Sharon Boone Henderson v. George Washington University D / B / Ageorge Washington University Medical Center

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed On: August 29, 2006
No. 05-7054
SHARON BOONE HENDERSON ,
APPELLANT
v.
GEORGE WASHINGTON UNIVERSITY D / B / A GEORGE
WASHINGTON UNIVERSITY M EDICAL CENTER AND M EDICAL
FACULTY ASSOCIATES , AND
M ICHAEL SALEM,
APPELLEES
Before: GRIFFITH , Circuit Judge, and EDWARDS and
SILBERMAN ,* Senior Circuit Judges.
O R D E R
Upon consideration of appellees’ petition for rehearing filed
July 3, 2006, it is
ORDERED that the petition be denied.
Per Curiam

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FOR THE COURT:
Mark J. Langer, Clerk
BY:
Deputy Clerk
* A separate statement of Senior Circuit Judge Silberman
concurring in the denial of rehearing is attached.

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SILBERMAN , Senior Circuit Judge, concurring in the denial
of rehearing:
Although our opinion has passages which could be read as
indicating that we disagree with the district judge’s
determination under Rule 403 to exclude the Jones Report as
plaintiff’s affirmative evidence of negligence, our holding, as set
forth in Section D, 449 F.3d 127, 141 (D.C. Cir. 2006), is more
narrow. It was the refusal of the district judge to allow the
plaintiff to introduce the Jones Report as rebuttal to the
defendant’s evidence of his supposed normal practice and as
rehabilitation of plaintiff’s witness, after defendant’s cross
examination, that is the crucial element in our determination that
the district court abused its discretion.
In other words, as our opinion indicates, it was one thing for
the district court to exclude the Jones Report under Rule 403 (or
404), but quite another to allow defendant to take palpably
unfair advantage of this ruling. If the only issue in the case had
been the judge’s exclusion of the Jones Report as affirmative
evidence, in my view, we would have been obliged to affirm,
under our standard of review of Rule 403 rulings, even were we
to strike a different balance between the Jones Report’s
probative value and prejudice to the defendant. In sum, for Rule
403 jurisprudential purposes, this case is extraordinary.

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