Excluding Past Lawsuits Due to Lack of Relevance

Darren Chaker discusses what the federal evidence rules lay out precisely what is meant by “relevant evidence”:

“Relevant evidence” means any 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 it.”

Even if a court should find that a litigant has demonstrated some tenuous showing of relevance for the past lawsuits, a litigant argues that evidence of such lawsuits should still be excluded because of the prejudicial effect such evidence would have on a trier-of-fact.

In Outley v. City of New York, 837 F.2d 587 (2nd Cir. 1988), the Second Circuit discussed this very issue. In Outley, the plaintiff had brought a civil rights action against New York city and several individual police officers, and the defendant sought to introduce evidence of plaintiff’s past lawsuits in order to portray him as a “chronic litigant.” Outley, 837 F.2d at 591. Noting that the “charge of litigiousness is a serious one, likely to result in undue prejudice against the party charged,” the court stated:

…a plaintiff’s litigiousness may have some slight probative value, but that value is outweighed by the substantial danger of jury bias against the chronic litigant. The trial court has a duty to prevent exploitation of this prejudice. Id. at 592.

The court then looked to two federal rules of evidence for guidance. It noted that under FRE 403, a district court is provided broad discretion in making determinations under that rule. See id. It also found FRE 404(b), dealing with character evidence, to be relevant, stating that:

Litigiousness is the sort of character trait with which Rule 404(b) is concerned. Evidence that Outley had filed several lawsuits against the City, and in particular against police officers, would undoubtedly cause the jury to question the validity of Outley’s current claim.

Id. at 592-593. The court, observing that, “[t]he total impact of the evidence was to show that Outley is ‘claim-minded,’ and that the claims before the court were just two more in a long line of lawsuits,” it found the evidence of past lawsuits to be inadmissible.

Similarly, there can be no serious doubt that in the instant action the purpose of Defendant attempting to present the evidence of past lawsuits is to attack the Plaintiff’s character (or visa versa), and to portray her as a “chronic litigant,” or as “claim-minded.” However, just as in Outley, courts should find that the substantial prejudice that would result to Plaintiff should such evidence be admitted outweighs any relevance that Defendant could possibly show. Indeed, whereas the Second Circuit in Outley deemed past lawsuits against the same defendant – the City and police officers – to be inadmissible, this court should find it even easier to disallow evidence of past lawsuits due to relevance.

In the case of Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771 (7th Cir. 2001), the Seventh Circuit also dealt with this issue. In Mathis, an African-American plaintiff had brought claims of age and race discrimination against the defendant. See Mathis, 269 F.3d at 773. Defendant had tried to introduce evidence that the plaintiff had sued at least six other car dealerships for discrimination, and the lower district court had deemed such evidence inadmissible. See id. at 774. The appeals court, in discussing whether the lower court’s decision was the correct one, stated:

… both the Second Circuit in Outley, and this court in Gastineau recognized that the danger of unfair prejudice from a charge of litigiousness might be minimized if the defendant could show that the plaintiff had a history not merely of filing numerous lawsuits, but of filing fraudulent ones…

Id. at 776. The court then went on to observe that defendant Phillips had indeed presented evidence that plaintiff Mathis was fabricating claims of discrimination through potentially fraudulent means, but, noting that the lower court is endowed with great discretion in deciding whether to admit evidence, the Second Circuit refused to reverse the lower court’s decision. See Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 408-09 (5th Cir.2004) (concluding that district court did not abuse its discretion by excluding evidence of past lawsuits against defendant because any probative value was outweighed by its prejudicial and inflammatory nature and “its tendency to confuse the jury with tangential litigation”); Yellow Bayou Plantation, Inc. v. Shell Chemical, Inc., 491 F.2d 1239, 1242-43 (5th Cir.1974) (upholding district court’s exclusion of list of prior lawsuits against defendant because evidence was “of such faint probative value and high potential for unfair prejudice”). This evidence is excluded under Rule 403 as any probative value it may have is substantially outweighed by unfair prejudice and considerations of delay and time-wasting on collateral issues.

Further, there have been numerous rulings stating that a past litigation history – sometimes involving hundreds of suits – is of little relevance when deciding whether an instant lawsuit is meritorious, or that the plaintiff is a vexatious litigant. See Wilson v. Pier 1 Imports, Inc., 2006 WL 213823, *3-*4 (E.D. Cal) (finding that fact of multiple previous lawsuit filings by plaintiff does not prove frivolousness in instant matter or that the case lacked merit); Doran v. Vicorp Restaurants, 2005 WL3577148, *3 (C.D. Cal 2005) (“Initially, the Court notes that Doran is not a vexatious litigant merely because he has filed 219 lawsuits”); Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860, 866 (C.D. Cal. 2004) (“Clearly, raising multiple claims, by itself, is not unethical or vexatious”); Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 776 (7th Cir. 2001) (excluding evidence of prior lawsuits because they “could also have given rise to the impermissible inference that, because [plaintiff] was given to filing frivolous lawsuits, the jury should not credit his claims in this suit”); Raysor v. Port Authority, 768 F.2d 34, 40 (2d Cir. 1985) (excluding questions about past lawsuits because plaintiffs “litigiousness may have some slight probative value, but that value is outweighed by the substantial danger of jury bias against the chronic litigant”); Bryce v. Trace, Inc., 2008 WL 906142, *1 (W.D. Oka.2008) (excluding evidence of prior lawsuit by plaintiff as irrelevant and prejudicial).

Access to our courts is a basic and vital constitutional rights which may only be curtailed under the most exigent of circumstances. In Re Oliver, 682 F.2d 443, 445 (3rd Cir. 1982). Thus, the issuance of a prefiling order restricting such access is an extreme measure which should rarely be imposed. DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). This is not to say that the Court’s inherent power to maintain the orderly and expeditious administration of justice is so neutered as to be meaningless, but in the instance of a prefiling order it must be carefully and judicially applied.

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