Seridge v. Bay State LLC et al

Filing 36

ORDER granting in part and denying in part 19 Motion in Limine; granting in part and denying in part 20 Motion in Limine. This Minute Order will summarize the rulings made on the record at conferences held with counsel 1/9/12 and 1/11/12. See attached order. Ordered by Magistrate Judge Marilyn D. Go on 1/12/2012. (Albertsen, Joanne)

United States District Court
Eastern District of New York
MINUTE ORDER
Seridge v. Bay State LLC, Statue Cruises LLC
2010 CV 499
This Minute Order will summarize the rulings made on the record
at conferences held with counsel 1/9/12 and 1/11/12 and resolves
plaintiff's Motion in Limine [19] and defendants' Motion in Limine
[20].
1.

Plaintiff's motion in limine is denied in large part as follows:
a)

Drug Test Results.

Plaintiff seeks to preclude use of evidence concerning
plaintiff's 30 day suspension during his prior employment for the New
York City Department of Transportation (Staten Island Ferry)
resulting from a positive drug test in 2007.

Notwithstanding the

potential prejudice to plaintiff, such evidence is admissible on
cross-examination of plaintiff as it pertains to his truthfulness and
credibility in light of the answers he gave during his deposition
regarding cessation of employment there.
The suspension and prior drug test results are also relevant to
plaintiff's claim of lost wages.

Courts have acknowledged that

after-acquired evidence of conduct bearing on employment
determinations may be relevant to a plaintiff's earning capacity and
damages.

See, e.g., McKennon v. Nashville Banner Pub. Co., 513 U.S.

352 (1995) (after-acquired evidence of employment discrimination
relevant to calculate backpay from termination to time defendant
received the evidence).

Regardless of whether the drug test results

were verified, as argued by plaintiff, since prior employers are
required under applicable regulations to maintain records of drug
test results, future employers can still find out about them.
49 C.F.R. §§ 40.25 et seq., 40.333; see also U.S. Dep't of Transp.,
Off. of Drug & Alcohol Policy & Compliance, Employer Record Keeping
Requirements for Drug & Alcohol Testing Information, 1, 5,
available at http://www.dot.gov/odapc/Docs/testingpubs/ Recordkeeping%20Requirements.pdf.

Thus, plaintiff will be permitted to examine any witness who
testifies about plaintiff's earning capacity about the return-to-duty
requirements of applicable regulations and whether knowledge of the
drug test results and suspension might affect the witness's opinions
regarding plaintiff's continued employability in the same or any
other maritime position.
Defendants also seek to present evidence through cross
examination of plaintiff and other evidence of plaintiff's alleged
storage of urine to substitute for his own in random drug tests.
Subject to submission of an affidavit which the Court finds to
provide a sufficient basis for this line of questioning, defendants
may cross-examine plaintiff on this occurrence.

However, because

such evidence is highly prejudicial to plaintiff, if defendants seek
to admit any extrinsic evidence of this incident, this Court will
conduct a voir dire on such evidence outside the hearing of the jury.
b) Neck Injury and Workers' Compensation Claim.
Evidence concerning plaintiff's 2001 neck injury is admissible,
as well as the extent of wages lost from this injury. However,
evidence regarding the related workers' compensation claim is not
admissible.
c)

Reports of Dr. Mills and Dr. Marmino

Expert reports of an adversary may be admissible as business
records, and they are deemed trustworthy because they may be expected
to be adverse to movant's interest.

Yates v. Bair Transp., Inc., 249

F.Supp. 681, 689-91 (2d Cir. 1965).
Dr. Edward Mills, defendants' testifying expert, examined
plaintiff for the purpose of a workers' compensation claim.

His

report is admissible but plaintiff, as agreed, shall do so on crossexamination.
Plaintiff claims that defendants also employed Dr. Joseph
Marmino to examine plaintiff for purposes of determining payment of
maintenance and cure.

The report of Dr. Joseph Marmino may be

admissible after plaintiff has laid the foundation for introducing
the report.

Plaintiff is given leave to amend the Joint Pre-Trial
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Order to add exhibits for this purpose, in the absence of defendants'
consent.

This Court notes that although an expert may rely on

hearsay in forming an opinion where such material is "reasonably
relied upon by experts in the field," an expert "may not act as a
mere conduit for the hearsay of another."

Wantanabe Realty Corp. v.

City of New York, No. 01 Civ. 10137 (LAK), 2004 WL 188088 (S.D.N.Y.
Feb. 2, 2004) (internal quotations omitted).

Plaintiff's hearsay

statements may be redacted.
2.

Defendants' motion in limine is denied in large part as follows:
Plaintiff agrees that experts cannot opine directly as to

negligence but can testify as to industry standards, defendants' own
safety standards, practices of good seamanship, the safety of
plaintiff's workplace and whether the ship was properly equipped for
this kind of task.

This Court agrees.

Thus, the specific factual findings, citations of regulations
and opinions as to industry practice in Captain Ahlstrom's report are
admissible and within the scope of his expertise.

However, he must

avoid making statements as to ultimate issues in this case, including
opinions as to defendant's negligence, whether plaintiff is
responsible for his injuries and whether conditions on the vessel
were unreasonably dangerous.
The report of Dr. Cushing and Mr. Streb is admissible and within
the scope of their expertise.

This Court finds that defendants will

suffer no prejudice if Dr. Cushing discusses the ASTM standard
mentioned in his supplemental report.

If he does so, he must cite

the version of that was in effect at the time of the incident.
However, matters relating to fall protection and pertinent
regulations are inadmissible as irrelevant.
SO ORDERED.
Dated:

Brooklyn, New York
January 12, 2012
/s/___________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE
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