Cooper Crouse-Hinds, LLC v. City of Syracuse, New York et al

Filing 265

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiffs' motions in limine (Dkt. Nos. 228, 229, 230, 231) is DENIED-in part, and RESERVED-in- part; and the Court further ORDERS that Defendant City's motions in limine (Dkt. Nos. 222, 247) is GRANTED-in-part, DENIED-in-part, and RESERVED-in-part; and the Court further ORDERS that Defendant County's motion in limine (Dkt. No. 219) is DENIED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/31/22. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
COOPER CROUSE-HINDS, LLC, COOPER
INDUSTRIES, LLC,
Plaintiffs,
vs.
5:16-cv-1201
(MAD/ATB)
CITY OF SYRACUSE, NEW YORK, COUNTY OF
ONONDAGA, NEW YORK,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

SQUIRE PATTON BOGGS LLP
1211 Avenue of the Americas, 26th Floor
New York, New York 10112
Attorneys for Plaintiffs

BRIAN D. STARER, ESQ.
VICTOR GENECIN, ESQ.

SQUIRE PATTON BOGGS LLP
41 S. High Street, Suite 2000
Columbus, Ohio 43215
Attorneys for Plaintiffs

D. REES ALEXANDER, ESQ.
DANELLE M. GAGLIARDI, ESQ.
REBEKAH M. SINGH, ESQ.
VINCENT ATRIANO, ESQ.

HANCOCK ESTABROOK, LLP
1800 AXA Tower I
100 Madison Street
Syracuse, New York 13202
Attorneys for Defendant City of Syracuse

JOHN G. POWERS, ESQ.
MARY L. D'AGOSTINO, ESQ.

CITY OF SYRACUSE
CORPORATION COUNSEL
233 East Washington Street
Room 300 City Hall
Syracuse, New York 13202
Attorneys for Defendant City of Syracuse

RAJU I. FINNEY, ESQ.

CITY OF SYRACUSE
LAW DEPARTMENT

TODD M. LONG, ESQ.

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233 East Washington Street
300 City Hall
Syracuse, New York 13202
Attorneys for Defendant City of Syracuse
ONONDAGA COUNTY
DEPARTMENT OF LAW
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, New York 13202
Attorneys for Defendant Onondaga County

BENJAMIN M. YAUS, ESQ.

THE WLADIS LAW FIRM, PC
6312 Fly Road
East Syracuse, New York 13057
Attorneys for Defendant Onondaga County

KEVIN C. MURPHY, ESQ.
CHRISTROPHER BAIAMONTE, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs Cooper Crouse-Hinds ("CCH") and Cooper Industries ("CI") initiated this action
on October 4, 2016, against Defendants City of Syracuse and County of Onondaga for claims
under the Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA"). See Dkt. No. 1. On October 25, 2021, this Court denied Defendant County's
motion for summary judgment, granted-in-part and denied-in-part Defendant City's motion for
summary judgment, and granted Plaintiffs' motion for partial summary judgment with respect to
liability. See Dkt. No. 204. In advance of a bench trial scheduled for April 5, 2022, the parties
have filed motions in limine. See Dkt. Nos. 219, 222, 228, 229, 230, 231, 247.
II. BACKGROUND

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The Court assumes the parties' familiarity with the background of this case. For a
complete recitation of the relevant facts, the parties are referred to the Court's October 25, 2021
Memorandum-Decision and Order. See Dkt. No. 204.
III. 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 of certain forecasted evidence. See Luce v. United States, 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). 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. Group, 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.
The Second Circuit has noted that "the admission of evidence in a bench trial is rarely
ground for reversal, for the trial judge is presumed to be able to exclude improper inferences from
his or her own decisional analysis." BIC Corp. v. Far Eastern Source Corp., 23 Fed. Appx. 36,
39 (2d Cir. 2001) (citations omitted). Thus, while standards for admissible evidence are not "out
the window entirely" in a bench trial, "all doubts at a bench trial should be resolved in favor of
admissibility." Dreyful Ashby, Inc. v. S/S "Rouen", No. 88-CV-2890, 1989 WL 151685, *2
(S.D.N.Y. Dec. 12, 1989).

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The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of
Evidence. That Rule provides as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of
reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
In reviewing the admissibility of expert testimony, "the district court has a 'gatekeeping'
function under Rule 702—it is charged with 'the task of ensuring that an expert's testimony both
rests on a reliable foundation and is relevant to the task at hand.'" Amorgianos v. Nat'l R.R.
Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)). The rule set forth in Daubert applies to
scientific knowledge, as well as technical or other specialized knowledge. See Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
As the Second Circuit has explained,
[i]n fulfilling this gatekeeping role, the trial court should look to the
standards of Rule 401 in analyzing whether proffered expert
testimony is relevant, i.e., whether it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence. Next, the district court must determine whether the
proffered testimony has a sufficiently reliable foundation to permit
it to be considered. In this inquiry, the district court should
consider the indicia of reliability identified in Rule 702, namely, (1)
that the testimony is grounded on sufficient facts or data; (2) that
the testimony is the product of reliable principles and methods; and
(3) that the witness has applied the principles and methods reliably
to the facts of the case. In short, the district court must make
certain that an expert, whether basing testimony upon professional

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studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert
in the relevant field.
Amorgianos, 303 F.3d at 265-66 (internal alterations, quotations, and citations omitted). The
Court must also consider the fact that "experience in conjunction with other knowledge, skill,
training or education ... [may] provide a sufficient foundation for expert testimony," and "[i]n
certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert
testimony." Advisory Committee Notes, 2000 Amendments, Fed. R. Evid. 702; see also Kumho
Tire, 526 U.S. at 156 ("[N]o one denies that an expert might draw a conclusion from a set of
observations based on extensive and specialized experience").
"In undertaking this flexible inquiry, the district court must focus on the principles and
methodology employed by the expert, without regard to the conclusions the expert has reached or
the district court's belief as to the correctness of those conclusions." Amorgianos, 303 F.3d at 266
(citation omitted). "In deciding whether a step in an expert's analysis is unreliable, the district
court should undertake a rigorous examination of the facts on which the expert relies, the method
by which the expert draws an opinion from those facts, and how the expert applies the facts and
methods to the case at hand." Id. at 267. "A minor flaw in an expert's reasoning or a slight
modification of an otherwise reliable method will not render an expert's opinion per se
inadmissible." Id. "The judge should only exclude the evidence if the flaw is large enough that
the expert lacks good grounds for his or her conclusions." Id. (quotation and other citation
omitted).
As the courts and Advisory Committee have made clear, "the rejection of expert testimony
is the exception rather than the rule." Fed. R. Evid. 702, Advisory Committee's Note; see also
E.E.O.C. v. Morgan Stanley & Co., 324 F. Supp. 2d 451, 456 (S.D.N.Y. 2004); U.S. Info. Sys.,

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Inc. v. Int'l Bhd. of Elec. Workers Local Union No. 3, 313 F. Supp. 2d 213, 226 (S.D.N.Y. 2004).
"This principle is based on the recognition that 'our adversary system provides the necessary tools
for challenging reliable, albeit debatable, expert testimony.'" Melini v. 71st Lexington Corp., No.
07-CV-701, 2009 WL 413608, *5 (S.D.N.Y. Feb., 3, 2009) (quoting Amorgianos, 303 F.3d at
267).
B.

Defendant County's First Motion in Limine: Defendants Were Required To
Introduce Evidence of Their Response Costs
Defendant County asserts that Plaintiffs were required to introduce evidence of their

response costs pursuant to Rule 26(a) of the Federal Rules of Civil Procedure. Rule 26(a)
provides:
Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated
or ordered by the court, a party must, without awaiting a discovery
request, provide to the other parties ... 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
Fed. R. Civ. P. 26(a). Defendant County states that "incurring response cost is a necessary
element of Plaintiffs' causes of action under 42 U.S.C. §§ 9607(a) and 9613." Dkt. No. 219-6 at
10.
It is unclear what Defendant County requests, if anything. Regardless, whether Plaintiffs
have incurred a response cost has been addressed multiple times by this Court. See Dkt. No. 173
at 16; Dkt. No. 214 at 4. A motion in limine is not the proper vehicle to challenge an order on
summary judgment. Rivera v. Inc. Vill. of Farmingdale, 29 F. Supp. 3d 121, 126 (E.D.N.Y.
2013). Accordingly, Defendant County's first motion in limine is denied.

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C.

Defendant County's Second Motion in Limine: Evidence Not Produced in Discovery
May Not Be Introduced at Trial
Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that if a party fails to

comply with the requirements of Rule 26(a), "the party is not allowed to use that information or
witness to supply evidence … at a trial, unless the failure was substantially justified or is
harmless." Fed. R. Civ. P. 37(c)(1). Thus, the "'[f]ailure to provide damage computation
documents may result in exclusion of damages calculation evidence or expert testimony regarding
damage calculations at trial.'" Salvemini v. Target Stores, Inc., No. 3:08-CV-402, 2012 WL
1118062, *3 (D. Conn. Apr. 3, 2012) (citation omitted). Defendant County argues that Plaintiffs
should be precluded from introducing evidence which was not produced in discovery. Plaintiffs,
in their response, indicate no intention to introduce evidence which was not produced in
discovery. See Dkt. No. 244 at 9. Accordingly, at this time, "it is not clear that [Plaintiffs] have
run afoul of their Rule 26(a) obligations, a necessary condition to trigger Rule 37." Halpa v. Cty.
of Suffolk, No. 2:15CV2175, 2021 WL 1601112, *4 (E.D.N.Y. Apr. 23, 2021).
Defendant County seeks to exclude Dr. Campbell's testimony for a similar reason. "He
could not identify any Cooper or CCH response costs in his report or during his deposition and he
should not be able to attempt to do so at trial," Defendant County argues. Dkt. No. 219-6 at 14.
Plaintiffs, however, contend that "Dr. Campbell's expert report directly references his reliance on
invoices." Dkt. No. 244 at 10. Therefore, Plaintiffs argue, Defendant County's motion in limine
seeking to preclude Dr. Campbell from testifying regarding damages is too broad. Id. The Court
agrees. Plaintiffs have disclosed that Dr. Campbell relied on certain invoices to form his
conclusions. Defendant County's motion seeking Dr. Campbell be precluded from testifying to

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response costs in toto, therefore, is too broad and denied. Dr. Campbell, however, may not testify
beyond that which is disclosed in the expert report.
D.

Defendant City's First Motion in Limine: Plaintiffs' Experts Are Cumulative
Defendant City moves this Court to preclude cumulative expert testimony. See Dkt. No.

222-1 at 2. Federal Rule of Evidence 403 allows a Court to exclude relevant evidence if its
"probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence." Fed. R. Evid. 403. Defendant City argues that Plaintiffs'
experts provide needlessly cumulative evidence. Specifically, Defendant City argues that four
experts opine that that the City used PCB contaminated sediment as cover material for its
municipal landfilling operation; three opine that Crouse Hinds did not generate PCBs in either its
manufacturing operations or its facility waste; three opine that dredged sediment encroached onto
the nearby wetlands; four opine that municipal waste from Plaza East encroached on the North
Landfill, leading to a PCB hotspot; three opine that foundry sand is harmless and does not contain
PCBs; and three opine that that municipal waste leachate contains hazardous waste. Dkt. No.
222-1 at 5. Plaintiffs, however, contend that their experts offer distinct opinions, observations,
and expertise regarding each opinion. See Dkt. No. 245 at 9.
A party may not "make its case through the sheer weight of successive expert testimony
. . . as to their identical conclusions on identical issues." United States v. Walker, 910 F. Supp.
861, 863 (N.D.N.Y. 1995). However, "[a] federal district court has the power to exclude evidence
in limine only when evidence is clearly inadmissible on all potential grounds" and "[u]nless
evidence meets this high standard, evidentiary rulings should be deferred until trial so that

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questions of foundation, relevancy and potential prejudice may be resolved in proper context."
Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 554 (E.D.N.Y. 2011).
As discussed in the March 24, 2022, pre-trial conference, the Court will determine
whether Plaintiffs' experts offer cumulative opinions in the course of the trial. Whether an expert
offers cumulative testimony will be decided in context and with the knowledge of the testimony
already proffered by the other experts. Accordingly, the Court reserves on Defendant City's
motion in limine to preclude Plaintiffs' experts from testifying because their opinions are
cumulative. See Nat'l Union Fire Ins. Co., 937 F. Supp. at 287.
E.

Defendant City's Second Motion in Limine: Plaintiffs' Experts Offer Mere Ipse Dixit
Opinion
Defendant City argues that Plaintiffs' experts rely on ipse dixit opinion rather than actual

scientific or technical methodology and expertise. Specifically, Defendant City argues that
Plaintiffs' experts relied on historical documents and other reports provided by Plaintiffs rather
than their own scientific or technical methodology and expertise. See Dkt. No. 222-1 at 7.
As stated above, in reviewing the admissibility of expert testimony, "the district court has
a 'gatekeeping' function under Rule 702—it is charged with 'the task of ensuring that an expert's
testimony both rests on a reliable foundation and is relevant to the task at hand.'" Amorgianos,
303 F.3d at 265 (quoting Daubert, 509 U.S. at 597). "[T]he law grants a district court the same
broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate
reliability determination." Kumho Tire, 526 U.S. at 142; see also United States v. Romano, 794
F.3d 317, 330 (2d Cir. 2015).
Here, the Court does not find the Plaintiffs' experts' opinions to be unreliable because they
rely on historical documents and reports. Indeed, courts have recognized "circumstantial

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evidence, especially where the passage of time has made direct evidence difficult or impossible to
obtain" is often necessary in CERCLA litigation. Niagara Mohawk Power Corp. v. Chevron
U.S.A., Inc., 596 F.3d 112, 131 (2d Cir. 2010). Defendant City has recognized, here, there are "no
actual, live witnesses who possess first-hand knowledge." Dkt. No. 253-1 at 9. Plaintiffs' experts'
reliance on historical documents, therefore, is not only unsurprising, but reflects the reality of an
old and complex case in which context may be essential to understanding any underlying data.
Rule 702 recognizes the need for this flexibility, referring to "other specialized
knowledge." See, e.g., Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017) ("Scientists, too, form
professional opinions that are reasonably based on 'good science' but where the data is insufficient
for definitive scientific proof"). Accordingly, the Court recognizes the need for expert witnesses
to rely on broader contextual documents outside strict confines of scientific methodology. See,
e.g., Olindo Enterprises, Inc. v. City of Rochester, No. 05-CV-6246, 2008 WL 686259, *5
(W.D.N.Y. Mar. 7, 2008) (admitting expert testimony that relied on laboratory data and other
sources including "records and historical information produced concerning the Site").
Furthermore, in the context of a bench trial, "the usual concerns regarding unreliable
expert testimony reaching a jury obviously do not arise." MPM Silicones, LLC v. Union Carbide
Corp., No. 1:11CV1542, 2016 WL 11604974, *5 (N.D.N.Y. July 7, 2016) (collecting cases). "At
trial in the case at bar, the Court will be the trier of fact, and consequently will not have to
function as a gate-keeper for a jury. Using the discretion given to it, the Court will parse and
evaluate the evidence as it comes in." United States v. Alcan Aluminum Corp., No. 5:03-CV0765, 2006 WL 5278224, *1 (N.D.N.Y. June 9, 2006).
Here, the method to contest the factual underpinnings of expert opinions which Defendant
City has noted is "vigorous cross examination, [and] presentation of contrary evidence." Atl.

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Specialty Ins. Co. v. Gold Coast Dev., Inc., No. 05-CV-4863, 2008 WL 974411, *9 (E.D.N.Y.
Apr. 8, 2008) (citing Daubert, 509 U.S. at 596 (citations and quotations omitted)). "'[G]aps or
inconsistencies in the reasoning leading to [the expert's] opinion … go to the weight of the
evidence, not to its admissibility.'" Restivo, 846 F.3d at 577 (quoting Campbell ex rel. Campbell
v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2d Cir. 2001)); Olin Corp. v. Certain
Underwriters at Lloyd's London, 468 F.3d 120, 134 (2d Cir. 2006) (affirming admissibility of
expert testimony in a CERCLA where "problems went to the weight, rather than admissibility of
the testimony").
F.

Defendant City's Third Motion in Limine: Expert Reports Are Inadmissible Hearsay
Defendant City asserts that expert reports are "inadmissible under the Federal Rules of

Evidence." Dkt. No. 222-1 at 12. The Court is unaware of any broad rule that all expert reports
are inadmissible hearsay. Rather, "an expert's report may not be used as a conduit for the
inadmissible hearsay of another, but an expert may rely on hearsay sources that she used in
forming her opinion." In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 980 F. Supp.
2d 425, 442 (S.D.N.Y. 2013); In re Lyondell Chem. Co., 558 B.R. 661, 667 (Bankr. S.D.N.Y.
2016) ("An expert report that serves as a mere 'conduit' for hearsay likewise infringes the role of
the factfinder because 'the job[ ] of judging [the hearsay] witnesses' credibility and drawing
inferences from their testimony belongs to the factfinder'") (quoting Marvel Characters, Inc. v.
Kirby, 726 F.3d 119, 136 (2d Cir. 2013)).
Plaintiffs have indicated that they plan to "use their expert reports during their testimony
to refresh their recollections" pursuant to Federal Rule of Evidence 612. Dkt. No. 245 at 18.
Such use of expert testimony is proper, and therefore Defendant City's motion to preclude any
reference to the expert report is denied. To the extent Plaintiffs will seek to move portions of

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their experts' reports into evidence, the Court will determine at trial whether they are conduits for
hearsay. At this time, however, the Court declines to adopt a wholesale prohibition on the
admissibility of expert reports, as Defendant City has requested—particularly here where
"[h]aving available an expert's comprehensive written report may help a [factfinder] to more fully
understand and evaluate that expert's testimony and conclusions and their impact on the case."
N.A.A.C.P. v. A.A. Arms, Inc., No. 99 CV 3999, 2003 WL 2003750, *1 (E.D.N.Y. Apr. 4, 2003).
G.

Defendant City's Fourth Motion in Limine: Plaintiffs' Expert Noel Cannot Testify
That 80% of Remediation Costs Should Be Assigned to the Defendants
Defendant City seeks to preclude Plaintiffs' expert Noel from testifying that 80% of the

remediation costs should be assigned to Defendants. As discussed at the March 24, 2022 pretrial
conference, Federal Rule of Evidence 704(a) specifically permits an expert to proffer testimony
that "embraces an ultimate issue to be decided by the trier of fact." Fed. R. Evid. 704(a). "Indeed,
'if a witness (especially an expert) provides a solid foundation and explanation on an issue for
which the factfinder needs assistance, the factfinder might be left hanging if the witness cannot
cap off the testimony with a conclusion about the ultimate issue to which the expert is testifying.'"
Krys v. Aaron, 112 F. Supp. 3d 181, 192 (D.N.J. 2015) (quoting 3 Stephen A. Saltzburg, Michael
M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual § 704.02[1] (9th ed. 2006)).
Defendant City's motion to preclude Noel from testifying that 80% of damages should be
allocated to Defendants is therefore denied.
H.

Defendant City's Fifth Motion in Limine: Plaintiffs' Experts May Not Testify That
Materials on Plaza East Encroached onto Plaintiffs' Property
Defendant City argues that Dr. Blasting should be precluded from testifying that there is

"strong evidence" that materials on Plaza East were placed by Defendant City and encroached

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onto "Cooper property." Dkt. No. 222-1 at 16. Defendant City asserts that this is not a "matter
within his scientific, technical or specialized knowledge and it is based on the hearsay opinions of
others." Id.
As discussed at above, in the context of a bench trial, "the usual concerns regarding
unreliable expert testimony reaching a jury obviously do not arise." MPM Silicones, LLC, 2016
WL 11604974, at *5 (collecting cases). The method to contest the factual underpinning of expert
opinion which Defendant City has raised is "vigorous cross examination, [and] presentation of
contrary evidence." Atl. Specialty Ins. Co. v. Gold Coast Dev., Inc., No. 05–CV–4863, 2008 WL
974411, *9 (E.D.N.Y. Apr. 8, 2008). At this time, the Court finds that Mr. Blasting's expert
testimony is facially reliable to evaluate at trial.
I.

Defendant City's Sixth Motion in Limine: Plaintiffs' Experts May Not Testify to the
Interpretation of Historical Documents
Defendant City argues that Plaintiffs' experts should be precluded from offering their

interpretation of Crouse Hinds internal memoranda from the 1960s. Dkt. No. 222-1 at 17-21. As
stated above, this case involves events that transpired over fifty years ago and no witnesses with
firsthand knowledge are available to testify. Courts have recognized CERCLA litigation may
require "circumstantial evidence, especially where the passage of time has made direct evidence
difficult or impossible to obtain." Niagara Mohawk Power Corp., 596 F.3d at 131. The internal
memoranda from the 1960s provide useful context to an expert witness in crafting an opinion.
And again, "without the risk of poisoning the jury with misleading expert testimony of
limited probative value, see Daubert, 509 U.S. at 595, the Court can take in the evidence freely
and separate helpful conclusions from ones that are not grounded in reliable methodology."
Joseph S. v. Hogan, No. 06 CIV. 1042, 2011 WL 2848330, *3 (E.D.N.Y. July 15, 2011) (citing

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BIC Corp. v. Far Eastern Source Corp., 23 Fed. Appx. 36, 39 (2d Cir. 2001)). "In other words,
such evidence should be quite freely admitted so that the judge may have the benefit of live
testimony and cross-examination to determine how much weight, if any, to give to the expert's
conclusions." Kortright Cap. Partners LP v. Investcorp Inv. Advisers Ltd., 392 F. Supp. 3d 382,
402 (S.D.N.Y. 2019) (internal quotations omitted). The Court, therefore, declines to preclude
Plaintiffs' experts from relying on internal Crouse Hinds memoranda from the 1960s.
J.

Defendant City's Seventh Motion in Limine: Plaintiffs' Experts May Not Testify to
Non-PCB Drivers of Contamination
Defendant City argues that Plaintiffs' experts' written disclosures focus exclusively on

PCBs as the driver of contaminants at the facility, and therefore they should not be allowed to
testify about non-PCB drivers of contamination. Dkt. No. 222-1 at 21-25. Specifically,
Defendant City argues that the expert reports of Dr. Blasting, Dr. Campbell and Mr. Noel do not
address non-PCB contaminants.
Plaintiffs correctly point out that Mr. Noel opined that "VOCs, SVOCs, pesticides and
metals were also detected above screening criteria in the various media." Dkt. No. 224-5 at 8.
Accordingly, Defendant City's motion with respect to Mr. Noel is denied. Plaintiffs, however, do
not contest that Dr. Blasting and Dr. Campbell do not address non-PCB drivers of contamination
in their expert report. "The burden to prove substantial justification or harmlessness rests with the
party who has failed to disclose information pursuant to Rule 26." Wright v. Aargo Sec. Servs.,
Inc., No. 99 CIV. 9115, 2001 WL 1035139, *2 (S.D.N.Y. Sept. 7, 2001). Defendant City's
motion with respect to Dr. Blasting and Dr. Campbell is therefore granted.
K.

Defendant City's Eighth Motion in Limine: Plaintiffs May Not Subpoena Mary
Robinson

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For the reasons stated in the March 24, 2022 pretrial conference, Defendants' motion in
limine to preclude Mary Robinson from testifying is denied.
L.

Defendant City's Ninth Motion in Limine: Plaintiffs May Not Call Joseph Rutledge
as a Witness
Defendant City states that "[b]ecause Plaintiffs failed to identify Mr. Rutledge as a witness

prior to the close of discovery … he should be precluded from testifying." Dkt. No. 247 at 5. If a
party fails to disclose a witness under Federal Rule of Civil Procedure 26(a) or (e), a party may
not use that witness unless the failure to disclose was substantially justified or harmless. See Fed.
R. Civ. P. 37(c)(1). "In determining whether preclusion is appropriate, courts must consider: (1)
the reasons for the delay in providing the evidence; (2) the importance of the evidence precluded;
(3) the prejudice to the opposing party from having to address the new evidence; and (4) the
possibility of a continuance." In re Bear Stearns Companies, Inc. Sec., Derivative, & ERISA
Litig., 263 F. Supp. 3d 446, 452 (S.D.N.Y. 2017) (citing Softel, Inc. v. Dragon Med. & Scientific
Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997); Outley v. City of New York, 837 F.2d 587, 59091 (2d Cir. 1988)); see also Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (same).
Plaintiffs state Mr. Rutledge is a summary witness under Federal Rule of Civil Procedure
1006, and is not offering any new information. "[B]ecause a summary witness is not a fact
witness and will not be offering new information," the Court does not find any prejudice in
allowing Mr. Rutledge to testify. S.E.C. v. Badian, 822 F. Supp. 2d 352, 367 (S.D.N.Y. 2011).
Given the voluminous record in this case, the Court finds that the testimony will be important in
resolving this complex matter. Additionally, Plaintiffs disclosed to Defendants in April 2021,
approximately a year before the trial is scheduled to commence, that Mr. Rutledge will testify.
Any prejudice that Defendant City will incur is minimal.

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Defendant City's motion in limine to preclude Mr. Rutledge from testifying is therefore
denied.
M.

Defendant City's Tenth Motion in Limine: Plaintiffs May Not Introduce Deposition
Transcripts from Their Own Witnesses
Federal Rule of Civil Procedure 32(a)(4) allows the deposition testimony of a party to be

used at trial when the witness is unavailable "if the court finds … that the witness is more than
100 miles from the place of the hearing or trial or is outside the United States, unless it appears
that the witness's absence was procured by the party offering the deposition." Defendant City
suggests that Rule 32(a)(4) is inapplicable to a party's own witness because Rule 32(a)(1) states
"all or part of a deposition may be used against a party." See Dkt. No. 247 at 7. The Second
Circuit, however, has recognized that Rule 32(a)(4) "permits the use of a party's own deposition
testimony as evidence[.]" Junjiang Ji v. Jling Inc., No. 15-CV-4194, 2017 WL 6501865, *1
(E.D.N.Y. Dec. 19, 2017) (citing Richmond v. Brooks, 227 F.2d 490, 492 (2d Cir. 1955)).
Here, Plaintiffs have stated that "all of the witnesses for which Plaintiffs seek to introduce
deposition transcripts are" more than 100 miles from Albany, New York. Dkt. No. 258 at 6.
Defendant City does not assert that these witnesses are less than 100 miles from Albany, New
York. Defendant City's motion to exclude the deposition testimony of Mr. Olavarria, Mr.
Caporin, Mr. D'Agostino, Mr. Sensinger, and Mr. Ronkainen is therefore denied.
N.

Plaintiffs First Motion in Limine: Documents Received by Plaintiffs on March 14,
2022, Should Be Excluded
Plaintiffs ask the Court to preclude evidence that Defendant City received from third-party

Monsanto Company because it was provided to Plaintiffs after the close of discovery and less
than thirty days before trial, contrary to Fed. R. Civ. P. 26(a).

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On February 22, 2022, more than thirty days in advance of trial, Defendant City disclosed
newly discovered documents from a public source to Plaintiffs. Dkt. No. 246-3. Immediately
after, on February 23, 2022, Defendant City sent a subpoena to its process server, which was then
served on Monsanto the next day. Dkt. No. 246-7. In its subpoena duces tecum, Defendant City
sought authenticated and completed copies from Monsanto of the documents disclosed to
Plaintiffs on February 22. Dkt. No. 246-4. On March 11, 2022, Monsanto responded to the
subpoena, and Defendant City disclosed the documents to Plaintiffs within one business day, on
March 14, 2022. Dkt. No. 246-8.
"As a general matter, trial subpoenas are appropriate only in certain circumstances, such as
to secure an original document first disclosed during discovery, for the purposes of trial
preparation, or for memory recollection." Hickey v. Myers, No. 09-CV-01307, 2013 WL
2418252, *5 (N.D.N.Y. June 3, 2013) (citing Revander v. Denman, No. 00 Civ. 1810, 2004 WL
97693, *1 (S.D.N.Y. Jan. 21, 2004)). Here, Defendant City targeted specific documents from a
third-party in order to authenticate documents already in its possession. Therefore, the fact that
these documents were obtained after the close of discovery is irrelevant. Revander, 2004 WL
97693, at *1 (holding that a trial subpoena is appropriate "to secure an original document" already
in the requesting party's possession).
Fed. R. Civ. P. 26(a)(3)(B) states that "at least 30 days before trial" a party must disclose
"each document or other exhibit" it expects to offer at trial. Here, that deadline was March 4,
2022. As noted above, Defendant City issued its subpoena to Monsanto on February 23, 2022,
but did not receive a response until March 11, 2022. Fed. R. Civ. P. 37(c)(1) provides, in
pertinent part, that "[i]f a party fails to provide information ... as required by Rule 26(a), the party
is not allowed to use that information ... to supply evidence ... at trial ... unless the failure was

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substantially justified or was harmless." The Court has discretion in applying Rule 37(c)(1) to
preclude evidence. See Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006). The
Second Circuit has directed courts to consider the following factors when determining whether to
preclude evidence under Rule 37(c)(1):
(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) (alterations in original).
After considering, the factors in Patterson, the Court will not preclude the documents
disclosed to Plaintiffs on March 14, 2022. Defendant City did not comply with Rule 26(a)(3)(B)
because the documents were not in its possession prior to March 4. Defendant City discovered
relevant documents through its own research and promptly sought their authentication. The Court
also believes that the documents are important to trial.
The Court recognizes that Plaintiffs will suffer some prejudice by receiving documents
less than thirty days before the trial is scheduled to commence. The Court, however, finds that
the prejudice is severely diminished here because the information within the documents was
substantially disclosed to Plaintiffs on February 22, more than thirty days before trial.
Accordingly, Plaintiffs' first motion in limine is denied.
O.

Plaintiffs' Second Motion in Limine: Defendant City's Sampling Data Exhibits
Should be Excluded
Plaintiffs seek to exclude demonstrative maps prepared by Defendant City because their

authentication requires "the application of expertise, and yet were not disclosed in an expert
report." Dkt. No. 229 at 3. Defendant City states that the maps "spatially display the location of

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different concentrations of environment contaminants, which is data that comes directly from the
Plaintiffs' own remedial investigation reports." Dkt. No. 241 at 1 (emphasis in original).
Defendant City further states that the "demonstrative maps summarize the geographic location of
502 sediment samples, 84 groundwater samples, 71 soil borings[,] 87 test pit samples, and 21
surface water samples. In addition, the maps represent sample testing results for 11 different
hazardous substances at 16 different depth levels." Id. at 8 n.4.
Federal Rule of Evidence 1006 authorizes a party to "use a summary, chart, or calculation
to prove the content of voluminous writings, recordings, or photographs that cannot be
conveniently examined in court." Fed. R. Evid. 1006. The Court "possesses broad discretion to
determine the mode by which evidence is presented to the [factfinder]," and that "discretion
generally encompasses the authority to allow the use of demonstrative aides, including the display
of charts or tables accurately summarizing the content" of admissible evidence. Briese
Lichttenchnik Vertriebs Gmbh v. Langton, No. 09-CV-9790, 2013 WL 12061874, *3 (S.D.N.Y.
Dec. 18, 2013).
Plaintiffs argue that these maps require an expert to authenticate due to their technical
nature. The Court disagrees. The demonstrative maps simply overlay data provided by Plaintiffs
onto the relevant site. See, e.g., United States v. Espinal–Almeida, 699 F.3d 588, 608, 610–13
(1st Cir. 2012) (rejecting the need for an expert to authenticate "plotting coordinates from the
GPS"). Here, the demonstrative exhibits can be authenticated "by merely articulating facts, and
not opinions." Rivera v. Inc. Vill. of Farmingdale, 29 F. Supp. 3d 121, 140 (E.D.N.Y. 2013). The
Court does not find any highly technical expertise required to authenticate data overlayed onto a
map. And to the extent that Plaintiffs argue that the demonstrative exhibits "do not fairly
represent the [underlying] documents," such objections "go more to [the summary's] weight than

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to its admissibility." U.S. ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr.
Corp., 95 F.3d 153, 163 (2d Cir. 1996)).
Plaintiffs additionally argue that the Court should exclude the demonstrative exhibits
pursuant to Federal Rule of Evidence 403 because additional documents to review would result in
unfair prejudice. The Court finds that whatever prejudice the additional documents may create
does not substantially outweigh their probative value. The demonstrative maps summarize large
quantities of data that the Court believes may clarify the factual underpinnings of this complex
case.
P.

Plaintiffs' Third Motion in Limine: The Unauthenticated Version of the County
Option Agreement Should be Excluded
As discussed in the March 24, 2022 pretrial conference, the Court will rule on the

admissibility of both County Option Agreements at trial. See, e.g., Rivera v. Inc. Vill. of
Farmingdale, 29 F. Supp. 3d 121, 133 n.13 (E.D.N.Y. 2013) ("At present, this Court is unable to
assess where and when the countless photographs were actually taken, i.e., their authenticity, and
refrains from conducting this assessment until Plaintiffs attempt to introduce them at trial"). It is
premature at this stage to rule whether either version of the County Option Agreement can be
authenticated. United States v. Ulbricht, 79 F. Supp. 3d 466, 488 (S.D.N.Y. 2015) ("Whether the
Government can meet Rule 901's authentication standard with respect to the challenged exhibits is
a question best answered at trial. There simply is no basis to prejudge the Government's ability to
meet that standard").
The Court therefore reserves on Plaintiffs' motion in limine to exclude the unauthenticated
version of the County Option Agreement.

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Q.

Plaintiffs' Fourth Motion in Limine: Plaintiffs' Environmental Compliance Audits
are entitled to Self-Critical Analysis Privilege and Work Product Privilege
Plaintiffs request that the Court "exclude all environmental compliance audits performed

by Plaintiffs, as they are privileged under the self-critical analysis privilege and the work product
doctrine." Dkt. No. 231 at 3. "[N]either the United States Supreme Court nor the Second Circuit
have recognized" the self-critical analysis privilege. Zikianda v. Cty. of Albany, No. 1:12-CV1194, 2013 WL 936446, *3 (N.D.N.Y. Mar. 8, 2013). As the court in Zikianda observed, the
majority of the cases within this Circuit that have addressed the presence of the self-critical
analysis privilege have declared its existence doubtful and accordingly have not recognized it.
Zikianda, 2013 WL 936446, at *3 (collecting cases). Courts that have recognized the privilege
have weighed whether:
(1) the information in question results from critical self-analysis
undertaken by the party seeking protection, (2) the public has a
strong interest in preserving the free flow of the type of information
sought, (3) the information is of the type whose flow would be
curtailed if discovery was not allowed, and (4) with the expectation
it would remain confidential.
Zikianda, 2013 WL 936446, at *3 (citing Ovesen v. Mitsubishi Heavy Indus. of Am. Inc., 2009
WL 195853, at *2 (S.D.N.Y. Jan. 23, 2009)) (other citations omitted). "Once these high hurdles
have been met, nonetheless, the privilege would not preclude disclosure of pure facts or even
evaluative material that could not have been expected to be confidential." Zikianda, 2013 WL
936446, at *3.
Assuming the privilege exists in the Second Circuit, it is not applicable here. Plaintiffs,
who bear the burden in asserting the privilege, have only offered a "formulaic assertion" that
disclosure here would discourage compliance with regulatory and professional standards. See

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Haus v. City of New York, No. 03-CV-4915, 2005 WL 1705291, *3-4 (S.D.N.Y. July 21, 2005);
Ravenell v. Avis Budget Grp., Inc., No. 08-CV-2113, 2012 WL 1150450, *5 (E.D.N.Y. Apr. 5,
2012) ("I also reject the defendants' contention that the privilege applies because, having
presented only a conclusory assertion that the impetus to conduct such audits would be chilled in
the future"). Here, Plaintiffs have not specifically identified the documents they seek to protect,
instead broadly referring to environmental compliance audits. Plaintiffs have failed to
demonstrate that they would be "less likely to undertake this type of internal investigation in the
future if the resulting … reports were discoverable in litigation." Chamberlain v. City of White
Plains, No. 12-CV-5142, 2014 WL 12768502, *1 (S.D.N.Y. Oct. 14, 2014); E.B. v. N.Y.C. Bd. of
Educ., 233 F.R.D. 289, 296 (E.D.N.Y.2005) (requiring a "detailed and convincing showing" to
invoke the self-critical analysis privilege).
Moreover, self-critical privilege is a waivable privilege against disclosure, not an
evidentiary rule of preclusion. The privilege only applies to documents that "have been prepared
and retained on a confidential basis." Wimer v. Sealand Serv., Inc., No. 96 CIV. 8730, 1997 WL
375661, *1 (S.D.N.Y. July 3, 1997). Assuming that Plaintiffs have produced the environmental
compliance audits in discovery, and had not sought to claw back the documents, then the privilege
has been waived. Johannes v. Lasley, No. 17CV3899, 2019 WL 1958310, *5 (E.D.N.Y. May 2,
2019) (self-critical analysis privilege waived by failure to identify it on privilege log as a basis for
non-disclosure); Bravo v. Bd. of Cty. Commissioners for Cty. of Dona Ana, No. CIV 08-0010,
2009 WL 10706756, *3 (D.N.M. Nov. 24, 2009) ("even if the self-critical analysis privilege could
be recognized in the prison context which is doubtful, PHS clearly waived any such privilege by
failing to keep the QI information confidential").

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For similar reasons, Plaintiffs' claim of work-product privilege is denied. The
environmental compliance audits were not identified for this Court's review and Plaintiffs have
not prepared a privilege log. See, e.g., In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug.
2, 2002, 318 F.3d 379, 386–87 (2d Cir. 2003). Plaintiffs have failed to identify whether the
documents are fact product or opinion product, further frustrating meaningful review of their
privilege claim by this Court. See, e.g., In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d
180, 183 (2d Cir. 2007). And Plaintiffs have seemingly failed to keep their work product
confidential and have already disclosed it in discovery. Accordingly, Plaintiffs' motion in limine
to exclude the environmental compliance audits is denied.
IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiffs' motions in limine (Dkt. Nos. 228, 229, 230, 231) is DENIED-in
part, and RESERVED-in-part; and the Court further
ORDERS that Defendant City's motions in limine (Dkt. Nos. 222, 247) is GRANTED-inpart, DENIED-in-part, and RESERVED-in-part; and the Court further
ORDERS that Defendant County's motion in limine (Dkt. No. 219) is DENIED; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 31, 2022
Albany, New York

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