Fang v. Dofar et al

Filing 79

MEMORANDUM-DECISION AND ORDER re 60 Motion in Limine; 71 Motion in Limine; 73 Motion in Limine: The Court hereby ORDERS that Plaintiff's motion in limine regarding Plaintiff's traffic citation is GRANTED; and the Court further OR DERS that Plaintiff's motion in limine regarding evidence related to an incident with Plaintiff's former father-in-law in 2016 is DENIED; and the Court further ORDERS that Plaintiff's motion in limine regarding the use of her deposi tion transcript at trial is DENIED; and the Court further ORDERS that the Court RESERVES decision on Defendants' motion to preclude Harita Chiu and Susan Carleo from testifying at trial; and the Court further ORDERS that Defendants' moti on to preclude Maria Yu from testifying at trial is GRANTED; and the Court further ORDERS that the Court RESERVES decision on Defendants' motion to preclude Plaintiff from introducing evidence of economic loss; and the Court further ORDERS tha t Defendants' motion to preclude Plaintiff from introducing evidence in support of a claims for negligent hiring/retention is DENIED; and the Court further is ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 1/23/2019. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JIN J. FANG,
Plaintiff,
v.

9:15-CV-1251
(MAD/DEP)

MOHAMUD DOFAR and WERNER
ENTERPRISES, INC.,
Defendants.
APPEARANCES:

OF COUNSEL:

COZEN O'CONNOR
200 Four Falls Corporate Center
West Conshohocken, PA 19428
Attorneys for Plaintiff

CHRISTOPHER C. FALLON, JR., ESQ.

CARTER, CONBOY, CASE, BLACKMORE,
MALONEY & LAIRD, P.C.
20 Corporate Woods Boulevard
Albany, New York 12211
Attorneys for Defendants

JAMES A. RESILA, ESQ.
MATTHEW J. DILLON, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On October 20, 2015, Plaintiff Jin J. Fang ("Plaintiff") commenced this action in the
United States District Court for the Northern District of New York, pursuant to 42 U.S.C. § 1332.
See Dkt. No. 1 at ¶ 2. In the complaint, Plaintiff asserts that the negligence of Werner
Enterprises, Inc., and Mohamud Dofar ("Defendants") caused her injuries. See id. at ¶ 18.
Currently before the Court are the parties motions in limine. See Dkt. Nos. 60, 71, 73. Plaintiff
and Defendants have opposed the respective motions. See Dkt. Nos. 75, 77.

II. DISCUSSION
A.

Standard of Review
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 evidence. See Luce v. U.S., 469 U.S. 38, 40
n. 2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should
exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all
potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94–CV–5220, 1998
WL 665138, *3 (S.D.N.Y. Sept. 25, 1998) (citation omitted). Courts considering a motion in
limine may reserve decision until trial so that the motion is placed in the appropriate factual
context. See Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 287 (S.D.N.Y.
1996). Alternatively, the court is "free, in the exercise of sound judicial discretion, to alter a
previous in limine ruling" at trial as "the case unfolds, particularly if the actual testimony differs
from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41–42.
B.

Plaintiff's Motion in Limine
1.

Plaintiff's Traffic Citation

At the time of the accident, Plaintiff was cited for violating New York Vehicle and Traffic
Law ("VTL") § 1128C, making an unsafe lane change. See Dkt. No. 33-8. The citation was
dismissed. Plaintiff seeks to preclude evidence related to the issuance of the citation under rules
401, 402, and 403 of the Federal Rules of Evidence. See Dkt. No. 60 at 1-2. Defendants concede
to the preclusion of the actual citation but intend to offer the police report into evidence. See Dkt.
No. 75-8 at 5.
With regard to the admissibility of the VTL citation, the Court agrees with Plaintiff. Even
assuming that the traffic citation is an admissible fact through the police report, the Court finds
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that the prejudice substantially outweighs its probative value where there was no determination
that Plaintiff was guilty of the violation. The Court finds that the introduction of the unproven
traffic citation, which is inextricably intertwined with the incident giving rise to this lawsuit, "has
the potential to prejudice the jury's perception of the facts at issue." See Stephen v. Hanley, No.
03-CV-6226, 2009 WL 1471180, *7 (E.D.N.Y. May 21, 2009) (stating that there is a danger that
the jury will attach the same weight to the charge as they would a conviction). Accordingly,
Plaintiff's motion is granted.
2.

Use of Plaintiff's deposition

Plaintiff moves to preclude the use of her deposition transcript at trial or, in the
alternative, asks the Court to conduct a hearing regarding the qualifications of the translator who
provided interpretive services at the deposition. See Dkt. No. 73.
Rule 604 of the Fed. R. Evid. provides, "[a]n interpreter must be qualified and must give
an oath or affirmation to make a true translation." In this case, at the commencement of the
deposition, the interpreter answered affirmatively when asked to "swear or affirm" that the
testimony would be interpreted "accurately and consistently with the words spoken by the
claimant." See Dkt. No. 73-1 at 6. At that time, Plaintiff's counsel did not object to the
qualifications of the interpreter.
While Plaintiff cites to 28 U.S.C. § 1827(a) ("the Court Interpreter's Act") in support of
the argument to preclude the use of her testimony, see Dkt. No. 73 at 2, the Court Interpreter's Act
does not apply to civil cases between private parties. See Pedraza v. Phoenix, No. 93 CIV. 2631,
1994 WL 177285, at *1 (S.D.N.Y. May 9, 1994) (finding that the rights and protections of the
Court Interpreters Act do not extend to a civil plaintiff); see also Anderson v. State Bar of Cal.,
908 F.2d 976 (9th Cir. 1990) (unpublished table decision) (finding the Act inapplicable to a civil
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case initiated by a private plaintiff).
The Court has reviewed the entire deposition transcript. At no point during the deposition
did Plaintiff claim that she did not understand the questions posed to her. Jean v. Acme Bus
Corp., No. CV 08-4885 ARL, 2012 WL 4171226, at *6 (E.D.N.Y. Sept. 19, 2012). Early in the
proceeding, counsel discussed the interpretive services:
Mr. Fallon: Can we go off the record?
Mr. Decaire: We can keep going off the record, but I mean this is
her testimony. If there's - Mr. Fallon: This - - this young translator that you've hired - - we'll
stay on the record - Mr. Decaire: Okay.
Mr. Fallon: - - is a rising college senior.
Mr. Decaire: Okay.
Mr. Fallon: - - and I don't know if he's certified by the court system
to serve as a translator/interpreter, but I sense there is
an interpretation problem here and I'm not going to let
my client's testimony not be accurate because of
interpretation problems.
Mr. Decaire: But your sense is from her friend who is here who is
also not a certified translator, so how do we know she
is correct?
Mr. Fallon: Well, we know there was an impact and there's no
doubt that there was.
Mr. Decaire: Well, there's a lot of doubt in the case, but I need to get
the - - your client's testimony.
Mr. Fallon: I understand, but if we need to get a certified
interpreter to make sure - - this is the most critical part
of the liability portion of this case and it's got to be
done right and I happen to think I know what the right
answer is, but it's got to be done right and I don't think
it's being done right.
Mr. Decaire: Well, what - - what do you want to do then, Chris?
Mr. Fallon: I don't know, but it's, you know, I think she said in
response to an earlier answer of yours there was no
contact before the accident.
Mr. Decaire: Right, and I clarified that wasn't what I was asking.
Mr. Fallon: I understand and I am not critical of your question.
Mr. Decaire: Okay.
Mr. Fallon: But I'm not sure that she understands where you're
coming from, okay, and I don't want to have a
speaking objection.
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Mr. Decaire: No, and I appreciate that and I think you and I both
understand the difficulties of this whole thing, but - so I am wondering, what do you want to do? How do
you want to rectify this?
Mr. Fallon: Can I talk to you outside?
Dkt. No. 73-1 at 62-64.
The parties continued the discussion, "off the record." Dkt. No. 73-1 at 64. When the
attorneys returned, there was no further mention or discussion of the issue and defense counsel
continued to question Plaintiff, on the record. Id. Throughout the remainder of the deposition,
the issue regarding the qualifications of the interpreter and veracity of the testimony was not
discussed. Id. at 64-112. No objections were preserved.
Six months later, Plaintiff's deposition transcript was annexed as an exhibit in support of
Defendants' motion for summary judgment. See Dkt. No. 33-11. Plaintiff opposed the motion
but failed to raise any objection to the propriety of the transcript or the need to strike the
transcript as unreliable. See Dkt. No. 35.
At this juncture, the Court finds the motion untimely. Any objection to the interpretation
of Plaintiff's testimony at her deposition should have been raised in a motion to strike before the
Magistrate Judge during discovery and not on the eve trial in a motion in limine. Accordingly,
Plaintiff's motion to preclude the use of her deposition testimony at trial is denied.
3.

Testimony Related to 2016 Assault

Plaintiff moves to preclude Defendants from offering testimony or evidence related to an
alleged physical altercation between Plaintiff and her former father-in-law in 2016 that resulted in
hospital treatment. See Dkt. No. 60 at 1.
Rule 402 of the fed. R. of Evid. provides that "evidence which is not relevant is not
admissible." Relevant evidence has "any tendency to make the existence of any fact that is of
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consequence to the determination of the action more probable or less probable than it would be
without the evidence." Fed. R. Evid. 401. However, even if evidence is relevant, it may be
excluded if its probative value is outweighed by its potential to unduly prejudice a party. Fed. R.
Evid. 403.
Here, the Court notes that while Plaintiff moves to exclude evidence or testimony related
to the 2016 altercation with her former father-in-law and subsequent hospital treatment, curiously,
she intends to offer evidence about a "breakdown" in 2017 and subsequent medical treatment.
See Dkt. No. 71-4 at 5; Dkt. No. 77 at 6-7. The Court finds that the probative value of testimony
related to both incidents is not outweighed by the prejudicial effect. Accordingly, Plaintiff's
motion to preclude evidence related to the 2016 incident is denied.
C.

Defendants' Motion in Limine
1.

Witnesses Not Previously Disclosed

On January 11, 2019, Plaintiff filed a witness list and identified thirteen witnesses to
testify at trial: Plaintiff; Angela Fang; Kyle Wettekin; Defendants; Shawn Harrington; Dr. HungTat Lo; Susan Carleo; Maria Yu; Harita Chiu; Custodian of Records for St. Joseph's Hospital;
Anthony Blumetti, PhD; and Dominic Tso. Dkt. No. 52. On January 14, 2019, Defendants
moved to preclude testimony from witnesses not listed on Plaintiff's initial disclosures including
Maria Yu, Harita Chiu, and Susan Carleo. Dkt. No. 71-4 at 5. Defendants contend, and Plaintiff
does not deny, that the January 11, 2019 disclosure was the first time Plaintiff identified Yu,
Chiu, and Carleo. Plaintiff did not provide the names of these witnesses in any initial disclosure,
supplemental disclosure or discovery response prior to January 11th. See Dkt. No. 71-1.
Federal Rules of Civil Procedure Rule 37(c) provides, in pertinent part:
If a party fails to provide information or identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that information
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or witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.
A party that fails to disclose information pursuant to Rule 26 or fails to amend a previous
response, is not permitted to use such information as evidence, unless there is substantial
justification provided for the failure and such failure is harmless. Bynum v. Metro. Transp. Auth.,
2006 WL 6555106, at *1 (E.D.N.Y. 2006) (citing Fed.R.Civ.P. 37(c)(1)). In determining
whether a witness should be precluded, the court should consider: "(1) the party's explanation for
the failure to comply with the [disclosure requirement]; (2) the importance of the testimony of the
precluded witness [es]; (3) the prejudice suffered by the opposing party as a result of having to
prepare to meet the new testimony; and (4) the possibility of a continuance." Patterson v.
Balsamico, 440 F.3d 104, 117 (2d Cir. 2006). The purpose of Rule 26 disclosures is to alert the
opposing party that the witness may be called to support the party's claims and further, that the
opposing party may need to take discovery from that named witness. The Defendants' knowledge
of the existence of a witness does not satisfy the Plaintiff's disclosure obligation. Schiller v. City
of New York, 2008 WL 4525341, at *4 (S.D.N.Y. 2008). It is Plaintiff's burden to establish lack
of prejudice, not Defendants' burden. Castro v. City of New York, 2009 WL 2461144, at *6
(E.D.N.Y. 2009).
Here, Plaintiff does not attempt to explain or refute her failure to comply with the Rule 26
disclosure requirements. Plaintiff argues that testimony from Susan Carleo, a nurse employed by
Plaintiff's counsel, and Harita Chiu, Plaintiff's friend, is relevant. See Dkt. No. 77 at 6-7.
Plaintiff claims that Ms. Carleo and Ms. Chiu were present at the Independent Medical
Examination and witnessed Plaintiff's alleged "breakdown." See id. Plaintiff asserts that the
witnesses will testify as to the details surrounding that day including a subsequent hospital visit,
the records for which have been produced. See id. at 7.
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At this juncture, the Court will not speculate as to what statements any witness will make
and reserves its decision on this motion. If Plaintiff calls either Ms. Carleo or Ms. Chiu to testify,
Defendants may object to the testimony and the Court will issue a ruling at that time.
A different conclusion is reached however, with respect to Defendants' motion to preclude
Ms. Yu from testifying. From a review of the record, it appears that Ms. Yu was present during
Plaintiff's deposition and was identified as a "consultant." See Dkt. No. 73-1 at 45-46. In
opposition to Defendants' motion, Plaintiff did not present any argument regarding the necessity
or relevance of Ms. Yu's testimony and has not made an offer of proof in regard to her proposed
testimony. Based upon the Court's decision to deny Plaintiff's motion to preclude the use of her
deposition testimony, the Court finds no probative value in Ms. Yu's potential testimony.
Accordingly, Defendants' motion to preclude Ms. Yu from testifying at trial is granted.
2.

Economic Loss

Defendants move to preclude Plaintiff from presenting evidence in support of a claim for
lost wages and/or economic loss. See Dkt. No. 71-4 at 3.
Rule 26(a)(1)(A)(iii) provides:
a computation of each category of damages claimed by the disclosing
party - - who must also make available for inspection and copying as
under Rule 34 the documents or other evidentiary material, unless
privileged or protected from disclosure, on which each computation
is based, including materials bearing on the nature and extent of
injuries suffered[.]
In Plaintiff's First Response to Defendants' Interrogatories, she provided information
related to where she was employed at the time of the accident, the dates of her employment, her
position, the name of her supervisor, and her salary. Dkt. No. 71-2 at ¶ 6. When asked if she
claimed an impairment of earning capacity or loss of future earnings as a result of the injuries she
allegedly sustained in the accident, Plaintiff responded:
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Plaintiff at this time is unable to fully and completely respond to this
Demand inasmuch as discovery in this action has not yet begun, and
Plaintiff does not have the benefit of total and full discovery of all of
the necessary facts and information to effectively and precisely list the
totality of the future impairment of her earnings.
Dkt. No. 71-2 at ¶ 7.
While Defendants argue that this response does not satisfy Rule 26(a)(1)(A)(iii), Plaintiff
maintains that even assuming that the response is deficient, Plaintiff testified about her lost wages
during her deposition. Plaintiff opposes Defendants' motion to preclude "evidence of Plaintiff's
loss of wages and other economic loss" but does not specify what evidence she intends to
produce. At this juncture, the Court cannot speculate as to what may be adduced at trial and
reserves its decision on this motion. To the extent that any evidence is produced at trial with
respect to lost wages, the Court will rule on its admissibility after hearing the foundation that has
been laid.
3.

Negligent Hiring1

Defendants move to preclude Plaintiff from presenting evidence in support of a claim for
negligent hiring or retention. See Dkt. No. 70 at 16-17. While Plaintiff has not responded to
Defendants' motion, Plaintiff's Request to Charge includes a charge for "Negligent Hiring or
Retention of Employee." See Dkt. No. 54 at 14.
Defendants' request is improperly asserted in a motion in limine. In essence, Defendants
are asking this Court to rule, as a matter of law, that Plaintiff cannot present a theory of liability.
"[I]t is inappropriate [ ... ] to seek what is effectively partial summary judgment in the guise of a
motion in limine." See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998).
Defendants' motion, on this ground, is denied.

1

This argument was presented in Defendants' Pretrial Memorandum of Law. Dkt. No. 70 at 16-17.
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III. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion in limine regarding Plaintiff's traffic citation is
GRANTED; and the Court further
ORDERS that Plaintiff's motion in limine regarding evidence related to an incident with
Plaintiff's former father-in-law in 2016 is DENIED; and the Court further
ORDERS that Plaintiff's motion in limine regarding the use of her deposition transcript at
trial is DENIED; and the Court further
ORDERS that the Court RESERVES decision on Defendants' motion to preclude Harita
Chiu and Susan Carleo from testifying at trial; and the Court further
ORDERS that Defendants' motion to preclude Maria Yu from testifying at trial is
GRANTED; and the Court further
ORDERS that the Court RESERVES decision on Defendants' motion to preclude
Plaintiff from introducing evidence of economic loss; and the Court further
ORDERS that Defendants' motion to preclude Plaintiff from introducing evidence in
support of a claims for negligent hiring/retention is DENIED; and the Court further is
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 23, 2019
Albany, New York

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