LY et al v. LESENSKYJ

Filing 95

REVISED MEMORANDUM OPINION & ORDER revising docket entries 93 and 94 . Signed by Judge Zahid N. Quraishi on 3/13/2023. (jal, )

Case 3:17-cv-02203-ZNQ-TJB Document 95 Filed 03/16/23 Page 1 of 16 PageID: 1843

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES LY and NGA LAM,
Plaintiffs,
v.

Civil Action No. 17-2203 (ZNQ) (TJB)
REVISED MEMORANDUM OPINION

GEORGE LESENSKYJ, et al.,
Defendants.
QURAISHI, District Judge
This matter comes before the Court upon Third-Party Defendant Bay Dreamer LLC’s
(“Bay Dreamer”) Motion for Summary Judgment (ECF No. 78) and Defendant George
Lesenskyj’s (“Lesenskyj”) Motion for Summary Judgment and to Exclude Irrelevant and
Prejudicial Evidence (ECF No. 85). 1 Plaintiffs James Ly (“Ly”) and Nga Lam (collectively
“Plaintiffs”) opposed both motions (ECF Nos. 79, 90), and Bay Dreamer replied (ECF Nos. 83).
After careful consideration of the Parties’ submissions, the Court decides the Parties’ Motions
without oral argument pursuant to Local Civil Rule 78.1. For the reasons outlined below, the Court
denies both motions.

1

Lesenskyj impleaded Bay Dreamer through Federal Rule of Civil Procedure 14. (ECF No. 6.)

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I.

BACKGROUND
The Court recites only the uncontested facts necessary to contextualize the present motions.

On July 10, 2016, Ly rented a fifteen-foot skiff from Bay Dreamer. 2 (Bay Dreamer’s Statement of
Undisputed Material Facts (“SUMF”) ¶ 2, ECF No. 78; Pls.’ Responsive Statement of Material
Facts (“RSMF”) to Bay Dreamer ¶ 2, ECF No. 79-2; Lesenskyj’s SUMF ¶ 3, ECF No. 89; Pls.’
RSMF to Lesenskyj ¶ 3, ECF No. 90-1.) Ly rented the skiff for purposes of fishing the Oyster
Creek Channel with Phillip Kang (“Kang”) and Dr. Joshua Liao (“Liao”). (See Bay Dreamer’s
SUMF ¶¶ 4-6; Pls.’ RSMF to Bay Dreamer ¶¶ 4-6.) Ly and Kang were not related and were
“fishing buddies.” (Lesenskyj’s SUMF ¶ 2; Pls.’ RSMF to Lesenskyj ¶ 2.)
On July 10, 2016, Lesenskyj was operating a “twin outboard 36’ Concept center console
vessel with . . . 600 horsepower” in the Oyster Creek Channel. (See Bay Dreamer’s SUMF ¶ 7;
Pls.’ RSMF to Bay Dreamer ¶ 7.) At approximately 2:23 p.m., Lesenskyj’s vessel collided with
Ly’s rented skiff. (Bay Dreamer’s SUMF ¶ 1; Pls.’ RSMF to Bay Dreamer ¶ 1.) Lesenskyj’s vessel
struck the skiff at the port stern, where Kang was seated. (Bay Dreamer’s SUMF ¶¶ 4, 11; Pls.’
RSMF to Bay Dreamer ¶¶ 4, 11.) Tragically, Kang died as a result of the collision. (Bay Dreamer’s
Moving Br. 30, ECF No. 78.) At no point prior to the collision was any sound device used by either
Lesenskyj or anyone on Ly’s rented skiff to avoid a collision. (See Bay Dreamers’ SUMF ¶¶ 18,
28; Pls.’ RSMF to Bay Dreamer ¶¶ 18, 28.)
All other relevant or material facts in this matter are contested and will be recited where
applicable in the Court’s analysis below.

2

Bay Dreamer was doing business as Bobbie’s Boats and Motor Rental when it rented the skiff to
Plaintiff. (Bay Dreamer’s SUMF ¶ 2.)
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II.

LEGAL STANDARD
The Federal Rules of Civil Procedure provide that summary judgment should be granted

“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir.
2000). In deciding a motion for summary judgment, a court must construe all facts and inferences
in the light most favorable to the nonmoving party. See Boyle v. County. of Allegheny, 139 F.3d
386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine dispute
of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “[W]ith
respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the
moving party may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.
Once the moving party has met that threshold burden, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present
actual evidence that creates a genuine dispute as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which nonmoving party must
rely to support its assertion that genuine disputes of material fact exist). “[U]nsupported allegations
in . . . pleadings are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial, . . . there can be ‘no genuine [dispute] of material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving party’s case

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necessarily renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5
(3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).
In deciding a motion for summary judgment, the Court’s role is not to evaluate the evidence
and decide the truth of the matter but to determine whether there is a genuine dispute for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact finder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). The summary judgment
standard, however, does not operate in a vacuum. “[I]n ruling on a motion for summary judgment,
the judge must view the evidence presented through the prism of the substantive evidentiary
burden.” Anderson, 477 U.S. at 254.
III.

DISCUSSION
For the reasons outlined below, the Court denies both Bay Dreamer and Lesenskyj’s

Motions for Summary Judgment.
A.

Bay Dreamer’s Motion for Summary Judgment

“An action arising out of a collision between two pleasure boats on navigable waters clearly
falls within the admiralty jurisdiction of the district courts.” Foremost Ins. Co. v. Pansy F.
Richardson, 457 U.S. 668, 672 (1982). In this case, Ly’s rented skiff and Lesenskyj’s boat were
both pleasure boats that collided on navigable waters. (Pls.’ RSMF to Bay Dreamer ¶¶ 2, 7.) As
such, this case falls squarely within this Court’s federal admiralty jurisdiction. See Calhoun v.
Yamaha Motor Corp., 40 F.3d 622, 627 (3d Cir. 1994).
“Whether a state law may provide a rule of decision in an admiralty case depends on
whether the state rule ‘conflicts’ with the substantive principles of federal admiralty law.” Id. As
there is no well-defined federal maritime standard for negligence, “no conflict between New
Jersey’s common law of negligence and [any] federal maritime law of negligence” exists, and the
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Court applies New Jersey’s negligence standard to this action. DiNenno v. Lucky Fin Water Sports,
LLC, 837 F. Supp. 2d 419, 427 (D.N.J. 2011); see also Calhoun, 40 F.3d at 627 (finding “[i]n the
field of . . . maritime torts, the National Government has left much regulatory power in the States”
and “state law can, and often does, provide the relevant rule of decision in admiralty cases”
(citation omitted)). In New Jersey, “[i]n order to sustain a common law cause of action in
negligence, a plaintiff must prove four core elements: (1) a duty of care, (2) a breach of that duty,
(3) proximate cause, and (4) actual damages.” DiNenno, 837 F. Supp. 2d at 427 (citation omitted).
Bay Dreamer moves for Summary Judgment on the basis that Plaintiffs cannot establish
their negligence claims against it. (See generally Bay Dreamer’s Moving Br.) In relevant part for
the Court’s consideration, Bay Dreamer argues that any alleged failure by it to provide a whistle
onboard the fifteen-foot skiff it rented to Ly “cannot be a proximate cause of the collision” and,
therefore, Plaintiffs cannot sustain their negligence claim against it. (See id. at 4-5.)
1.

The Pennsylvania Rule

The Court’s analysis in resolving this motion centers on the applicability of the admiralty
rule known as the “Pennsylvania Rule.” The Pennsylvania, 86 U.S. 125, 136 (1873); Complaint of
Nautilus Motor Tanker Co., 85 F.3d 105, 113-14 (3d Cir. 1996) (setting forth the application of
the Pennsylvania Rule in modern-day Third Circuit jurisprudence). The Pennsylvania Rule
establishes that a plaintiff is entitled to a presumption of cause in a negligence action where “a
ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions.”
Complaint of Nautilus, 85 F.3d at 113. The Pennsylvania Rule, if established, shifts the burden to
a ship to show “not merely that [her] fault might not have been one of the causes, or that it probably
was not, but that it could not have been.” Id. Here, the “ship” is the rental skiff Bay Dreamer
provided Ly, and the question is whether its alleged violation of 33 C.F.R. § 83, et seq. (the “Inland

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Rules”) allows Plaintiffs to gain the Pennsylvania Rule’s presumption of cause against Bay
Dreamer.
The test as to whether to apply the Pennsylvania Rule’s presumption of cause is threefold:
First, a plaintiff must prove, by a preponderance of the evidence, that a violation of a statute or
regulation that imposes a mandatory duty occurred. Complaint of Nautilus, 85 F.3d at 114. Second,
the statute or regulation violated must involve marine safety or navigation. Id. And third, the injury
suffered must be of a nature that the statute or regulation was intended to prevent. Id. Here,
Plaintiffs direct this Court’s attention to Inland Rule 33 as the Rule Bay Dreamer’s rental skiff
allegedly violated it. 33 C.F.R. § 83.33. Inland Rule 33 provides a mandatory duty, stating “[a]
vessel of less than 12 meters . . . shall be provided with some . . . means of making an efficient
sound signal.” Id.
Bay Dreamer asserts its boat did not violate Inland Rule 33 where it provided a whistle that
would satisfy the regulation. (See Bay Dreamer’s SUMF ¶¶ 25-27 (citing testimony that each Bay
Dreamer rental boat “has a whistle,” that Bay Dreamer employees “never take them off,” and that
an employee checks for a whistle before each boat goes out).) Plaintiffs dispute that Bay Dreamer’s
rental skiff was equipped with a whistle, and they provide evidence contrary to Bay Dreamer’s
assertion. (See Pls.’ RSMF to Bay Dreamer ¶¶ 25-32 (citing Ly’s testimony that there was no
whistle on the boat and providing evidence of two photographs: 1) a photograph taken before the
collision that shows a lanyard, of which the whistle was typically affixed, but not showing whether
or not there was in fact a whistle affixed and 2) a photograph of the full lanyard taken after the
collision and showing no whistle).) Ultimately, based on the conflicting evidence provided by the
Parties, the question of whether, by a preponderance of the evidence, Bay Dreamer provided Ly’s

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rented skiff with an “efficient sound signal” such as a whistle as required by Inland Rule 33 is a
dispute of material fact not ripe for adjudication at this stage.
As to elements two and three of the Pennsylvania Rule, however, the Court finds each
element is met as a matter of law. The second element, that the statute or regulation must involve
marine safety or navigation, is clearly met where the Inland Rules state a statutory intent to avoid
maritime collisions. 33 C.F.R. § 83.02 (“In construing and complying with these Rules, due regard
shall be had to all dangers of navigation and collision[.]”). The third element requires that “the
injury suffered must be of a nature that the statute or regulation was intended to prevent.”
Complaint of Nautilus, 85 F.3d at 113. This element is again clearly met where a nautical collision
occurred between Ly’s rented skiff and Lesenskyj’s boat, the very thing the Inland Rules set out
to regulate and avoid, and where Inland Rule 33 desires watercraft to have a sound signal to
effectively navigate around one another and presumably avoid such a collision. See 33 C.F.R.
§§ 83.02, 83.33.
For these reasons, the Court finds that the Pennsylvania Rule is met as to prongs two and
three but leaves the question of whether or not the whistle or any other sound device was provided
to Ly’s rented skiff for determination at trial. If such device is found by a preponderance of the
evidence not to have been provided, a presumption of causation will be granted against Bay
Dreamer unless Bay Dreamer can successfully rebut such a presumption.
2.

Rebutting the Pennsylvania Rule to Achieve Summary Judgment

Bay Dreamer seeks, at summary judgment, to rebut the presumption the Pennsylvania Rule
may grant Plaintiffs at trial. A defendant can rebut the Pennsylvania Rule’s presumption of cause
by providing “clear and convincing [evidence] showing that the violation could not have been a
proximate cause of the collision . . . or by demonstrating that the accident would have occurred

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despite the statutory violation.” Complaint of Nautilus, 85 F.3d at 114 (citation omitted). Bay
Dreamer contends that it is entitled to summary judgment because it showed by clear and
convincing evidence that the alleged violation, the lack of a whistle on Ly’s rented skiff, could not
have been a proximate cause of the collision. (Bay Dreamer’s Moving Br. at 17, 28.) Bay Dreamer
further claims it demonstrated by clear and convincing evidence that the accident would have
occurred notwithstanding the presence of a whistle. (See id.) The Court finds that Bay Dreamer
cannot establish either assertion by clear and convincing evidence.
First, Bay Dreamer contends that the absence of a whistle was not a proximate cause of the
collision because there was insufficient time to obtain and effectively utilize a whistle before the
collision. (Id. at 28.) Plaintiffs, in response, provide testimony by Ly stating that he was aware of
a potential collision up to thirty seconds before impact, and that he or Kang would have had time
to blow a whistle if one was supplied. (Ex. E to Pls.’ Opp’n Br., ECF No. 79-7.) As such, a genuine
dispute of material fact remains as to whether Ly or Kang had time to use a whistle to divert
Lesenskyj’s boat, and Bay Dreamer has not provided clear and convincing evidence to the
contrary.
Second, Bay Dreamer argues even if there was enough time to blow a whistle, the absence
of a whistle was not a proximate cause of the collision because the sound of a whistle would not
have altered the course of Lesenskyj’s vessel. (Bay Dreamer’s Moving Br. at 31.) Plaintiffs provide
evidence that Lesenskyj himself testified to the contrary. (Ex. F. to Pls.’ Opp’n Br., ECF No. 79-8
(providing testimony by Lesenskyj at his deposition where he stated that if he heard a whistle
blowing in front of him, even if he could not see a boat, he would have brought his boat to a stop).)
As such, a genuine dispute of material fact remains as to whether or not the blowing of a whistle

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would have prevented the collision, and again, Bay Dreamer did not provide clear and convincing
evidence to the contrary.
3.

Additional Arguments

The Court also briefly notes Bay Dreamer’s argument suggesting that the Inland Rules are
“clearly beyond the ken of the average person and expert testimony is required to analyze” the
Inland Rules. (Bay Dreamer’s Reply 2, ECF No. 83.) Bay Dreamer provides no case law to support
this assertion, and the Court disagrees that claims under the Inland Rules are so complex that expert
testimony is required for a juror to understand the issues in this case. See Natale v. Camden Cnty.
Corr. Facility, 318 F.3d 575, 579 (3d Cir. 2003) (emphasizing experts are not required where “the
jurors’ common knowledge as a lay person is sufficient to enable them, using ordinary
understanding and experience, to determine a defendant’s negligence without the benefit of
specialized knowledge of experts” (citation omitted)).
In sum, genuine disputes of material fact exist as to Plaintiffs’ negligence claims against
Bay Dreamer, and therefore the Court denies Bay Dreamer’s Motion for Summary Judgment.
B.

Lesenskyj’s Motion for Summary Judgment and Motion in Limine

Lesenskyj moves for Summary Judgment as to Plaintiffs’ claim for Negligent Infliction of
Emotional Distress (“NIED”) and Bay Dreamer writes separately to support the Motion. (ECF
Nos. 85, 87.) Lesenskyj also moves for the exclusion of certain evidence at trial. (See ECF No.
85.) The Parties dispute whether federal maritime law or state law applies when considering a
NIED claim that arises from the collision of two boats in a federally regulated inland water
channel.

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1. Governing Law for Maritime NIED Claims
Case law by the Third Circuit and the United States Supreme Court guide this Court to its
conclusion that federal law governs Plaintiffs’ NIED claim. First, as discussed earlier in this
Opinion, the Supreme Court has established that “an action arising out of a collision between two
pleasure boats on navigable waters clearly falls within the admiralty jurisdiction of the district
courts.” Foremost, 457 U.S. at 672. As such, this case falls squarely within this Court’s federal
admiralty jurisdiction. While the intersection between federal admiralty law 3 and state law can
occasionally require an in-depth preemption analysis, the Third Circuit has made it clear that where
admiralty jurisdiction applies, state laws cede to federal maritime laws whenever the two sets of
laws conflict. Calhoun, 40 F.3d at 627. While analyzing the presence of such a conflict can at
times be difficult, this is not such an instance. Id. at 628.

While “admiralty” and “maritime” are distinct concepts, namely “admiralty” law is a subset of
“maritime” law, courts across the country use the terms interchangeably. Golden Horn Shipping
Co. v. Volans Shipping Co., Civ. No. 14-2168, 2016 WL 1574128, at *1 n.1 (S.D.N.Y. Apr. 15,
2016) (citing Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 n.2 (7th Cir. 2001);
see also Espinoza v. Princess Cruise Lines, Ltd., 581 F. Supp. 3d 1201, 1210 n.3 (“The Ninth
Circuit has advised it use[s] the terms ‘admiralty’ and ‘maritime’ interchangeably, as the relevant
caselaw often uses both words without apparent distinction.” (quoting Gruver v. Lesman Fisheries,
Inc., 489 F.3d 978, 982 n.5 (9th Cir. 2007)) (alterations in original)). For purposes of this Opinion,
to keep with the conventions used by courts similarly sitting in admiralty jurisdiction, the Court
uses “admiralty” and “maritime” interchangeably.
3

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The Supreme Court provided for a federally recognized NIED standard in Consolidated
Rail Corp. v. Gottshall, 512 U.S. 532, 558 (1994) (setting forth a “zone of danger” test for NIED
claims brought under federal law). In Consolidated Rail, the Supreme Court found that railroad
workers who asserted claims under the Federal Employer’s Liability Act (“FELA”) could assert a
federally recognized claim for NIED. Id. at 549-50. While Consolidated Rail was decided in the
context of FELA, this Court follows the First, Ninth and Eleventh Circuits in finding that
Consolidated Rail implicitly recognized a cause of action for NIED under federal maritime law.
Stacy v. Rederiet Otto Danielsen, A.S., 609 F.3d 1033, 1035 (9th Cir. 2010) (finding that
Consolidated Rail established “[t]he federal standard for [NIED]” and that the test set forth in
Consolidated Rail to assess NIED is “applicable in the [admiralty] jurisdiction of the United
States”); Chaparro v. Carnival Corp., 693 F.3d 1333, 1338 (11th Cir. 2012) (affirming that the
NIED rule set forth in Consolidated Rail is applicable under federal maritime law); Sawyer Bros.,
Inc. v. Island Transporter, LLC, 887 F.3d 23, 38 (1st Cir. 2018) (stating a plaintiff “may recover
for NIED under the general maritime law”).
As an established federal common law standard for NIED is recognized in the maritime
context, the Court applies such standard in this matter. See Calhoun, 40 F.3d at 637 (finding where
a federal maritime rule exists at either statutory or federal common law, state law must cede to
federal admiralty law). 4

4

Importantly, even if a federal NIED standard is not applicable in the maritime context, Plaintiffs
could still advance their NIED claim under New Jersey state law and the Court would reach the
same conclusion it reaches when analyzing the NIED claim under Consolidated Rail. See generally
Falzone v. Busch, 214 A.2d 12 (N.J. 1965); see also Portree v. Jaffee, 417 A.2d 521, 524 (N.J.
1980) (barring certain NIED claims in New Jersey but recognizing that Falzone set forth a “zone
of risk” test similar to the Consolidated Rail test to determine NIED claims, and that such test was
not overruled by Portree).
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2. “Zone of Danger” Test and Application
The “zone of danger” test employed by the Supreme Court “limits recovery for emotional
injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent
conduct, or who are placed in immediate risk of physical harm by that conduct.” Consolidated
Rail, 512 U.S. at 548. In short, “those within the zone of danger of physical impact can recover for
fright, and those outside of it cannot.” Id. (internal quotation marks and citation omitted).
Lesenskyj argues that Plaintiffs provide no evidence that Ly himself so feared the impact
of collision that he experienced post-traumatic stress disorder (“PTSD”) as a result of his own fear
of bodily harm when Lesenskyj’s boat collided with Ly’s skiff. (See Lesenskyj’s Moving Br. 3-4,
ECF No. 86.) Instead, Lesenskyj maintains, Plaintiffs only provide evidence that witnessing Ly’s
friend die caused Ly’s PTSD, which is not actionable under the applicable law. (Id. at 3, 7-9.)
Alternatively, Lesenskyj maintains and provides evidence that Ly’s PTSD was a preexisting
condition, and thus, was not caused by the boat collision. (Id. (citing Ex. D. to Lesenskyj’s Mot.
Summary J., ECF No. ECF No. 88).)
Plaintiffs, however, provide evidence that Ly experienced PTSD after the crash and
provide evidence that it was a result of the collision with Lesenskyj. (Ex. 8 to Pls.’ Opp’n Br., ECF
No. 90-10.) Plaintiffs point to expert evidence that can be construed as attributing Ly’s PTSD to
the apprehension of immediate physical harm to his person at the time Lesenskyj’s boat collided
with Ly’s skiff. (See generally id.) As such, Plaintiffs provide evidence that they meet “zone of
danger” test requirements for establishing NIED at trial. For these reasons, a genuine dispute of
material fact remains as to whether Ly’s PTSD was the result of a fear that he would be harmed or
killed in the collision, or alternatively, whether his PTSD was the result of watching his friend die

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or a preexisting condition that predated the collision. Accordingly, Lesenskyj’s Motion for
Summary Judgment as to Plaintiffs’ NIED claim is denied.
3. Remaining Arguments and Motion in Limine
The Court turns briefly to Lesenskyj’s other arguments raised in his motion regarding
damages and a motion in limine. Lesenskyj first argues that Plaintiffs did not provide any evidence
that Ly’s PTSD from the boat collision is a chronic condition, and therefore, Plaintiffs cannot
collect future damages. (Lesenskyj’s Mot. Summary J. at 9-10.) The Court concludes, however,
that Lesenskyj’s future damages argument merely attempts to seize finality from expert testimony
that leaves open the question of whether Ly’s PTSD is permanent. (See, e.g. id. (arguing that there
is no evidence that Ly’s alleged PTSD is permanent although the evidence on the record as to Ly’s
PTSD-permanence lacks finality and is a matter of interpreting the expert opinions of Dr.
Rosenkrantz, Dr. Rosenberg, and Dr. Lee); see generally Ex. C-1 to Pls.’ Opp’n Br., ECF No. 902; Ex. 8 to Pls.’ Opp’n Br.; Ex. 12 to Pls.’ Opp’n Br., ECF No. 90-14.) Lesenskyj next argues that
Plaintiffs provide no evidence that Ly could not work following the collision, challenging
Plaintiffs’ lost wages claim. (Lesenskyj’s Mot. Summary J. at 10.) In so moving, Lesenskyj cites
only state law contingent upon New Jersey State Rules of Evidence where federal case law
contingent on Federal Rules of Evidence should be applied, rendering the Court unable to decide
this issue for want of guidance as to Lesenskyj’s arguments under federal law. (Id. at 10-11 (citing
New Jersey law and evidentiary rulings despite this Court sitting in federal admiralty jurisdiction;
D’Orio v. West Jersey Health Sys., 797 F. Supp. 371, 376 (D.N.J. 1992) (“Generally the Federal
Rules of Evidence apply to all cases hearing in a federal court, even where the application of the
forum state’s evidentiary rules would yield a different result on a particular item of proffered

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evidence (citing 9 Wright & Miller, Federal Practice and Procedure § 2405 (1971 and Supp.
1992))). As such, the Court denies summary judgment as to Plaintiffs’ lost wages claim.
As to Lesenskyj’s motion in limine to exclude certain evidence related to Kang’s death,
the Court agrees that some consideration may need to be given as to the admissibility of Kang’s
graphic injuries. (Lesenskyj’s Mot. Summary J. at 11-13.) The Court, however, reserves judgment
on this issue because it should be separately briefed after both Parties consider the Court’s findings
in this Opinion. Particularly, the Court finds today that the presence of the whistle is a material
factual dispute in this case, and therefore, it may be necessary for some graphic material to be
admitted if it is ultimately necessary for the Court to properly consider if there was a whistle on
the boat. The Court, however, reserves a more precise judgment for a formal and separate motion
in limine filed prior to trial.
IV.

CONCLUSION
For the reasons outlined above, the Court denies Bay Dreamer and Lesenskyj’s Motions

for Summary Judgment.

s/Zahid N. Quraishi
ZAHID N. QURAISHI
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES LY and NGA LAM,
Plaintiffs,
v.

Civil Action No. 17-2203 (ZNQ) (TJB)
ORDER

GEORGE LESENSKYJ, et al.,
Defendants.

This matter comes before the Court upon Third-Party Defendant Bay Dreamer LLC’s
(“Bay Dreamer”) Motion for Summary Judgment (ECF No. 78) and Defendant George
Lesenskyj’s (“Lesenskyj”) Motion for Summary Judgment and to Exclude Irrelevant and
Prejudicial Evidence (ECF No. 85). Plaintiffs James Ly (“Ly”) and Nga Lam (collectively
“Plaintiffs”) opposed both motions (ECF Nos. 79, 90), and Bay Dreamer replied (ECF Nos. 83).
After consideration of the Parties’ submissions, the Court decides the Parties’ Motions without
oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth in the accompanying
Memorandum Opinion and other good cause shown,
IT IS, on this 13th day of March 2023, ORDERED as follows:
1.

Bay Dreamer’s Motion for Summary Judgment (ECF No. 78) is DENIED.

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2.

To the extent Lesenskyj moves for Summary Judgment as to Plaintiffs’ NIED
claims (ECF No. 85), such motion is DENIED. To the extent Lesenskyj brings
motions in limine, such motions are DENIED WITHOUT PREJUDICE to be
refiled subsequent to the Court’s decision today.

s/ Zahid N. Quraishi
ZAHID N. QURAISHI
UNITED STATES DISTRICT JUDGE

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