Reynolds v. American Airlines, Inc.
ORDER granting in part and denying in part 81 ; granting 82 ; granting 83 ; denying 84 ; denying 91 . As explained in the attached Opinion and Order, plaintiff's motion in limine is denied with respect to William Meyer, Joseph Pessa lano, Jessica Berkowitz, Jerome Harvey, and the deposition testimony of Robert DuBreuil. The parties are Ordered to confer regarding the exhibits to be used at trial to avoid cumulative exhibits. Defendant's motion in limine with respec t to Stanley Ikezi, M.D. is granted. Defendant's motion in limine with respect to Captain Douglas Moss is granted with respect to testimony regarding any defect in the door. The Court reserves decision on whether to allow the remainder of Captain Moss's testimony regarding recordkeeping requirements, but will preclude such proposed testimony unless plaintiff explains why such testimony is relevant, supporting her explanation with clear authority from case law, in a brief lette r to the Court that must be filed no later than 8:30 a.m. on November 27, 2017. Defendant's motion to preclude lump sum and per diem arguments is granted in part, as explained in this Opinion. Plaintiff's request for a missi ng witness charge is denied. Jury selection will begin at 9:00 a.m. on November 27, 2017. Counsel shall be present in the courtroom no later than 8:30 a.m. on that date. So Ordered by Magistrate Judge Cheryl L. Pollak on 11/21/2017. (Blase, Brendan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
14 CV 2429 (CLP)
-againstAMERICAN AIRLINES, INC.,
POLLAK, United States Magistrate Judge:
On February 24, 2014, plaintiff Janet Reynolds commenced this action against defendant
American Airlines, Inc. (“defendant” or “American Airlines”) in the Supreme Court of the State
of New York, Queens County, seeking damages for personal injuries she allegedly suffered
when the right rear door of an American Airlines 767 airplane fell down on her back, knocking
her to the floor of the plane. Defendant removed the action to the Eastern District of New York
on April 15, 2014. On May 13, 2014, the parties consented to proceed before the undersigned.
Trial is scheduled to commence on November 27, 2017.
Currently pending before the Court are the parties’ pre-trial motions in limine, as well as
plaintiff’s motion for a missing witness charge.
A. Legal Standards
1. Motions in limine
“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the
practice has developed pursuant to the district court’s inherent authority to manage the course of
trials.” Luce v. United States, 469 U.S. 38, 40 n.4 (1984). “The purpose of a motion in limine is
to allow the trial court to rule in advance of trial on the admissibility and relevance of certain
forecasted evidence.” Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011);
accord Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (explaining that in limine rulings
“aid the trial process” by providing the court with the opportunity to decide the issue of
admissibility “without lengthy argument at, or interruption of, the trial”). “Evidence should be
excluded on a motion in limine only when the evidence is clearly inadmissible on all potential
grounds.” United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). Thus, the party
moving in limine “bears the burden of establishing that evidence is inadmissible for any purpose
and so properly excluded[.]” United States v. Johnson, No. 16 CR 457, 2017 WL 5125770, at *2
(E.D.N.Y. Sept. 21, 2017). “Courts considering a motion in limine may reserve decision until
trial, so that the motion is placed in the appropriate factual context.” United States v. Johnson,
2017 WL 5125770, at *2 (quoting Jean-Laurent v. Hennessy, 840 F. Supp. 2d at 536). “The
ruling is subject to change when the case unfolds[;] [i]ndeed, even if nothing unexpected
happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a
previous in limine ruling.” Luce v. United States, 469 U.S. at 41–42. 1
This does not mean that the parties may ignore the Court’s in limine rulings at trial, for
2. Expert Witnesses
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
Fed. R. Evid. 702. The text of Rule 702 makes it clear that there are two prerequisites that must
be met before the testimony of an expert witness can be admitted into evidence. First, the trial
court must ensure that the witness is properly qualified as an expert to testify on matters that are
scientific, technical, or specialized in nature, see Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81
(2d Cir. 1997); and second, the trial court must determine that the expert’s testimony will assist
the trier of fact in understanding the evidence or determining an issue of fact. See Campbell v.
Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 184-85 (2d Cir. 2001) (noting that determining
whether expert testimony will assist the fact finder “‘entails a preliminary assessment of whether
the reasoning or methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue’”) (quoting Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993)); United States v. 31-33 York Street,
930 F.2d 139, 141 (2d Cir. 1991) (excluding expert testimony that would only complicate, not
assist, the jury’s decision on “a simple question for which the jury needed no help”); see also
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).
they remain the Order of the Court unless altered. Instead, any party may, out of the hearing of
the jury, seek reconsideration of an in limine ruling based on the evidence adduced at trial.
In short, the trial court functions in a “gatekeeping” capacity and must ensure “that an
expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 597; see also Zuchowicz v. United States, 140
F.3d 381, 386 (2d Cir. 1998); Borgognone v. Trump Plaza, No. 98 CV 6139, 2000 WL 341135,
at *3 (E.D.N.Y. Mar. 9, 2000); Textron, Inc. v. Barber-Colman Co., 903 F. Supp. 1546, 1552
(W.D.N.C. 1995). The question of the admissibility of expert testimony is for the trial judge to
resolve and the court has “broad discretion” in making that determination. United States v.
Feliciano, 223 F.3d 102, 120 (2d Cir. 2000), cert. denied, 532 U.S. 943 (2001); Palazzetti
Import/Export, Inc. v. Morson, No. 98 CV 722, 2001 WL 793322, at *2 (S.D.N.Y. July 13,
B. Plaintiff’s Motions in Limine
On November 3, 2017, the plaintiff filed her omnibus motion in limine seeking to limit
the introduction of testimony from various witnesses and documents from various sources. (See
Pl.’s MIL, 2 Nov. 3, 2017). The Court addresses each request in turn.
1. Motions to Preclude Expert Testimony
a. Motion to Preclude the Testimony of William Meyer, P.E.
Plaintiff moves to bar the testimony of defendant’s liability expert, William Meyer, P.E.,
on biomechanics, impact kinematics, and injury causation and to further preclude defendant from
offering these theories as affirmative defenses. (See Pl.’s MIL at 1-4). Plaintiff argues that this
expert testimony is “unreliable,” because the witness failed to inspect the airplane door
Citations to “Pl.’s MIL” refer to plaintiff’s Motion in Limine filed on November 3, 2017,
ECF No. 84.
immediately after the accident and he based his analysis on insufficient facts and data. (Id. at 3).
She further contends that such testimony is beyond the witness’ expertise because he is not a
medical doctor and cannot opine on the cause of medical injuries, nor is he a biomechanical
expert, and thus his testimony would not be helpful to the trier of fact. (See id. at 3-4).
In her motion, plaintiff seems to focus on one sentence at the end of Mr. Meyer’s report
that states: “ Ms. Reynolds[’] alleged accident does not comport with a kinematic analysis of the
event based on her described movement and point of contact and the characteristics of the door
open.” (Meyer Report at 5, Ex. A to Pl.’s MIL, ECF No. 87-1). A review of the entire report
demonstrates that Mr. Meyer’s analysis, apart from this one sentence, does not provide an
analysis of how the door caused the specific medical injuries that plaintiff is claiming which
would be consistent with a biomechanical expert’s opinion. Instead, Meyer’s report focuses on
the mechanics of the door and the physics of how the door opens and descends. As a professional
engineer, Mr. Meyer is qualified to make such an analysis and to opine on the way in which the
door would have descended in relation to an individual moving through or standing underneath
it. Apart from his training and education as an engineer, Mr. Meyer’s curriculum vitae indicates
that he has had experience in “accident reconstruction,” and thus is qualified to opine on
plaintiff’s version of events given the physics of the door’s operation and mechanics. (See
Meyer CV, Ex. A to Pl.’s MIL).
Accordingly, the Court denies the motion to preclude Mr. Meyer’s testimony except to
the extent that he discusses the “kinematic analysis.” In order for the opinion to be helpful to
the jury, Mr. Meyer will need to define kinematics and explain what it means. However, to the
extent the Court understands that it is a reference to a branch of mechanics that describes the
motion of points, objects, and systems of objects, that would be within his expertise as an
engineer and would be something to which he could testify upon laying a proper foundation.
b. Motion to Preclude the Testimony of Joseph Pessalano, M.A., CRC
Plaintiff also moves in limine to preclude the testimony of Joseph Pessalano, defendant’s
rehabilitation specialist. (See Pl.’s MIL at 4-5). Plaintiff argues that Pessalano’s proposed
testimony is unreliable, beyond his expertise, and not helpful to the trier of fact. (Id.) Plaintiff
contends that he is not a medical doctor, never personally examined the plaintiff, and cannot
opine on the causation of her injuries. (Id.)
A review of his report, however, demonstrates that Mr. Pessalano does not offer an
opinion about the causation of her injuries; his opinion relates to the plaintiff’s ability to work at
certain jobs. (See Pessalano Report, Ex. B. to Pl.’s MIL, ECF No. 87-2). Vocational
rehabilitation specialists regularly testify about a plaintiff’s capacity to participate in the
workforce based on their physical and mental abilities, the potential for rehabilitation to improve
ability to join the workforce, availability of jobs, and the like. See Kavanagh v. Ogden Allie3d
Maintenance Corp., 92 N.Y.2d 952, 954-55, 705 N.E.2d 1197, 1198, 683 N.Y.S.2d 156, 157
(1998); see also Morgan v. Jacques, 08 CV 64, 2010 WL 11537864, at *3 n.1 (D. Vt. Oct. 5,
2010) (observing that vocational rehabilitation specialists regularly satisfy Daubert when
testifying as to an individual’s rehabilitation, access to jobs, placeability in suitable jobs, earning
capacity, and labor force participation); but see Thalrose v. United States, No. 85 CV 0142, 1991
WL 148502, at *3 (E.D.N.Y. July 17, 1991) (suggesting the testimony of experts such as
vocational rehabilitation specialists is “useless”).
Moreover, while plaintiff objects to Mr. Pessalano’s reliance on the reports of other
experts, including the defendant’s expert narrative reports, plaintiff fails to cite any provision of
the Federal Rules of Civil Procedure that prohibits an expert from reviewing another expert’s
reports in order to come to his conclusions. In fact, Rule 703 of the Federal Rules of Evidence
specifically contemplates that an expert witness may rely on inadmissible facts or data, so long
as “experts in the particular field would reasonably rely on those kinds of facts or data in forming
an opinion on the subject.” Fed. R. Evid. 703; see Gill v. Arab Bank, PLC, 893 F. Supp. 2d 523,
532 (E.D.N.Y. 2012) (rejecting argument that an expert and his report should be disqualified for
reliance on inadmissible hearsay).
Accordingly, the motion to preclude Mr. Pessalano from testifying is denied.
c. Motion to Preclude the Testimony of Jessica Berkowitz, M.D.
Plaintiff seeks to preclude the testimony of defendant’s radiological expert, Jessica
Berkowtiz, M.D., on the grounds that she is not qualified to opine on the causation of plaintiff’s
injuries because she never personally examined plaintiff and only reviewed the diagnostic films.
(Pl.’s MIL at 5-6). A review of the doctor’s report and curriculum vitae indicates that she has
specialized training in neuro-radiology and therefore is qualified to review diagnostic films and
interpret those films based upon her review. (See Berkowitz Report, Ex. C to Pl.’s MIL, ECF
No. 87-3). Her opinion as to whether the injuries she observed on those films were traumatic or
degenerative in nature is clearly within the scope of her expertise and training as a medical
doctor and radiologist. Nowhere in her papers does plaintiff cite any authority that would
support preclusion of a radiologist’s testimony based upon the doctor’s failure to examine the
Accordingly, the motion to preclude Dr. Berkowitz’s testimony is denied.
2. Motion to Preclude the Testimony of Mr. DuBreuil
Plaintiff seeks to preclude the defendant from introducing into evidence the transcript of
defendant’s fact witness, Robert DuBreuil, on the grounds that it would violate the Due Process
Clause and the right to confront and cross examine witnesses. (See Pl.’s MIL at 6-8). Plaintiff
argues that because American Airlines is not producing the witness at trial, it should not be
allowed to use the transcript of his prior testimony, even though the plaintiff has designated
portions of such testimony for use in her case in chief. (See id.; see also Amended Joint PreTrial Order, Nov. 6, 2017, ECF No. 90).
Defendant argues that the examination of Mr. DuBreuil, as reflected in the transcript, was
actually conducted by plaintiff’s co-counsel, who was given a full and fair opportunity to
question the witness thoroughly on all of the plaintiff’s claims and American’s defenses. (Def.’s
Opp’n at 8, Nov. 13, 2017, ECF No. 94). The issue of missing records, which is at the heart of
plaintiff’s objection to the witness’ deposition transcript, was known to the plaintiff’s counsel at
the time of the deposition; the fact that plaintiff’s new counsel is now dissatisfied with the extent
to which her co-counsel delved into the details of these records does not provide a basis for
claiming a due process violation. (Id. at 8-10).
As was discussed at an earlier court conference, Mr. DuBreuil resides in Irving, Texas,
well beyond the boundaries of the subpoena power of this Court. Indeed, the witness was
deposed by video conference while he was in Texas. The defendant designated him as the
appropriate Rule 30(b)(6) witness because at that time, over three years ago, he held a position
within the company that rendered him most knowledgeable as to the relevant facts. At the time
of the deposition, defendant claims that it did not know—and plaintiff has presented no evidence
to suggest otherwise—that the witness would retire before the trial and be unwilling to travel to
New York. Having now retired, Mr. DuBreuil is no longer within the control of American
Airlines and cannot be compelled to travel to New York.
When the issue was first brought to the attention of the Court and plaintiff’s counsel,
there were several options offered, including the designation of a substitute witness with the
opportunity for a new deposition; use of the deposition transcript; a subpoena out of the district
in Texas for a videotaped deposition de bene esse of the witness; or a subpoena for testimony by
contemporaneous transmission under Rule 43(a) of the Federal Rules of Civil Procedure. (See
Minute Entry, Oct. 12, 2017, ECF No. 73). Plaintiff made no attempt to avail herself of the other
procedures offered by the Court and the Federal Rules of Civil Procedure, and thus chose to
proceed with the deposition transcript. She cannot now complain that she has been deprived of
her Due Process rights under the circumstances.
Defendant’s use of Mr. DuBreuil’s deposition testimony is also proper under Rule 32 of
the Federal Rules of Civil Procedure, which provides that: “A party may use for any purpose the
deposition of a witness, whether or not a party, if the court finds:” “that the witness is more than
100 miles from the place of hearing or trial,” Fed. R. Civ. P. 32(a)(4)(B), or “that the party
offering the deposition could not procure the witness’s attendance by subpoena.” Fed. R. Civ. P.
32(a)(4)(D). Mr. DuBreuil, who resides in Texas, is clearly more than 100 miles from the
courthouse in Brooklyn, and thus the defendant may use his deposition testimony.
Plaintiff’s motion to preclude the defendant’s use of DuBreuil’s depositions testimony is
3. Motion to Preclude the Testimony of Jerome Harvey
Plaintiff seeks to preclude the introduction of deposition testimony of non-party witness
Jerome Harvey, one of plaintiff’s co-workers, on the basis that he is not “unavailable” within the
meaning of Rule 32 of the Federal Rules of Civil Procedure. (Pl.’s MIL at 8-9). Defendant
responds by explaining that it has issued a subpoena to secure Mr. Harvey’s attendance at the
trial of this matter. (Def.’s Opp’n at 10-11). If Mr. Harvey complies with the subpoena, he will
attend trial and present live testimony, rendering plaintiff’s motion moot. If he fails to attend
despite a valid subpoena, or if he is unable to be served, defendants will have satisfied Rule 32.
(Id. at 11).
While it is unknown whether Mr. Harvey will appear at trial, if he fails to appear, by
issuing and serving a subpoena for his attendance the defendant will have demonstrated that it
“could not procure the witness’s attendance by subpoena,” Fed. R. Civ. P. 32(a)(4)(D), and thus
“may use for any purpose the deposition of” Mr. Harvey. Fed. R. Civ. P. 32(a)(4). Plaintiff’s
motion to preclude the deposition testimony of Mr. Harvey is therefore denied.
4. Motion to Preclude Cumulative Records and Exhibits
Plaintiff moves to preclude defendant from producing cumulative medical reports,
diagnostic tests, incident reports, and maintenance records to avoid confusion to the jury. (See
Pl.’s MIL at 9-10). As was discussed at the pretrial conference, the parties are Ordered to confer
and agree on the exhibits to be used at trial, and only one set of each will be admitted into
C. Defendant’s Motions in Limine
1. Defendant’s Motion to Preclude Dr. Ikezi as an Expert Witness
Defendant American Airlines moves to preclude plaintiff’s treating physician, Dr.
Stanley Ikezi, M.D., from testifying as to any issues outside of his treatment of the plaintiff
because the plaintiff did not file an expert disclosure pursuant to Rule 26(a)(2)(B) and did not
provide a narrative report. (See Def.’s Ikezi MIL, Nov. 3, 2017, ECF No. 82). Defendant notes
that on December 20, 2016, plaintiff served an Expert Disclosure, designating the doctor as a
potential expert witness for trial. However, plaintiff did not attach a narrative report but simply
provided the operative report detailing the performance of the discectomy that the doctor
performed. (Id. at 1; see also Pl.’s Designation of Ikezi, Ex. A. to Def.’s Ikezi MIL).
Subsequently, on March 21, 2017, plaintiff provided another operative report of the doctor
regarding his insertion of a stimulator into plaintiff’s back. (Def.’s Ikezi MIL at 1). Defendant
argues that neither of the reports that have been provided satisfy the requirements of Rule
26(a)(2)(B). (See id.)
In the Joint Pretrial Order, Dr. Ikezi’s proposed testimony is described as including “the
permanent physical disability of Plaintiff, as a direct result of the accident,” the “substantial
physical limitations and restrictions” plaintiff faces, and the causal relationship of the injuries to
the subject accident. (See Am. Joint Pre-Trial Order (“JPTO”) at 11-12, Nov. 6, 2017, ECF No.
90). Rule 26(a)(2)(B) requires that an expert witness produce a report that contains, among other
things: 1) a complete description of all opinions the witness will express and the reasons for
them; 2) the data or information considered by the witness; 3) exhibits used to summarize or
support the opinions; and 4) information regarding the witness’s qualifications, including
publications, other testimony, and compensation. See Fed. R. Civ. P. 26(a)(2)(B). Treating
physicians may be called to testify at trial “without any requirement for a written report.” Fed.
R. Civ. P. 26(a)(2)(B) advisory committee note on 1993 amendment. However, when there is no
expert report provided, the treating physician may only testify as to facts acquired and opinions
formed during the treatment of the patient. See, e.g., Ali v. Connick, No. 11 CV 5297, 2016 WL
3002403, at *9 (E.D.N.Y. May 23, 2016).
Courts have not yet fully developed the standard by which to determine the extent of the
disclosures required of a treating physician who seeks to offer testimony beyond facts acquired
and opinions formed during the physician’s personal consultation with and treatment of the
patient. One court in this district has relied on the 2013 addition of Rule 26(a)(2)(C), which
requires a disclosure from experts who do not provide a full written report under Rule
26(a)(2)(B), as adding to a court’s “limited toolbox.” See Ali v. Connick, 2016 WL 3002403, at
*8. That court therefore concluded that a treating physician may provide “testimony that also
includes reliance on outside sources, such as another doctor’s records or opinions or facts
acquired as part of the litigation,” so long as the party provides a written disclosure setting forth
the subject matter of the witness’s expected expert testimony and a summary of the facts and
opinions to which the expert will testify. See id. at *8; Fed. R. Civ. P. 26(a)(2)(C). Under this
view, a treating physician need only provide a full written report under Rule 26(a)(2)(B) when
“circumstances suggest the doctor was ‘retained or specially employed to provide expert
testimony.’” Ali v. Connick, 2016 WL 3002403, at *9 (quoting Fed. R. Civ. P. 26(a)(2)(B)).
Although the Court agrees that the addition of Rule 26(a)(2)(C) does allow for a sort of
middle ground, where an expert witness need not produce the detailed report required by Rule
26(a)(2)(B), it is unclear how courts should determine whether circumstances suggest a doctor
was “retained or specially employed to provide expert testimony.” See id. The Court is also
persuaded by the reasoning of other courts that where a “[p]laintiff[‘s] treating physicians are
opining on causation—either specific or general—[d]efendants are entitled to full Rule
26(a)(2)(B) reports because such opinions go beyond those arising from treatment.” In re
Denture Cream Prods. Liab. Litig., No. 09 MD 2051, 2012 WL 5199597, at *5 (S.D. Fla. Oct.
This Court need not take a position on when a treating physician must provide a full Rule
26(a)(2)(B) report and when a disclosure under Rule 26(a)(2)(C) will suffice. Plaintiff’s
disclosure is clearly inadequate under either standard. Plaintiff’s disclosure only describes in the
most general and conclusory of terms the matters as to which Dr. Ikezi is expected to testify.
(See Pl.’s Expert Disclosure at 2, Ex. A to Def.’s Ikezi MIL, ECF No. 82-1). The disclosure
provides no specificity with respect to Dr. Ikezi’s expected expert testimony as distinguished
from his factual testimony as a treating physician, and merely seeks to incorporate the attached
operative reports as if they were sufficient to provide the information required by Rule 26(a)(2).
The operative reports contain information and opinions gained during the course of treatment,
but shed no light on what evidence Dr. Ikezi might seek to introduce under Federal Rules of
Evidence 702 and 703. Furthermore, nothing in the disclosure gives notice of how Dr. Ikezi
might have arrived at an opinion about causation of plaintiff’s injuries, the degree of future
disability, and the cost of future medical care. Perhaps more importantly, none of the records
attached to the disclosure contain any of this information, which suggests that, rather than
forming such opinions during the course of treating Ms. Reynolds, Dr. Ikezi has formed or will
form those opinions solely for purposes of testifying at trial.
Given that the plaintiff has not provided a sufficient disclosure from Dr. Ikezi under Rule
26(a)(2)(C) or a written report from him under Rule 26(a)(2)(B), the defendant’s motion in
limine is granted. Dr. Ikezi may testify only to those facts acquired and opinions formed during
his treatment of the plaintiff, as reflected in his contemporaneously-generated medical records.
2. Defendant’s Motion in Limine to Preclude the Testimony of Captain Douglas Moss
Defendant seeks to preclude the testimony of plaintiff’s expert witness Captain Douglas
Moss on several grounds: 1) he lacks the technical, scientific knowledge necessary to render an
opinion on defendant’s negligence; 2) his testimony is speculative, conclusory and not based on
scientific testing or principles; and 3) his testimony is being offered to bolster the credibility of
the plaintiff. (See Def.’s Moss MIL at 1, Nov. 3, 2017, ECF No. 83).
Captain Moss’ testimony includes the following opinions, “within a reasonable degree of
aeronautical engineering certainty:”
1) American Airlines had a statutory duty to record the defective
service door when it was brought to their attention.
2) If the airlines took the proper action to remedy the defect, they had
a statutory duty to record the remedial action.
3) The airlines should not have released the plane after it was aware of
the defective door until it was remedied and the remedy was
4) “The cause of the door hitting Ms. Reynolds in her back is most
likely a malfunctioning door lock mechanism compounded by a
maladjustment of the spring counterbalance in the door. This injury
to Ms. Reynolds, or to any other individual who passed through this
doorway, was foreseeable to [American Airlines] since they were
made aware of the defective door mechanism as relayed by Ms.
Reynolds on previous occasions regarding the same aircraft. This
uncorrected door lock mechanism and maladjustment of the spring
counterbalance would have caused it to fall with greater acceleration
and thus would have attained a higher speed than normal.
(Moss Report at 2, Ex. A to Def.’s Moss MIL, ECF No. 83-1).
Defendant argues that during Captain Moss’s deposition, it became clear that Captain
Moss relied solely on the hearsay statements of the plaintiff in reaching his conclusions.
Moreover, although he opines that the locking mechanism of the door is defective, he testified
during his deposition that the incident could also have been caused by the improper locking of
the door by one of plaintiff’s co-workers. (See Moss Dep. 55:12-56:20).
Defendant argues that the case is similar to Viscusi v. Proctor & Gamble, No. 05 CV
1528, 2007 WL 2071546 (E.D.N.Y. July 16, 2007), where the plaintiff sued for injuries she
suffered after applying a hair dye manufactured by the defendant. In precluding the testimony of
plaintiff’s medical expert, an internist, who was not Board certified in dermatology, allergies, or
neurology, the court noted that the doctor had never authored any articles, never been qualified
as an expert, and never been involved in peer review. See id. at *3. Defendant argues that
Captain Moss is a United Airlines pilot who has never repaired airplane doors, never operated
one except in simulated pilot training operations, and had never examined an exemplar door until
two weeks before his deposition when he looked at a door on an aircraft owned by United
Airlines. (See Def.’s Moss MIL at 11). As of the date of this Order, the Court does not know if
the plane was manufactured in the same way or if the doors on the two planes function in the
same manner to be comparable for purposes of opining on the locking mechanism.
Plaintiff argues that the captain is fully qualified to testify, having worked in the airline
field for 27 years and being familiar with both the Boeing B-767 and B-757 planes. As a
captain, he is responsible for the operation of the plane, including ensuring that all maintenance
checks and documentation are in compliance with the rules governing commercial airline
service. His academic education includes both a Bachelor of Science and a Masters in
engineering and apart from his experience as a pilot, he is the Managing Member of AeroPacific
Consulting LLC, which provides aviation related accident investigation, consulting, training and
The Court finds Captain Moss to be qualified to testify about the maintenance
requirements, reporting requirements, and the operation of the aircraft. However, his opinion
that the defendant was under a duty to record the malfunctioning door and failed to do so is of
little relevance to this litigation. The regulations Captain Moss cites, 14 C.F.R. §§ 121.701, 709,
relate to the flight safety of the aircraft. Captain Moss’s report makes it clear that the purpose of
the regulations is to ensure safe flight operations, not safe ground operations. (See, e.g. Moss
Report at 11 (explaining the regulation relates to “airworthiness”); id. at 12 (noting that records
must be maintained for defects that affect “flight safety” and that defects must be repaired
“before the airplane flew again”)). Captain Moss concludes, based on plaintiff’s statements, that
there must have been a defect, that the defendant did not record the defect, and that the defendant
“should not have released [the aircraft] for flight” “until [the defect] was adequately remedied
and that remedial action was properly recorded.” (Moss Report at 15-16). The majority of
Captain Moss’s opinions thus relate either to what the defendant should have done after the
plaintiff’s alleged injury for the protection of passengers and crew, or after the defect became
known to American Airlines. (See id.) Even if the defendant failed to comply with its recordkeeping duties after the plaintiff’s alleged injuries, such a record-keeping failure—which relates
to flight safety—has nothing to do with plaintiff’s alleged injuries; it cannot be argued that the
failure to report and maintain a record after the fact caused the plaintiff to be injured. Such
testimony is not, therefore, helpful to the jury in determining whether the defendant acted
negligently and thus caused the plaintiff’s injuries. See Fed. R. Evid. 702(a).
At this point, it is unclear to the Court what relevance the post-accident records
implicated by 14 C.F.R. § 121.701 would have in proving negligence. Even if relevant, “[w]hen
measures are taken that would have made an earlier injury or harm less likely to occur, evidence
of the subsequent measures is not admissible to prove negligence; culpable conduct; a defect in
a product or its design; or a need for a warning or instruction.” Fed. R. Evid. 407; see also
D’Nelson v. Costco Wholesale Corp., No. 03 CV 219, 2007 WL 914311, at *4-5 (E.D.N.Y. Mar.
23, 2007) (collecting cases). Even if the testimony was offered to suggest that the accident
would not have occurred if the airline had received notice of the defect prior to the accident,
plaintiff has provided no authority to support this argument. Indeed, plaintiff’s argument appears
to be an expanded res ipsa loquitur argument—namely, that the absence of records demonstrates
that the airline must have been negligent. However, the argument hinges on a number of highly
contested facts, including whether a report of the defect was made to American Airlines prior to
the accident and whether there was a defect that required reporting and repair. Thus, even if the
testimony were helpful, it runs the risk of misleading the jury and confusing the issues, for it
suggests that failure to comply with the recordkeeping requirement imposed by regulation,
whether such failure occurred before or after the plaintiff was allegedly injured, establishes the
defendant’s negligence with respect to the incident, even in the absence of proof of causation.
The significant risk of misleading the jury and confusing the issues far outweighs the minimal
probative value of Captain Moss’s testimony regarding general recordkeeping requirements,
which relates primarily to the collateral issue of the defendant’s alleged spoliation. 3 See Fed. R.
In denying plaintiff’s motion for a mandatory adverse inference, the Court previously
concluded that the defendant had a duty to preserve certain maintenance records, but that such a
It is also unclear whether even general testimony as to the recordkeeping requirement
would be relevant to the issues in this case or helpful to the jury, since Captain Moss explains
that the relevant regulation addresses “flight safety,” not ground safety, and appears not to
provide a standard of care with respect to this type of incident. (See Moss Report at 11-12).
Even if the Court determines the regulation may be used to provide a standard of care, the very
source plaintiff relies on to request a jury charge explains that “[i]t is error to permit a party to
attempt to prove negligence by expert testimony regarding the meaning and applicability of a
statute or regulation imposing a standard of care.” 1A New York Pattern Jury Instructions—
Civil 289 (3d ed.); see id. (collecting cases).
The Court precludes Captain Moss’s proposed testimony on the recordkeeping
requirement unless plaintiff can explain why such testimony is relevant and supports its
explanation with clear authority from case law.
duty may not have arisen prior to the routine destruction of the records pursuant to defendant’s
record retention policy. (See Order at 7-8, Jan. 7, 2016 ECF No. 35). Even assuming the duty to
preserve arose before the documents were destroyed, the Court determined that there was only a
speculative showing of culpable conduct and insufficient evidence that the allegedly-spoliated
documents were relevant to support an adverse inference. (See id. at 8-10, 10-12). The Court
therefore ruled that plaintiff would be able “to present her arguments based on the absence of the
subject records at trial,” and the defendant would have the opportunity “to present its arguments
about the irrelevance of the missing evidence.” (Id. at 12). That remains true today; the plaintiff
may use the deposition testimony of Robert DuBreuil—the same testimony cited in her motion for
an adverse inference—regarding the defendant’s recordkeeping policy and the content of such
records. She may also rely on her own testimony, as well as that of other witnesses, to present her
arguments about the absence of the records at trial. (See id.) It does not necessarily follow,
however, that she may use an expert witness to make those arguments, especially when the expert
witness will testify only as to the general requirements under federal regulations, which may not
correlate directly to the specific records at issue here. (See id. at 2-4 (summarizing DuBreuil’s
deposition testimony regarding the different inspections performed by American Airlines)).
With respect to his opinion regarding a defect in the plane door, Captain Moss has listed
no experience as to the specific operation or configuration of the door in question and, more
importantly, there is no scientific or engineering basis for his opinion regarding the alleged
defect in the door. Indeed, defendant argues that while Moss has an engineering degree, he does
not base his opinion regarding the alleged defect in the door on engineering principles; rather, his
whole opinion on the possible door malfunction is speculative because he relies solely on
plaintiff’s statement that the door hit her in her back and his observations as to the movement of
the door, something that is within the ability of the jury to observe without the help of an expert.
See Fed. R. Evid. 702(a). (See Def.’s Moss MIL at 12-14).
Defendant also argues that there is no connection between Moss’s opinion as to the defect
and any data. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). As the court in Viscusi
noted, a trial court in determining whether to admit expert testimony, should consider “(1)
whether a theory or technique relied on by an expert can be and has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) whether there is a
known or potential rate of error; (4) whether the theory or technique has been generally accepted
in the relevant community; (5) whether the discipline itself lacks reliability; (6) whether an
expert’s methodology is experience-based, whether the methodology has produced erroneous
results in the past and whether the methodology has been generally accepted in the relevant
community; and (7) whether an expert’s method is a kind that others in the field would recognize
as acceptable.” Viscusi v. Proctor & Gamble, 2007 WL 2071546 at *7. Here, Captain Moss’s
testimony fails on all grounds. He does not utilize any theory or technique that could be
replicated or tested; he simply relies on the plaintiff’s testimony that the door came down on her
back to conclude that there was a defect in the locking mechanism. However, as was made clear
during his deposition, Captain Moss cannot say with any degree of certainty that there was a
defect in the door that caused it to malfunction. Indeed, when pressed, he admitted that the door
could have fallen if a co-worker failed to “lock” it in place. (See Moss Dep. 55:12-56:20; id.
57:11-60:11 (acknowledging that Moss has no way of determining whether operator error or a
broken locking mechanism caused the accident, other than plaintiff’s statements)). Thus, there is
no scientific basis for his opinion; he is simply speculating on what may have happened based on
what plaintiff has said.
Defendant contends that it would be prejudicial for the jury to consider Captain Moss’s
testimony to the extent that it is based on credibility assessments of the plaintiff. (Def.’s Moss
MIL at 15-18). In Nimely v. City of New York, the Second Circuit noted that it has
“disapproved of the practice of expert witnesses basing their conclusions on the in-court
testimony of fact witnesses, out of concern that such expert testimony may improperly bolster
the account given by the fact witnesses.” 414 F.3d 381, 398 (2d Cir. 2005). Defendant argues
that if the captain is allowed to testify that he believed the plaintiff’s statements and thus based
his conclusions on them, this will suggest to the jury that they too should believe the plaintiff’s
statements. (Def.’s Moss MIL at 17). Since “[e]xpert evidence can be both powerful and quite
misleading because of the difficulty in evaluating it,” courts must exercise heightened control
over the admission of such evidence. Daubert, 509 U.S. at 595.
Having reviewed Captain Moss’s proposed testimony regarding the alleged defect in the
airplane door, the Court concludes that his testimony would not be helpful to the jury because his
opinion in no way relies on his training and experience as an engineer and pilot. See Fed. R.
Evid. 702(a). Furthermore, to the extent his opinions express his view that plaintiff’s testimony
is credible, without reference to other data, such testimony would be more prejudicial than
probative and poses an inordinate risk of misleading the jury, particularly given that Captain
Moss seeks to testify as an expert. See Fed. R. Evid. 403; Nimely v. City of New York, 414 F.3d
For the reasons set forth above, the defendant’s motion to preclude the testimony of
Captain Moss regarding the defect in the door is granted. The Court reserves decision as to the
remainder of the motion pending plaintiff’s submission explaining, with citation to case law,
how Captain Moss’s proposed testimony regarding recordkeeping is relevant.
3. Defendant’s Motion in Limine to Preclude Lump Sum and Per Diem Arguments
Regarding Non-Economic Damages
Defendant moves to preclude plaintiff’s counsel from mentioning a specific dollar figure,
whether lump sum or per diem, to compensate plaintiff for non-economic damages in either the
opening or closing arguments. (See Def.’s Damages MIL at 1, Nov. 3, 2017, ECF No. 81). The
defendant contends that such arguments are improper because there is no factual basis upon
which to calculate damages that are, by definition, not susceptible to objective measurement.
Defendant further argues that suggesting a figure for non-economic damages “anchors” the jury
in rendering a verdict, resulting in an excessive verdict “inordinately influenced by an arbitrary
and irrelevant number.” (Def.’s Damages MIL at 2 (quoting Gretchen B. Chapman & Brian H.
Bomstein, The More You Ask For, the More You Get: Anchoring in Personal Injury Verdicts,
10 Applied Cognitive Psychology 519 (1996)).
“[T]he Second Circuit ‘stated in the context of monetary awards for pain and suffering
that “specifying target amounts for the jury to award is disfavored.”’” Jean-Laurent v. Hennessy,
840 F. Supp. 2d 529, 558 (E.D.N.Y. 2011) (emphasis in original) (quoting Edwards v. City of
New York, No. 08 WL 2748665, at *2 (E.D.N.Y. July 13, 2011) (quoting Consorti v. Armstrong
World Indust., Inc. 72 F.3d 1003, 1016 (2d Cir. 1995), vacated on other grounds, 518 U.S. 1031
(1996))). In other contexts, the Second Circuit has favored a “flexible approach” to such
arguments, reasoning that “[i]t is best left to the discretion of the trial judge, who may either
prohibit counsel from mentioning specific figures or impose reasonable limitations, including
cautionary jury instructions.” Lightfoot v. Union Carbide Corp. 110 F.3d 898, 912 (2d Cir.
In light of the Second Circuit’s guidance, the Court will not permit plaintiff to submit to
the jury a specific dollar amount regarding her non-economic damages, including pain and
suffering, in either her opening statement or closing argument. Plaintiff will be permitted,
however, to submit to the jury during her closing argument a specific dollar amount regarding
other compensable damages she alleges to have suffered as a result of the defendant’s alleged
negligence, so long as any figure submitted to the jury has a reasonable basis in admissible
evidence introduced during plaintiff’s case in chief and defendant has an opportunity to respond
if it chooses to do so. Furthermore, the Court will instruct the jury, as is its practice, that
statements by counsel are not evidence or law. Specifically, the Court will provide the following
instruction to the jury:
During closing remarks, counsel for plaintiff may have suggested a
specific dollar amount she believes should be awarded to plaintiff as
damages for various items. An attorney is permitted to make
suggestions as to such amounts, but those suggestions are argument
only; they are not evidence and you should not considered such
arguments as evidence of plaintiffs’ claims or damages. Because
these dollar figures advanced by counsel do not constitute evidence
and merely represent argument, you are free to disregard these
numbers entirely in your deliberations. Your damage award, if any,
should be based upon the testimony and other evidence received
Such limitations will be sufficient to prevent the jury from being unduly influenced by any
suggested damages figure.
D. Plaintiff’s Request for a Missing Witness Charge with Respect to Robert DuBreuil
Plaintiff requests that the Court include a missing witness charge in its instructions to the
jury. (See Pl.’s Mot. for Missing Witness Charge, Nov. 6, 2017, ECF No. 91). She bases her
motion on the Court’s January 7, 2016 Order denying her request for spoliation sanctions based
on certain documents plaintiff claims should have been produced. Specifically, the Court
explained in its Order:
[B]ecause a determination as to the contents of the missing
documents is a heavily factual question, one better suited for
determination at trial, the plaintiff shall be given the opportunity to
present her arguments based on the absence of the subject records at
trial. The defendant will also have the opportunity to present its
arguments about the irrelevance of the missing evidence to the jury,
who can better decide which theory to believe.
(Order, Jan. 7, 2016, ECF No. 35; see also Pl.’s Mot. for Missing Witness Charge at 2). While
the January 7, 2016 Order addressed missing documents, it made no mention of witnesses, and
thus has no bearing on plaintiff’s current request for a missing witness charge because Mr.
DuBreuil is not available and unwilling or unable to testify at trial.
However, plaintiff also seeks to read the Court’s October 31, 2017 Order, which does
deal with witnesses at trial, as somehow requiring that defendant must either produce Mr.
DuBreuil to give de bene esse testimony or designate a new witness to testify at trial. (See Pl.’s
Mot. for Missing Witness Charge at 2-3 (citing Order, Oct. 31, 2017, ECF No. 77)). The Order
imposes no such requirement. It simply provided that:
American Airlines has decided not to designate a different 30(b)(6)
witness for use at trial. (See Def.’s Opp’n at 1). If, however, the
defendant decides to designate a different 30(b)(6) witness for trial,
the Court will re-open discovery for the limited purpose of allowing
plaintiff to depose the newly-named 30(b)(6) witness. Should
defendant choose to designate a new witness, it must do so no later
than November 3, 2017, and the witness must be deposed as soon as
possible, but in no event later than November 15, 2017.
(10/31/2017 Order at 3-4). As explained supra, at 7-9, the Court sought only to provide both
parties with options for trial, including: the designation of a substitute witness with the
opportunity for a new deposition; use of the deposition transcript; a subpoena out of the district
in Texas for a videotaped deposition de bene esse of the witness; or a subpoena for testimony by
contemporaneous transmission under Rule 43(a) of the Federal Rules of Civil Procedure. (See
Minute Entry, Oct. 12, 2017, ECF No. 73). The defendant explicitly advised the Court at the
November 2, 2017 telephone conference that it would rely on the deposition transcript. Plaintiff
made no attempt to avail herself of the other procedures offered by the Court and the Federal
Rules of Civil Procedure, and thus chose to proceed with the deposition transcript, which she
confirmed by listing DuBreuil as a witness testifying only through deposition and designating
DuBreuil’s deposition testimony in the Joint Pre-Trial Order, but giving no indication that he
was a witness whom she would seek to subpoena for appearance at trial through any other
means. (See JPTO at 14 (indicating that “Robert DuBreuil is a fact witness expected to testify by
deposition at the time of trial”)). It strains all credulity that plaintiff’s counsel, after reading the
Court’s Orders, participating in the conference with the Court, and drafting the JPTO could in
good faith seek to construe the Court’s Orders in this way.
“A missing witness charge is appropriate where the witness is peculiarly within the
control of one party, and his or her testimony would be material.” Rippy-El v. Makram, 2000
WL 426202, 210 F.3d 355 (2d Cir. 2000) (table decision) (citing United States v. Caccia, 122
F.3d 136, 138 (2d Cir. 1997)). Mr. DuBreuil retired and is therefore not an employee of the
defendant. He is thus not “peculiarly within the control” of the defendant. “Plainly, the witness
could have been subpoenaed by either side,” either for attendance at trial, for simultaneous
broadcast of his testimony, or to take his testimony de bene esse, “and [plaintiff]’s failure to do
so cannot justify a missing witness charge.” Rippy-El v. Makram, 210 F.3d at 355.
Plaintiff’s motion for a missing witness charge with respect to Mr. DuBreuil is therefore
For the reasons set forth above, plaintiff’s motion in limine is denied with respect to
William Meyer, Joseph Pessalano, Jessica Berkowitz, Jerome Harvey and the deposition
testimony of Robert DuBreuil. With respect to plaintiff’s motion to preclude the introduction of
cumulative records and exhibits, the parties are Ordered to confer and agree on the exhibits to be
used at trial so that only one set of each will be admitted into evidence.
Defendant’s motion in limine with respect to Stanley Ikezi, M.D. is granted. Dr. Ikezi
may testify only to those facts acquired and opinions formed during his treatment of the plaintiff,
as reflected in his contemporaneously-generated medical records.
Defendant’s motion in limine to preclude the testimony of Captain Douglas Moss is
granted with respect to testimony regarding any defect in the door. The Court reserves decision
on whether to allow the remainder of Captain Moss’s testimony regarding recordkeeping
requirements, but will preclude such proposed testimony unless the plaintiff explains why such
testimony is relevant, supporting its explanation with clear authority from case law, in a brief
letter to the Court to be filed no later than 8:30 a.m. on November 27, 2017.
Defendant's motion to preclude lump sum and per diem arguments is granted in part, as
explained in this Opinion.
Plaintiffs request for a missing witness charge is denied.
Jury selection will begin at 9:00 a.m. on November 27,2017. Counsel should be present
in the courtroom no later than 8:30 a.m. on that date.
The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing(ECF)system or by mail.
Dated: Brooklyn, New York
/s/ Cheryl L. Pollak
United ^tes Magistrate Judge
Eastern District of New York
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