Bey v. Hill

Filing 90

RULING denying 62 Motion in Limine; granting in part and denying in part 66 Motion in Limine and 86 Motion to Redact Defendant's Exhibit 118; granting in part, reserving in part and finding as MOOT in part 74 Motion in Limine. Signed by Judge Holly B. Fitzsimmons on 10/4/17. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALLAH S. BEY
v.
SUZANNE E. HILL

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CIV. NO. 3:14CV01930(HBF)

RULING ON MOTIONS IN LIMINE
Pending are the parties’ Motions in Limine. [Doc. #62, 66,
74, 86]. Oral argument was held on September 6, 2017.
Standard of Review
“The

purpose of an in limine motion is ‘to aid the trial

process by enabling the Court to rule in advance of trial on the
admissibility and relevance of certain forecasted evidence, as
to issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial.’” Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (quoting Banque
Hypothecaire Du Canton De Genève v. Union Mines, 652 F. Supp.
1400, 1401 (D. Md. 1987)); see Luce v. United States, 469 U.S.
38, 40 n.2 (1984) (“We use the term [“in limine”] in a broad
sense to refer to any motion, whether made before or during
trial, to exclude anticipated prejudicial evidence before the
evidence is actually offered.”). “A district court’s inherent
authority to manage the course of its trials encompasses the

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right to rule on motions in limine.” Capital Mgmt., L.P. v.
Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y. 2008).
“Evidence should be excluded on a motion in limine only
when the evidence is clearly inadmissible on all potential
grounds.” Levinson v. Westport Nat’l Bank, No. 3:09-CV1955(VLB), 2013 WL 3280013, at *3 (D. Conn. June 27, 2013)
(quoting Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp.
2d 461, 470 (S.D.N.Y. 2005)). Courts considering a motion in
limine may reserve judgment until trial, so that the motion is
placed in the appropriate factual context. See Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa. v. L.E. Meyers Co. Grp., 937 F.
Supp. 276, 287 (S.D.N.Y. 1996).
Plaintiff’s Motion in Limine Regarding Dr. Gina Glass [Doc. #62]
Plaintiff seeks to preclude any and all expert testimony by
defendant’s expert, Gina Glass, M.D., due to untimely
disclosure. Specifically, Dr. Glass was disclosed on August 24,
2017, after discovery closed and only one day before the
parties’ Joint Pretrial Memorandum was due. Dr. Glass is
defendant’s primary care physician and had been disclosed to
testify. Plaintiff was aware, however, that “defendant had
instances of dizziness or light headedness prior to the accident
and at least two prior instances where she lost consciousness:
one that occurred during her childhood and one that occurred
just six months prior to the car accident. It is the plaintiff’s
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position that one of the manners in which the defendant was
negligent was her decision to continue driving after
experiencing prior instances of sudden loss of consciousness.”
[Doc. #62-1at 2; Compl. at ¶¶9 (g-j)]. Nevertheless, plaintiff
claims that he has been “severely prejudiced by defendant’s
untimely disclosure,” arguing he has been deprived of the
opportunity to depose Dr. Glass or to have the expert opinion
evaluated by he own expert. [Doc #62-1 at 4].
Defendant states she has provided all the medical records
so, although the disclosure was late, there is nothing new.
Moreover, any prejudice may be overcome as the parties planned
to depose Dr. Glass before the trial. Defendant intends to play
the video deposition at trial in lieu of live testimony.
On this record, plaintiff’s Motion in Limine [Doc. #62] is
DENIED.
Plaintiff’s Motion in Limine Regarding Opinions of Cause of
Accident Contained in Medical Records [Doc. #66]
Plaintiff next moves to exclude certain statements from
defendant’s medical records that reflect her medical condition
at the time of the accident, which defendant intends to offer as
exhibit 118. Plaintiff also filed, under seal, a copy of
exhibit 118, which is the medical record from St. Vincent
Medical Center dated December 29, 2012-January 9, 2013,
highlighting the entries he seeks to redact. [Doc. #86].

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Plaintiff argues that certain statements are inadmissible
hearsay, and are improper statements of medical opinion without
a disclosed expert to explain them. [Doc. #66-1 at 1]. To the
extent that the medical records contain statements, the
statements may be admissible under Federal Rule of Evidence
803(4). A hearsay statement “that is made for—and is reasonably
pertinent to—medical diagnosis or treatment; and describes
medical history; past or present symptoms or sensations; their
inception; or their general cause” is admissible under Rule
803(4)'s exception to the hearsay rule. Fed. R. Evid. 803(4).
The Advisory Committee Notes regarding the medical diagnosis
exception provide that statements of the patient's condition are
exempted from the hearsay rule because of the patient's strong
motivation to be truthful in order to obtain the appropriate
diagnosis and treatment. Fed. R. Evid. 803(4), Advisory Comm.
Notes, 1972 Proposed Rules; see White v. Illinois, 502 U.S. 346,
356 (1992) (“[A] statement made in the course of procuring
medical services, where the declarant knows that a false
statement may cause misdiagnosis or mistreatment, carries
special guarantees of credibility that a trier of fact may not
think replicated by courtroom testimony.”). The Notes further
explain that statements that go beyond causation, however, and
assign fault for a medical condition are not excepted. Id.

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The records in question are medical/hospital records and
contain defendant’s statements regarding her medical condition
made for medical treatment immediately following the accident.
Statements made by defendant in furtherance of obtaining a
medical diagnosis would be admissible. Similarly, statements
recording the observations of the emergency medical responders
regarding her medical condition would be admissible. However, to
the extent that defendant’s record includes a statement
regarding the cause of the accident, in other words, statements
made to defendant about what occurred while she was unconscious,
or to the emergency medical responders, would not be admissible.
See Def. Ex. 118 at 54, 59, 61, 68, 69, 71, 75 (in part), 79 (in
part).
Accordingly, plaintiff’s Motion in Limine Regarding
Opinions of Cause of Accident Contained in Medical Records [Doc.
#66] is GRANTED in part and DENIED in part. Plaintiff’s Motion
for Redactions to Defendant’s Exhibit 118 [Doc. #86] is GRANTED
in part and DENIED in part. Plaintiff is free to renew his
objection at trial based on the context of the evidence
presented.
Defendant’s Motion in Limine Regarding Expert Testimony of
Steven Putterman [Doc. #74]
Plaintiff retained an actuary, Steven Putterman, on October
21, 2016. He “is expected to testify that the present value of
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the plaintiff’s economic loss due to past and future lost wages
resulting from a car accident on December 29, 2012 and
subsequent periods of unpaid leave, is between $80,000 and
$85,000. [Doc. #85-1, Ex. 1].
Defendant concedes that plaintiff documented some lost
wages immediately following the accident, which are supported by
medical records. Defendant argues that Putterman’s opinion lacks
foundation and is based on speculation and should be excluded
because his opinion as to total economic loss for missed time is
based on “discussions with plaintiff’s counsel and vague records
from plaintiff’s employer.” [Doc. #74 at 1]. As indicated in
plaintiff’s expert disclosure, Putterman “bases his opinion upon
his review of the deposition transcript of Allah Bey, as well as
Mr. Bey’s wage records and his employment records, which have
previously been disclosed in this matter.” [Doc. #85-1].
Plaintiff’s wage and attendance records will be exhibits in this
case and Putterman will explain how he used the records to make
his calculation, and he will “explain his methods and
calculations at trial.” [Doc. #85 at 3]. Plaintiff alleges that
he will testify that he lost work due to pain caused by the
accident and contends he is not required to see a doctor
whenever pain precluded him from performing his job
responsibilities and required him to take time off from work.
This testimony may be cross-examined at trial. Plaintiff argues,
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and the Court agrees, that the jury may consider his testimony
when weighing the evidence to support an appropriate damages
award. Accordingly, defendant’s motion is denied on the current
record. The Court’s ruling, however, is “subject to change when
the case unfolds, particularly if the actual testimony differs
from what was [expected].” Luce 469 U.S. at 41.
Defendant further argues that Putterman failed to make a
deduction for fringe benefits “such as any impact on company
pension or social security” or income tax. Plaintiff states that
he will be taxed by the IRS on any jury award for lost income so
that, it is not proper for Putterman to make a reduction for
taxes which would effectively penalize plaintiff by taxing him
twice. Id. at 4. Neither party has offered case law. The parties
may revisit this issue at trial and/or offer jury instructions
that address this issue.
Finally, plaintiff states that he is not seeking
compensation for lost fringe benefits, “the fact that Mr.
Putterman did not calculate the reduction in Mr. Bey’s future
pension and the reduction in Mr. Bey’s future social security
distributions as damages to which the plaintiff is entitled, is
a windfall to the defendant in the form of a reduced damages
claim, not an overstatement of damages by the plaintiff.” Id. at
5 (emphasis in original). Accordingly, the Court finds that this
issue is moot.
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CONCLUSION
Plaintiff’s Motion in Limine Regarding Dr. Gina Glass [Doc.
#62] is DENIED.
Plaintiff’s Motion in Limine Regarding Opinions of Cause of
Accident Contained in Medical Records [Doc. #66] and Motion to
Redact Defendant’s Exhibit 118 [Doc. #86] are GRANTED in part
and DENIED in part. The parties will confer in an effort to
reach an agreement on the redaction of certain entries
consistent with this ruling.
Defendant’s Motion in Limine Regarding Expert Testimony of
Steven Putterman [Doc. #74] is DENIED in part, RESERVED in part,
and MOOT in part consistent with this ruling.
This is not a Recommended Ruling.

The parties consented to

proceed before a United States Magistrate Judge [doc. #30] on
November 1, 2016, with appeal to the Court of Appeals.

Fed. R.

Civ. P. 73(b)-(c).
SO ORDERED at Bridgeport, Connecticut this 4th day of
October 2017.
/s/ __
_____________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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