Valanzuolo v. New Haven
RULING ON DEFENDANT'S MOTIONS IN LIMINE: granting in large part 49 Motion in Limine; granting in large part 50 Motion in Limine. Signed by Judge Joan G. Margolis on 4/18/2013. (Rodko, B.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CITY OF NEW HAVEN
3:11 CV 1336 (JGM)
APRIL 18, 2013
RULING ON DEFENDANT'S MOTIONS IN LIMINE
On November 6, 2012, the parties consented to trial before this Magistrate Judge.
(Dkt. #41). In accordance with the Pretrial Order, filed on January 28, 2013 (Dkt. #47), the
bench trial is scheduled to commence on April 29, 2013. In further accordance with the
Pretrial Order, the parties filed their Joint Trial Memorandum on March 5, 2013, and that
same day, defendant filed the pending motions in limine, the first of which is its Motion In
Limine Regarding Building Department (Dkt. #49), and the second of which is its Motion In
Limine Regarding Plaintiff's Damages (Dkt. #50).1 Twenty days later, plaintiff filed his brief
in opposition (Dkt. #53),2 as to which defendant filed its reply brief on April 9, 2012 (Dkt.
I. DEFENDANT'S MOTION IN LIMINE REGARDING BUILDING DEPARTMENT (Dkt. #49)
In this motion, defendant seeks to bar all evidence regarding the conduct of the City's
Building Department and/or Livable City Initiative ["LCI"] prior to January 8, 2010, the date
Five exhibits were attached: copy of Plaintiff's Responses to Defendant's Interrogatories
and Requests for Production, dated January 26, 2012 (Exh. A); copies of case law (Exhs. B-C);
excerpts from plaintiff's deposition, taken on October 17, 2012 (Exh. D); and excerpts from
plaintiff's deposition, taken on September 6, 2012 (Exh. E).
Defense counsel is correct that plaintiff's brief was untimely under the Pretrial Order (Dkt.
#47, ¶ 1(e)), but because it was timely filed under Local Rule 7(a), the Court will consider it
Copies of case law are attached.
of the incident at issue here; plaintiff apparently has had ongoing interactions with LCI in
2001, 2003, 2004, 2008, and 2009. (Dkt. #49, Brief at 1-2). Insofar as plaintiff's claims
under the ADA are against the New Haven Police Department, as opposed to LCI, defendant
argues that this testimony is irrelevant, and "[e]ven if the evidence is relevant as a
background to . . . plaintiff's arrest," there is "danger of unfair prejudice and confusion of
issues." (Id. at 2-3). In his brief in opposition, plaintiff argues that because Mark Stroud
of LCI was present on January 8, 2010 at plaintiff's residence, his knowledge is "directly
relevant" to the issues at trial, and the evidence is neither confusing nor prejudicial. (Dkt.
#53, at 3). In its reply brief, defendant represents that it is willing to stipulate that at the
time of plaintiff's arrest, Stroud was aware that plaintiff had a hearing impairment, but that
there will be prejudice if plaintiff is permitted to introduce evidence that plaintiff was
discriminated against, or treated poorly, by City employees prior to January 8, 2010. (Dkt.
#56, at 2-3).
Plaintiff will be permitted to have Stroud testify briefly about LCI's interactions with
plaintiff in 2009, solely as background to the incident on January 8, 2010, and may, of
course, testify as to any matters that he witnessed on January 8, 2010. Defendant is quite
correct that plaintiff should not be allowed to introduce evidence that plaintiff was
discriminated against, or treated poorly, by City employees prior to January 8, 2010.
However, the danger of unfair prejudice and confusion is non-existent in that this is a trial
to the court, and not to a jury.
Therefore, defendant's Motion In Limine Regarding Building Department (Dkt. #49)
is granted in large part to the extent set forth above.
II. DEFENDANT'S MOTION IN LIMINE REGARDING PLAINTIFF'S DAMAGES (Dkt. #50)
In this motion, defendant seeks to exclude medical records containing impermissible
expert opinions, as plaintiff failed to disclosure any expert witnesses or provide the
disclosures required by FED. R. CIV. P. 26(a), as well as to exclude any evidence of any injury
to his shoulder. (Dkt. #50, Brief at 2-5).4 In this case, the deadline for plaintiff's expert
reports was originally May 31, 2012 (Dkt. #29, ¶ 1) and then was extended to October 31,
2012. (Dkts. ##36-37). Plaintiff argues that his therapist, Suzanne Guerrucci, LCSW, is a
fact witness, who will not be asked for a professional opinion, but instead will describe and
summarize her diagnosis and treatment of plaintiff after January 2010, and that under
Connecticut statutory law, CONN. GEN. STAT. § 52-174(b), plaintiff may introduce medical
records about his shoulder injury, and the absence of a witness goes to the weight of these
medical records, and not their admissibility. (Dkt. #53, at 1-2, 4).
While plaintiff identified Guerrucci on January 26, 2012 as one of his healthcare
providers, he did not provide an expert report. (Dkt. #50, Brief at 2-3 & Exh. A). In 2010,
FED. R. CIV. P. 26(a)(2) was amended, so that detailed expert reports must be provided under
Rule 26(a)(2)(B) for expert witnesses "retained or specially employed to provide expert
testimony in the case" as opposed to more generalized reports under Rule 26(a)(2)(C) for
expert witnesses not so retained or specially employed. As the 2010 Advisory Notes explain,
"[f]requent examples" of individuals who are considered both fact and expert witnesses
exempted under Rule 26(a)(2)(C) "include physicians or other health care professionals."5
The 2010 amendments were discussed extensively by U.S. Magistrate Judge Randolph F.
Defendant also sought to exclude evidence regarding punitive damages, lost rents, and
inability to train a service dog. (Id. at 2, 5-6). In that as plaintiff failed to address these arguments
in his brief in opposition (see Dkt. #53; Dkt. #56, at 3, 5-6), defendant's motion is granted as to
these three items.
In 2007, now retired U.S. District Judge Alan H. Nevas described a treating physician as "a
sort of 'hybrid' expert." Badr v. Liberty Mut. Group, Inc., No. 3:06 CV 1208 (AHN), 2007 WL
2904210, at *4 (D. Conn. Sept. 28, 2007).
Treece last month in Bartnick v. CSX Transp., Inc., No. 1:11 CV 1120 (GLS/RFT), 2013 WL
1113991, at *2 (N.D.N.Y. Mar. 18, 2013), who observed that "[n]otwithstanding the 2010
Amendments to Rule 26(a)(2) creating the less detailed report, there is no specific reference
nor guidance as to how the various opinions from a treating physician should be captured."
Not surprisingly, when a more generalized report has been provided, then the treating
physician's testimony must be limited: "For treating physicians, opinions can be readily
gleaned from the medical reports that generally encompass and expose the course of
treatment and, thus, an abbreviated report makes sense. Generally speaking the parameters
of that testimony are limited to the care and treatment of the patient." Id. In contrast,
when the treating physician is to testify about a more technical issue, then the more
comprehensive expert report under Rule 26(a)(2)(B) is required: "[W]here the doctor is
rendering an opinion based upon a reasonable degree of medical certainty, it would seem
that the abbreviated report falls short of adequate disclosure." Id. It has long been the rule
within the Second Circuit, prior to the 2010 amendment, that "treating physicians may testify
as to opinions formed during their treatment, including causation, severity, disability,
permanency and future impairments, without the obligation to submit an expert report."
Williams v. Regus Mgmt. Group, LLC, No. 10 Civ. 8987 (JMF), 2012 WL 1711378, at *3
(S.D.N.Y. May 11, 2012)(emphasis & multiple citations omitted).6
In a case decided last summer, Eslin v. Housing Auth. of Mansfield, No. 3:11 CV 134
(JCH), 2012 WL 3090976, at *5 (D. Conn. July 13, 2012), the defendants asked the court to
preclude the testimony of the plaintiff's "treating clinician" when plaintiff had failed to provide
When causation is a critical issue in the litigation, some courts require a treating physician
to be treated as a retained expert witness if he or she is to opine about that issue. See, e.g.,
Davids v. Novartis Pham. Corp., 857 F. Supp. 2d 267, 280-81 (E.D.N.Y. 2012); Ordon v Karpie, 223
F.R.D. 33, 36 (D. Conn. 2004)(Fitzsimmons, MJ). That is not the case here.
a Rule 26(a)(2)(B) expert report. U.S. District Judge Janet C. Hall denied the motion, in that
plaintiff had provided defendants a list of all treating medical personnel, including this
clinician, as well as more than 150 documents containing her treatment records, and this
clinician had been subjected to a three hour deposition, at which she had been questioned
extensively about her medical opinion as to diagnosis and causation. Id. Under these
circumstances, Judge Hall found that this was "not one of those 'rare situations' in which the
'harsh remedy' of preclusion [was] justified."
Id. (citations omitted). See also Dwyer v.
Guilford Bd. of Educ., No. 3:05 CV 1155 (AHN), 2007 WL 1232039, at *1-3 & n.2 (D. Conn.
Apr. 26, 2007)(Fitzsimmons, MJ)(in the absence of an expert report under Rule 26(a)(2)(B),
testimony of plaintiff's family and marriage therapist would be limited to his treatment of
As in Eslin, defendant has been aware of Guerrucci since late January 2012, but from
the record, and unlike Eslin, it is unclear whether defense counsel has been given a complete
copy of Guerrucci's treatment records, or whether Guerrucci has been deposed. If plaintiff
has not done so already, on or before April 22, 2013, plaintiff shall provide defense
counsel with the Rule 26(a)(2)(C) expert report for Guerrucci and copies of all treatment
notes. In that this is a trial to the Court, for which there is obviously more flexibility in
scheduling, if defense counsel wishes to postpone Guerrucci's testimony in order to conduct
a prompt deposition of the therapist, the Court is more than willing to accommodate that
request; Guerrucci's testimony would be taken at a future time, after her deposition has been
completed. In any event, whenever Guerrucci testifies, her testimony will be limited to her
diagnosis and treatment of plaintiff commencing in January 2010.
With respect to the medical records regarding plaintiff's shoulder injury, defendant
is quite correct that plaintiff cannot introduce these medical records without testimony from
a health care provider that he suffered this injury when he fell on January 8, 2010, that the
injury was caused by the fall, and that the injury caused any pain or limitations. See, e.g.,
Charlotte Walters Waterbury Hosp. v. Howmedica Osteonics Corp., No. 07 CV 1124 (JCH),
2009 WL 1929077, at *1-2 (D. Conn. July 2, 2009)(Fitzsimmons, MJ); Gallagher v. Crete
Carrier Corp., No. 07 CV 332 (HBF), 2009 WL 2925441, at *10-11 (D. Conn. Sept. 10,
2009)(medical records not admitted under similar circumstances).
Accordingly, defendant's Motion In Limine Regarding Plaintiff's Damages (Dkt. #50)
is granted in large part to the extent set forth above.
Dated at New Haven, this 18th day of April, 2013.
/s/ Joan G. Margolis, USMJ__
Joan Glazer Margolis
United States Magistrate Judge
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