Rheault-Scherer v. Falcon Music & Art Productions, Inc.

Filing 116

ORDER regarding # 111 Order on Motion in Limine. Signed by Magistrate Judge Daniel J. Stewart on February 7, 2022. (gmd, )

Case 1:17-cv-01220-DJS Document 116 Filed 02/07/22 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARY LISE RHEAULT-SCHERER,
-v-

Plaintiff,

1:17-CV-1220
(DJS)

FALCON MUSIC & ART PRODUCTIONS, INC.,
Defendant.

APPEARANCES:

OF COUNSEL:

RUTBERG BRESLOW
Attorneys for Plaintiff
3344 Route 9N
Poughkeepsie, New York 12601

LAWRENCE A. BRESLOW, ESQ.
CARMINE J. CAROLEI, ESQ.

LAW OFFICES OF MICHAEL
E. PRESSMAN
Attorneys for Defendant
125 Maiden Lane
17th Floor
New York, New York 10005

STEVEN H. COHEN, ESQ.

DANIEL J. STEWART
United States Magistrate Judge
ORDER
Defendant raises two new in limine motions regarding photographs it seeks to
preclude from trial. First, Defendant objects to the introduction of a photograph of the
“Bridge Music” art exhibit taken on the Mid-Hudson Bridge. Dkt. No. 107 at p. 5.
Second, Defendant objects to the introduction of photographs included in Plaintiff’s

Case 1:17-cv-01220-DJS Document 116 Filed 02/07/22 Page 2 of 3

expert report that show subsequent remedial measures. Id. at pp. 6-7. Plaintiff opposes
the Motion in part. Dkt. No. 108.
As to photographs showing remedial measures, Plaintiff states that she has no
intention of offering the subject photographs into evidence. Dkt. No. 108 at p. 3. Those
photographs, therefore, are precluded. 1 The Court reserves ruling on the admissibility of
testimony regarding the feasibility of the precise remedial measure depicted in those
photographs subject to any objection that may be offered. See id. (discussing Plaintiff’s
intention to elicit such testimony).
With regard to the photograph of the Bridge Music exhibit from the Mid-Hudson
Bridge, the Court will reserve decision pending any proffer of the photograph at trial. The
Court is inclined to agree that the photograph of the exhibit at a different location, where
none of the facts underlying Plaintiff’s claim took place, bears little probative value to the
question the jury will be asked to decide. Plaintiff, however, intends to argue that the
exhibit was never meant for display at a venue such as The Falcon. Dkt. No. 108 at p. 2.
It is unclear that the photograph needs to be introduced to make this argument, but the
Court will consider arguments on this point at the time of trial. Similarly, the photograph
may be relevant if Defendant’s own expert offers evidence regarding testing performed
while the exhibit was installed on the Mid-Hudson Bridge. See id. Accordingly, the
Court reserves decision regarding this photograph. 2

The Court notes that numerous exhibits previously submitted by both parties contain photographs displaying
post-incident remedial measures.
2
Plaintiff’s objection that Defendant did not object to admission of the photograph during Mr. Bertolozzi’s
videotaped trial testimony is without merit as raising the objection prior to that testimony being played for the jury
is entirely appropriate.
1

2

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The Court notes in addition that while it had previously deferred ruling on
Plaintiff’s application to read from the deposition of Anthony Falco, Dkt. No. 96 at p. 2,
Mr. Falco’s subsequent death means that use of the deposition is appropriate, subject to
objections, under FED. R. EVID. 804.
IT IS SO ORDERED.
Date: February 3, 2022
Albany, New York

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