 N.W.2d 384
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`(1965) (purpose of sequestering witnesses “is to remove any possibility that a witness
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`waiting to testify may be influenced consciously or subconsciously by the testimony of
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`other witnesses testifying in his presence and to afford opposing counsel the opportunity
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`of bringing out in cross-examination any discrepancies in the testimony of the various
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`witnesses”).
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`The sequestration of all non-party witnesses in this case would help to guarantee the
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`fair trial of this matter. The facts of this case are sharply contested, and the testimony of
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`the witnesses will be essential to the jury's resolution of the factual disputes. Preventing
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`the material and expert witnesses from hearing the testimony of the other witnesses will
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`best enable the jury to assess the credibility of those witnesses fairly and accurately.
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`55-CV-21-4478
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`Filed in District Court
`State of Minnesota
`7/25/2022 2:58 PM
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`3. MR. HASVOLD’S TESTIMONY IS PREJUDICIAL EVIDENCE PURSUAfl
`TO MINN. R. EVID. 403.
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`Minn. R. Evid. 403 allows the court t0 exclude evidence if its probative value is
`substantially outweighed by the possibility of unfair prejudice. Minn. R. Evid. 403 states
`that “[a]lthough relevant, evidence may be excluded if its probative value is substantially
`outweighed by the danger 0f unfair prejudice, confusion of the issues, or misleading the
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`jury, or by considerations of undue delay, waste of time, or needless presentation of
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`cumulative evidence.” (Emphasis added.) See State v. Carlson, 268 N.W.2d 553, 559
`(Minn. 1978) (“Relevant evidence is inadmissible, however, if the tendency of the evidence
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`t0 arouse the jury’s emotions of unfair prejudice, hostility, or sympathy substantially
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`outweighs the probative value of the evidence”). See also State v. Ketter, 364 N.W.2d 459,
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`464 (Minn. Ct. App. 1985) (trial court within discretion in excluding expert testimony
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`when testimony would confiise jury and waste time); State v. Zimmer, 487 N.W.2d 886,
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`888 (Minn. 1992) (any relevance of Code of Canon Law in case for trespass on church
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`property outweighed by prejudicial effect and confusion that would result from admitting
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`evidence).
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`In the present matter, any minimal probative value to the testimony by Mr. Hasvold
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`concerning causation or what he allegedly saw on a surveillance video would be
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`outweighed by the danger of undue prejudice to Plaintiff and because of the substantial
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`danger that the evidence will confuse and mislead the jury concerning the issues.
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`55-CV-21-4478
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`Filed in District Court
`State of Minnesota
`7/25/2022 2:58 PM
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`Minn. R. Evid. 403justifies the preclusion Mr. Hasvold’ s testimony. Testimony by a
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`witness describing what the witness believes the cause of the accident to be, because he
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`allegedly saw the security Video which is not available for the jury to see, will only serve
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`to confuse and mislead the jury into thinking that the witness must have a greater
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`knowledge of the events because he allegedly saw what they cannot see in order to judge
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`for themselves. Furthermore, Defendant, her daughter, and Plaintiff have personal
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`knowledge of the events and can testify to such. The jury can assess their credibility and
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`decide who to believe. Mr. Hasvold’s testimony is cumulative, self-serving, not credible
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`and will waste the Court’s time.
`4. MINN. R. EVID. 602 PROHIBITS A WITNESS FROM TESTIFYING IF TEE
`WITNESS LACKS PERSONAL KNOWLEDGE OF THE SUBJECT MATTER
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`Minn. R. Evid. 602 states:
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`A witness may not testify to a matter unless evidence is introduced
`sufficient to support a finding that the witness has personal knowledge
`of the matter. Evidence to prove personal knowledge may, but need
`not, consist of the witness' own testimony. This rule is subject to the
`provisions of rule 703,
`relating to opinion testimony by expert
`witnesses.
`See also Holweger v. Great Northern Ry. Ca, 269 Minn. 83, 95, 130 N.W.2d 354
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`(1964) (co-worker could not render opinion as lay witness as to condition of coupler
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`without personal knowledge); Elsberry v. Great Northern Ry. C0., 265 Minn. 352, 357,
`l2l N.W.2d 716 (1963) (improper foundation for lay witness testimony where not based
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`on personal knowledge).
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`55-CV-21-4478
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`Filed in District Court
`State of Minnesota
`7/25/2022 2:58 PM
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`Mr. Hasvold will allegedly testify to the contents 0f a surveillance video not in
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`evidence. Mr. Hasvold is a liability adjuster for Progressive Insurance. He does not work
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`for Mayo Clinic and was not in the parking lot to personally witness the collision. In
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`other words, Mr. Hasvold did not observe the impact itself. Because he did not witness
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`the impact, he can have n0 personal knowledge as to what happened in the collision. His
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`testimony lacks the proper foundation. He should be precluded from giving such
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`testimony at trial under Minn. R. Evid. 602.
`5. MR. HASVOLD’S TESTIMONY IS NOT THE BEST EVIDENCE OF THE
`CONTENTS OF A SURVEILLANCE VIDEO THAT HE DID NOT PRESERVE,
`PURSUANT TO MINN. R. EVID. 1002.
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`Under the best-evidence rule, an “original writing, recording, or photograph is
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`required” to prove its contents. Minn. R. Evid. 1002; see State v. Carney, 649 N.W.2d 455,
`463 (Minn.2002). A video or motion picture is considered a “photograph” for purposes of
`the rule. Minn. R. Evid. 1001(2). “If data are stored in a computer or similar device, any
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`printout or other output readable by sight, shown to reflect the data accurately,
`is an
`‘original.’ “ Minn. R. Evid. 1001(3). The best-evidence rule “simply prohibits the
`introduction of secondary evidence to establish the contents of a writing where the writing
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`itself is available.” State v. DeGidio, 277 Minn. 218, 220, 152 N.W.2d 179, 180
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`(1967); see Carney, 649 N.W.2d at 463 (holding that the district court did not abuse its
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`discretion in excluding testimony concerning contents of a videotape that was not shown
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`in court, applying the best-evidence rule).
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`55-CV-21-4478
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`Filed in District Court
`State of Minnesota
`7/25/2022 2:58 PM
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`“The [district] court has considerable discretion under Minn. R. Evid. 901(a) in deciding
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`whether evidence has been adequately authenticated or identified...” State v. Dulak, 348
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`N.W.2d 342, 344 (Minn.1984). “The requirement of authentication or identification as a
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`condition precedent to admissibility is satisfied by evidence sufficient to support a finding
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`that the matter in question is what its proponent claims.” Minn. R. Evid. 901(a). Minn. R.
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`Evid. 901(b) provides examples of authentication methods “[b]y way of illustration only,
`and not by way of limitation.”
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`Two methods for authenticating a video are the pictorial-witness theory and the
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`silent-witness
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`theory.
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`In
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`re Welfare 0f S.A.M, 570 N.W.2d
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`162,
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`164—65
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`(Minn.App.l997); see Minn. R. Evid. 901(b)(l), (9). Under the pictorial-witness theory, a
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`witness who observed the
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`video can authenticate
`events depicted on the
`video. SAM, 570 N.W.2d at 164. Under the silent-witness theory, a proponent offers
`evidence of the reliability of the process by which the video was made. Id._at 165.
`SAM. involved the admissibility of a surveillance video from a bus. Id._at 163. The state
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`a
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`offered the testimony of a video technician, who explained how the video was made, stated
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`that the video produced an accurate result, and provided some evidence on the chain of
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`custody. Id.
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`The bus driver “partially authenticated” the video by testifying “that a
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`large portion of it
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`was a fair and accurate representation of what he had witnessed” that
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`day, and there was additional evidence on chain of custody from a police sergeant. Id. This
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`court concluded that “[t]he videotape was properly admitted because it was authenticated
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`according to a method listed in 901(b) and consistent with the broad guideline for
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`authentication set out in [r]ule 901(a): that is, evidence was produced showing that the tape
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`7
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`55-CV-21-4478
`
`Filed in District Court
`State of Minnesota
`7/25/2022 2:58 PM
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`is what its proponent claimed.” 1d. at 166—67. In this case, Defendant’s witness list does
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`not include the names of any Mayo employee who can provide the required information to
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`authenticate the alleged surveillance video. Without authentication,
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`the Video is
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`inadmissible in a trial of this matter. Any reference to its contents is similarly inadmissible
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`and should be excluded.
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`Additionally, Mr. Hasvold is the liability adjuster for Progressive Insurance who
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`knows that evidence must be preserved and shared with Plaintiff. Though Mr. Hasvold saw
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`the Video at Mayo Clinic and Defendant would like him to tell the jury about it, Mr.
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`Hasvold either did not preserve the video and does not have a copy of it or is simply
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`withholding the video from Plaintiff because it
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`is prejudicial
`Spoliation of evidence is the destruction of relevant evidence by a party or potential
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`to Defendant’s case.
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`party to a lawsuit. Hoffman v. Ford Motor Co., 587 N.W.2d 66, 70 (Minn. Ct. App. 1998).
`A district court has authority to impose sanctions against a party who has either
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`intentionally or negligently destroyed evidence. Patton v. Newmar Corp, 538 N.W.2d
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`116, 118-19 (Minn. 1995). Regardless of intent, disposal of evidence is Spoliation when a
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`party knows or should know that the evidence should be preserved for pending or future
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`litigation. 1d. at 118. When one party gains an evidentiary advantage over the opposing
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`party by failing to preserve evidence, a viable and real Spoliation claim exists. See Himes
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`v. Woodings- Verona Tool Works. Inc., 565 N.W.2d 469, 471 (Minn. App. 1997) rev. den.
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`When evidence is under the exclusive control of the party who fails to produce it, a jury
`if produced would have been unfavorable to that
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`may infer that
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`“the evidence,
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`party.” Federated Mut. Ins. C0. v. Lite/afield Precision Components, Inc., 456 N.W.2d 434,
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`8
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`55-CV-21-4478
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`Filed in District Court
`State of Minnesota
`7/25/2022 2:58 PM
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`437 (Minn. 1990). It does not matter whether the destruction of evidence was intentional
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`or accidental, but the spoliator generally must know or should have known that the
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`evidence should be preserved for pending or future litigation, Patton v. Newmar Corp, 53 8
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`N.W.2d 116, 119 (Minn. 1995).
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`Plaintiff is prejudiced by the absence of a video that Defendant and Defendant’s
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`insurer did not preserve. Defendant should not be allowed to profit from the misdeed to
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`Plaintiff’s detriment. Mr. Hasvold should not be allowed to testify.
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`CONCLUSION
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`Based on the foregoing, Plaintiff respectfully requests that this Court enter an order
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`excluding all non-party witnesses from the courtroom during the trial, except while they
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`are testifying and for an order excluding the testimony of Mr. Thomas Hasvold.
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`Dated: July 22, 2022
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`SANDBERG LAW FIRM
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`_
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`'
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`By:
`Elham B. Ha don
`Registration No. 0398698
`Attorney for Plaintiff
`4057 28th Street N.W., Suite 300
`Rochester, Minnesota 55901
`Telephone: (507) 282-3521
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