Zalaski et al v Hartford, et al

Filing 142

ORDER granting in part and denying in part 131 Motion in Limine; granting 131 Motion to Preclude; granting in part and denying in part 132 Motion in Limine. See Attached Order. Signed by Judge Vanessa L. Bryant on 11/18/2011. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LISA ZALASKI,
ANIMAL RIGHTS FRONT, INC., AND
DEREK OATIS
PLAINTIFFS,

v.
CITY OF HARTFORD AND
SERGEANT ALBERT
DEFENDANTS.

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: CIVIL ACTION NO. 3:08cv601(VLB)
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: NOVEMBER 18, 2011
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Order on Motions in Limine [Dkt. #s 131 and 132]

A. Defendants’ [Dkt. # 131] Motion in Limine
The Court denies Defendants’ motion in limine to preclude the testimony of
Attorneys Mark Dumas, Edward Schenkel or other counsel of the Crumbie Law
Group or the City of Hartford as the Court’s previous orders on Plaintiffs’ motions
for sanctions were not evidentiary rulings. See [Dkt. #s 59 and 60]. However,
Plaintiffs have failed to establish what material fact at issue such testimony
would tend to prove or disprove and therefore has not established the relevance
of such testimony. Accordingly, such testimony may not be offered.
B. Plaintiffs’ [Dkt. # 131] Motion in Limine
Plaintiffs’ objection to permitting the testimony of Defendant Sergeant
Albert is overruled as Fed. R. Civ. P. 37 instructs that the least restrictive sanction
suitable to ameliorating the adverse effect of the failure comply should be
granted and precluding Albert’s testimony would be a particularly severe and

prejudicial sanction particularly in light of Plaintiffs’ foregone opportunity to
ameliorate any prejudice it may have suffered.
Plaintiffs’ objection to the police dispatch report on the basis of hearsay is
sustained in part. The police reports themselves are admissible as a business
record under Fed. R. Evid. 803(6) or a public record under Fed. R. Evid. 803(8).
Tokio Marine Management, Inc., v. M/V Zim Tokyo, Nos.91CIV.0063, 1993 WL
322869, at *9 (S.D.N.Y. Aug. 17 1993) (citing Parsons v. Honeywell, Inc., 929 F.2d
901, 907 (2d Cir. 1991)). The entries in the police reports “which result from the
officer’s own observations and knowledge may be admitted but [] statements
made by third persons under no business duty to report may not.” Id. (internal
quotation marks and citation omitted). Statements by third persons recorded
within the police report should be considered hearsay within hearsay and
therefore must also be subject to an independent hearsay exception to be
admissible under Fed. R. Evid. 805. Therefore Defendants will be permitted to
offer the police report redacted to exclude any hearsay included within the report.
Accordingly, any potential testimony by Defendant Albert and Officer Hart
regarding the police report may not include any hearsay.
Plaintiffs’ objection to the testimony of Joseph Marfuggi and Lieutenant
Bergenholtz is overruled. Although Defendants concede that these individuals
were not formally disclosed pursuant to Fed. R. Civ. P. 26, Defendants have
indicated that Plaintiffs have had ample notice that these individuals had relevant
information. While Plaintiffs were not notified of the existence of these
individuals during the discovery period, Plaintiffs would have had good cause

under Fed. R. Civ. P. 16(b) to request the Court to permit Plaintiffs to conduct
discovery with respect to these individuals before trial.

Since the discovery

rules afforded Plaintiffs a remedy that Plaintiffs did not pursue, Plaintiffs cannot
now argue prejudice as a basis for precluding the testimony of these witnesses
when they could have but elected not to obtain discovery.
Plaintiffs’ objection to the contract between Riverfront Recapture and Feld
Entertainment is sustained in part. Defendants may offer the contract subject to
Defendants showing the relevance of and authenticating the contract.
The Court notes that Defendants in the Joint Trial Memorandum have
objected to Plaintiffs' exhibits 8, 15, 17, and 18. Those objections are overruled
as Defendants failed to comply with the Court’s order to submit motions in limine
in connection with each parties’ objections raised in the Joint Trial Memorandum.
See [Dkt. #124].

IT IS SO ORDERED.

________/s/________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: November 18, 2011