Moore et al v. Keller et al

Filing 109

ORDER ON MOTIONS IN LIMINE: It is Ordered that 1) Plaintiffs # 96 Motion is GRANTED; (I.A) Evidence that Michael Moore was admitted to a psych ward in 1973 is PRECLUDED; (I.B) Evidence that an unverified urine test result showed Michael Moore had o ne or more drugs in his system is PRECLUDED; (II.A) Evidence that Michael Moore may have had a prior physical altercation with one of his children, along with evidence of any of Michael Moores prior criminal convictions, is PRECLUDED; (II.B) Defendan ts may refer to the plaintiff Lise Y. Moore as a step-mother, but any specific evidence that she is not the biological mother of plaintiffs Sabria Moore and Jalia Graham is otherwise PRECLUDED; (III.A) Evidence that plaintiff Sabria Moore was subsequ ently charged with theft by shoplifting in Georgia and petit larceny New York is PRECLUDED; (III.B) Evidence that plaintiff Jalia Graham was subsequently charged with petit larceny in New York is PRECLUDED; 2. Defendants # 95 Motion is GRANTED in p art and DENIED in part; (I) Evidence or argument regarding SUNY Upstates potential obligation to indemnify defendants is PRECLUDED; (II) Evidence regarding defendants disciplinary history, personnel records, or other allegations of misconduct is PREC LUDED IN PART as follows: (a) the employment evaluations for the named defendants are PRECLUDED; (b) a visitor complaint filed against defendant Nappo in January of 2021 is PRECLUDED; (c) records concerning an incident in October of 2013 that resulte d in defendant Kellers termination is NOT PRECLUDED; (III) Defendants motion to preclude plaintiffs from introducing evidence or testimony about the dismissal of the criminal charges stemming from their arrests in this case is DENIED; (IV) Defendants motion to preclude plaintiffs expert from testifying about claims brought by Michael Moore is GRANTED; (V) Defendants motion to preclude plaintiffs from offering any evidence as to damages they may have sustained from Michael Moores hospitalization is GRANTED; (VI) Defendants motion to preclude plaintiffs from offering testimony or evidence about lost wages is DENIED; (VII) Defendants motion to preclude plaintiffs expert from offering certain opinion evidence about defendants use of force is DE NIED subject to appropriate expert qualification; (VIII) Defendants motion to preclude plaintiffs expert from offering certain other opinion evidence is DENIED subject to appropriate expert qualification; 3. Plaintiffs # 105 Letter Brief/Motion obj ecting to certain aspects of defendants witnesses possible testimony is DENIED without prejudice to renew at trial; and 4. Plaintiffs # 106 Second Letter Brief/Motion is DENIED as follows: (a) plaintiffs request to preclude testimony or evidence ab out defendants promotion or current rank and duties is DENIED; (b) plaintiffs request for voir dire questioning about the Derek Chauvin verdict is DENIED; and (c) plaintiffs request for a missing witness instruction is DENIED without prejudice to renew. Signed by Judge David N. Hurd on 4/22/2021. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------LISE Y. MOORE, SABRIA
MOORE, and JALIA GRAHAM,
Plaintiffs,
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5:16-CV-1230

MICHAEL KELLER, MICHAEL
JORGENSEN, and JOSEPH NAPPO,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

SIDNEY P. COMINSKY, LLC
Attorneys for Plaintiffs
1500 State Tower Building
Syracuse, NY 13202

SIDNEY P. COMINSKY, ESQ.
SYLVIA BODE KRAUS, ESQ.

HON. LETITIA A. JAMES
New York State Attorney General
Attorneys for Defendants
300 South State Street, Suite 300
Syracuse, NY 13202

AIMEE COWAN, ESQ.
Ass’t Attorney General

DAVID N. HURD
United States District Judge
ORDER ON MOTIONS IN LIMINE
This case is set for a jury trial on Monday, April 26, 2021 at 9:30 a.m. in
Utica, New York. The parties have moved in limine for pre-trial rulings on

the admissibility of certain anticipated evidence or argument. Dkt. Nos. 95,
96, 105, 106, 107.
A motion in limine is a motion made “on or at the threshold.” Luce v.
United States, 469 U.S. 38, 40 n.2 (1984). “The term is used in the broad
sense to refer to any motion, whether made before or during trial, to exclude
anticipated prejudicial evidence before the evidence is actually
offered.” Walker v. Schult, 365 F. Supp. 3d 266, 275 (N.D.N.Y. 2019) (cleaned
up).
“The purpose of an in limine motion is to aid the trial process by enabling
the Court to rule in advance of trial on the relevance of certain forecasted
evidence, as to issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial.” SLSJ, LLC v. Kleban, 277 F.
Supp. 3d 258, 263 (D. Conn. 2017) (cleaned up).
“Motions in limine may be directed toward barring specified evidence or
argument and may be based on any of the grounds available under the
Federal Rules of Evidence.” 3 Moore’s Federal Practice § 16.77(4)(d)(ii).
“Evidence should be excluded on a motion in limine only when the
evidence is clearly inadmissible on all potential grounds.” Walker, 365 F.
Supp. 3d at 275 (cleaned up). “The movant has the burden of establishing
that the evidence is not admissible for any purpose.” Id. Of course, “[t]he
trial judge may reserve judgment on a motion in limine until trial to ensure
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the motion is considered in the proper factual context.” Id. And finally,
“[t]he court’s ruling regarding a motion in limine is subject to change when
the case unfolds.” Id.
Upon review of the parties’ briefing in light of the governing evidentiary
standards, it is
ORDERED that
1. Plaintiffs’ motion (Dkt. No. 96) is GRANTED;
(I.A) Evidence that Michael Moore was admitted to a “psych ward” in
1973 is PRECLUDED;
(I.B) Evidence that an unverified urine test result showed Michael
Moore had one or more drugs in his system is PRECLUDED;
(II.A) Evidence that Michael Moore may have had a prior physical
altercation with one of his children, along with evidence of any of Michael
Moore’s prior criminal convictions, is PRECLUDED;
(II.B) Defendants may refer to the plaintiff Lise Y. Moore as a
“step-mother,” but any specific evidence that she is not the biological mother
of plaintiffs Sabria Moore and Jalia Graham is otherwise PRECLUDED;
(III.A) Evidence that plaintiff Sabria Moore was subsequently charged
with theft by shoplifting in Georgia and petit larceny New York is
PRECLUDED;

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(III.B) Evidence that plaintiff Jalia Graham was subsequently charged
with petit larceny in New York is PRECLUDED;
2. Defendants’ motion (Dkt. No. 95) is GRANTED in part and DENIED in
part;
(I) Evidence or argument regarding SUNY Upstate’s potential
obligation to indemnify defendants is PRECLUDED;
(II) Evidence regarding defendants’ disciplinary history, personnel
records, or other allegations of misconduct is PRECLUDED IN PART as
follows:
(a) the employment evaluations for the named defendants are
PRECLUDED;
(b) a visitor complaint filed against defendant Nappo in January of
2021 is PRECLUDED;
(c) records concerning an incident in October of 2013 that resulted in
defendant Keller’s termination is NOT PRECLUDED;
(III) Defendants’ motion to preclude plaintiffs from introducing
evidence or testimony about the dismissal of the criminal charges stemming
from their arrests in this case is DENIED;
(IV) Defendants’ motion to preclude plaintiffs’ expert from testifying
about claims brought by Michael Moore is GRANTED;

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(V) Defendants’ motion to preclude plaintiffs from offering any
evidence as to damages they may have sustained from Michael Moore’s
hospitalization is GRANTED;
(VI) Defendants’ motion to preclude plaintiffs from offering testimony
or evidence about lost wages is DENIED;
(VII) Defendants’ motion to preclude plaintiffs’ expert from offering
certain opinion evidence about defendants’ use of force is DENIED subject to
appropriate expert qualification;
(VIII) Defendants’ motion to preclude plaintiffs’ expert from offering
certain other opinion evidence is DENIED subject to appropriate expert
qualification;
3. Plaintiffs’ letter brief (Dkt. No. 105) objecting to certain aspects of
defendants’ witnesses’ possible testimony is DENIED without prejudice to
renew at trial; and
4. Plaintiffs’ second letter brief (Dkt. No. 106) is DENIED as follows:
(a) plaintiffs’ request to preclude testimony or evidence about
defendants’ promotion or current rank and duties is DENIED;
(b) plaintiffs’ request for voir dire questioning about the Derek Chauvin
verdict is DENIED; and
(c) plaintiffs’ request for a missing witness instruction is DENIED
without prejudice to renew.
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IT IS SO ORDERED.

Dated: April 22, 2021
Utica, New York.

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